A reconciliation project

No legal advice, just some random commentary on the core principle of aboriginal rights jurisprudence in Canada

Month: August, 2011

The duty to consult and policy


A couple of really interesting cases, at least to people like me! (I work on aboriginal policy issues as a day job)

Here’s the question: Does the duty to consult apply to ‘policy decisions’?

Why is it important: The vast majority of decisions made by government which impact on aboriginal peoples are policy decisions

Here’s the problem: Policy decisions are generally not actionable

In Canada, decisions of ‘policy’ have long been shielded from scrutiny by the courts. There is a longstanding deference given to the government by the courts on ‘policy questions’ because policy issues are ‘polycentric’ – they involve a number of considerations (economic, distributive) that are not easily litigated, nor comprehended by the courts (which specialize on the law)

In Negligence, for example, it has long been held that there is a distinction between ‘policy actions’ and ‘operational actions’: policy actions cannot be sustained. A good example would be that allocating funding for road repairs (a policy decision) will not give rise to a negligence claim, whereas actually doing the road repairs (an operational action) would.

Honour of the Crown/duty to consult

Let’s be clear – the duty to consult and accommodate, as currently understood, applies only to claims of aboriginal rights, aboriginal title and treaty rights that have not been proved. Court have not held that there is an overarching or general duty to consult. And yet, some have argued since Delgamuukw (and before) that the Crown is require to "meaningfully consult" with aboriginal groups, prior to making policy decisions that might impact on aboriginal or treaty rights. (Unfortunately, most lawyers will assure you that the ratio, or the main point of law decided, in Delgamuukw really had little to do with consultation – the case is best thought of for the proposition that oral evidence of aboriginal elders is admissible into evidence. Notwithstanding, other statements by the court, in that case about consultation, are instructive and ought to be – and is – persuasive to policymakers).

However, it is becoming clear that the Honour of the Crown may impose a duty to consult on ‘higher level’ or policy decisions in certain circumstances. This position is pretty clearly articulated by the Supreme Court of Canada in Rio Tinto at para. 87, “As discussed above, a duty to consult may arise not only with respect to specific physical impacts, but with respect to high-level managerial or policy decisions that may potentially affect the future exploitation of a resource to the detriment of Aboriginal claimants.”

We should expect to see some caselaw developing in the aftermath of Rio Tinto that’s focused on ‘high-level management or policy decisions’. And we’re starting to see it, and it will be really interesting to see the evolution (expanding or limiting) of the scope of the duty to consult with respect to policy decisions.

In Adam’s Lake, the BC Supreme Court held that incorporation of a municipality invokes the Honour of the Crown and requires consultation. This case involves the much contested Sun Peaks Ski development. The court held that incorporation of a municipality would sufficiently disturb governance of the land, particularly land-use decisions, that it would prejudice the claimed aboriginal rights of the Adam’s Lake Band (at para 152):

The Municipality is not subject to the supervision of the Province except in regard to land use by-laws and the establishment of an official community plan. Thus the Municipality may potentially pass by-laws, make regulations, and establish financial policies that adversely impact the aboriginal rights and title claimed by the Band absent the supervision or control exercised by the Province and the Regional District prior to incorporation.

Having ruled in favour of Adams Lake, the court nonetheless refused to quash the order incorporating the municipality.

This case is currently on appeal, and it is one to watch.

Then we have the Adam’s case. In this case the Minister of Environment was ordered to develop a habitat restoration plan for a particular Caribou population, pursuant to the Species at Risk Act. However, the court went a step farther and suggested that “A broader view is required to be taken. This includes assessing the extent to which the ongoing violation of the SARA (by failing to post a Recovery Strategy) and continued inaction with respect to the boreal caribou would, in all of the circumstances discussed in this decision and in the more detailed Certified Record pertaining to the Decision, would be consistent with the honour of the Crown”.

Broader view, indeed. I wouldn’t be surprised if this case is also under appeal. Why? Because ‘continued inaction’ is often how the government responds to aboriginal concerns. This is likely due to the complexity of the area: legally, one must consider the effect on aboriginal rights (apparently) and Charter rights (particularly discrimination); fiscal considerations (there’s a limit to how much a government will spend on aboriginal issues); federal/provincial issues; federal-First Nations politics; among many other, lesser issues.

I imagine there is very little sympathy for this complexity at the community level – where most of the problems are manifested and the snail’s pace of progress is often all-too evident.

It’s also true that much of this complexity is attenuated when there is a good deal of political will to take action. (Of course, aboriginal groups aren’t exactly a major demographic, nor major funders of political parties – political clout is somewhat limited)

Without straying into other policy areas, the Adams decision suggests that continued inaction on the depletion of resources that are critically important to First Nations may itself be inconsistent with the honour of the Crown.

I find this an uncontroversial assertion with potentially wide-ranging impacts, considering the relatively high number of species that are currently or soon will be in decline. This, combined with the avariciousness of development in some parts of this country, means Ministers may need to consider the need to act a bit more carefully. More accurate; Minster’s will need to document instances of inaction. That documentation will make some interesting reading…

I must also say that a requirement to consult with aboriginal nations would lead to productive and meaningful dialogue between policy makers and rights holders. Moreover, the duty to consult requires good faith from all Parties, meaning the policy exchanges would need to be substantive and ‘evidence based’, rather than mere posturing. I believe this is a dialogue needed across the board on aboriginal policy issues. Given the problems have existed for so long and seem so intractable, the recognition of a duty to consult in the context of policy decisions gives me considerable hope for the future of aboriginal policy and the social, economic and juridical condition of aboriginal peoples.

Climate Change makes traditional knowledge more important

Shifting gears a little bit is a bit of a response to an article in IPS News. The article is here: www.ipsnews.net/news.asp?idnews=56864

The described project sounds extremely interesting, and I’ll be waiting to see whether any results will be published. The role of traditional knowledge in attenuating adverse impacts of climate change, or alternatively taking advantage of benefits of climate change, is poorly understood. More information on this is needed just about everywhere (and certainly in

One point to be made; however, is the difference between traditional knowledge as ‘observation’ and traditional knowledge as a knowledge system. In Canada, there has been a proclivity to focus on observations as traditional knowledge is applied in the policy process.

My understanding of traditional knowledge as a system is that it is holistic and integrated. This stands in stark contrast to western scientific empiricism, which is highly reductionist. In other words, scientists are generally more concerned with studying and understanding the components of a system, whereas traditional knowledge holders, I find, are often more focused on how the
system is inter-connected.

In the past 20 years, there has been a remarkable growth in interest in the western scientific community in connections and ‘inter-disciplinary studies’, particularly in environmental science. This is something I welcome and encourage. I also point out that traditional knowledge holders often have insights that would help the advancement of environmental science theory (a contribution I feel is often underplayed due to the emphasis on the ‘local’ nature of traditional knowledge).

At the same time, in order to apply traditional knowledge in the policy process, it is often ‘reduced’ and compartmentalized into observations. Observations that are ‘relevant’ whatever process indigenous peoples find themselves in. This is useful and important, but it is an incomplete portrayal of traditional knowledge.

As the climate changes, many of these observations will change. This will call into question the validity of the observation, and in some minds, of the traditional knowledge itself.

This would be wrong.

The reason is that the theoretical aspect of traditional knowledge, the understanding of the system and how different parts of the system are inter-connected, is precisely what indigenous peoples, scientists and
policy makers need. And we all need it very soon.

I sincerely hope that researchers working on climate change and traditional knowledge devote some attention to this broader, and more theoretical issue. I find it as important (and indeed, heavily intertwined) with the perplexing conundrum of what factors contribute to a ‘successful’ cultural shock in an indigenous community (or how can communities develop a cultural resiliency when there are profound changes – something relevant to climate change, but also to a host of other pressures on indigenous peoples, locally, regionally and globally)

Moulton Conracting v. Behn

An interesting case out of BC, which I believe may hold the potential for a bit of a disruptive event for aboriginal lawyers across the country. The case is Moulton Contracting v. Behn and the decision may be found at:

The issue in the case was framed by the BC Court of Appeal as:
[4] The central contests in this appeal concern the right of individual defendants to challenge instruments they, but not the collective, say are invalid because they violate collective rights, and the potential legal viability of the challenge, if a challenge can be mounted. The case arises in the context of self-help behaviour by some or all of the appellants in response to proposed logging in an area in which they say the Behn family exercises treaty or Aboriginal rights to hunt and trap.

At issue is whether individuals have the ability to pursue aboriginal rights claims, or whether these claims can only properly be brought by the First Nation (the court wasn’t faced with a claim from a competing collective, although this has come up in the past, and it will again). I’m not at all sure that the individuals in this case would have preferred to frame their issue in this fashion (I say this because there is a great deal of rather confusing discussion about ‘offensive’ and ‘defensive’ applications of aboriginal rights), but I’d be prepared to argue it on those terms.

I believe the Court may have expanded the proposition a bit, raising the spectre that this proposition would require treaty negotiations with every individual in the First Nation. In my mind, this is conflating recognition of aboriginal rights with exercise of self-determination, two interlinked, but distinct concepts.

Claimants in Behn rightly pointed out that in the context of criminal defense, it is common and accepted practice for individuals to assert collective rights. Apparently, this was part of an attempt to suggest that ‘defensive’ applications of aboriginal rights are acceptable (in this case, the proposed application was to require the province to prove it had a property right in the land at issue). I say this because the Court stated:
[32] The proposition that it does not lie in the mouth of individual members of the Fort Nelson First Nation to attack these Crown granted instruments, whether as an offensive move by starting a claim or as a defensive move in response to a claim, leaves to the Fort Nelson First Nation the responsibility of speaking on behalf of the collective through its authorized representatives. It leaves to the First Nation the decision as to when and how to engage in the consultation spoken of in the jurisprudence, when and how to settle issues in the collective’s best interests, and when not to settle, making all of these decisions bearing in mind their history, the community’s present and future needs, expectations and challenges, and the nature of the issues presented.

However, the court found claimant’s argument unpersuasive, highlighting a fairly baseless policy reason for denying standing to individuals:
[34] It seems to me the proposition that the Behns have standing because they assert a defence rather than a claim, a shield rather than a sword, is to put form over substance. It is, further and in my view, to expose the respectful resolution of issues between the provincial (or federal) government and the First Nation to the risk of an end-run, whereby individuals may engage in self-help rather than using available legal channels and, when challenged by court process, then litigate individually these communal rights. In this sense, allowing individuals to assert a position on a collective right may have unexpected consequences and, simply, lacks order.

Form over substance? Formal standing rules that deny access to the courts to deal with issues of substance would appear to me to place form over substance.

This leaves a broader open question for consideration: should individuals have standing to enforce aboriginal rights, either ‘defensively’ or ‘offensively’? At the outset, I find this ‘defensive’/’offensive’ casting of aboriginal rights rather troubling because its confusing and it skirts a simpler, broader, and stronger assertion: That First Nations are not the only claimants capable of seeking enforcement of aboriginal or treaty rights.

Before getting into why I think individuals (or sub-groups) are able to enforce aboriginal rights as a matter of law, I should address the policy issue. I must say, I can now see why several states express concern about recognition of collective rights at international law: such recognition seems to expose hornet’s nests very similar to that in this case.

But is it really a hornet’s nest? Asking for recognition of aboriginal and//or treaty rights is not the same as negotiating a constructive arrangement (like a treaty) to address these rights. It is simply suggesting that the state (federal or provincial Crown) is not recognizing these rights. This is not the same as claimants like the Behns suggesting that the treaty process is illegitimate because their interests are not represented (like Spookw v Gitxsan Treaty Society), or seeking independence from a constructive arrangement because they were not represented. Each of these instances are sticky, but distinct from the issue at hand.

Greater recognition of aboriginal rights cannot be contrary to reconciliation – the concept pre-supposes an honourable and just foundation is being constructed for an ongoing future relationship. This requires all perspectives to be represented in the process of reconciliation (whatever that process may be). It seems contrary to the central concept of reconciliation (and justice) to kick difficult issues down the road by simply failing to consider the perspectives of First Nations or their citizens.

Some may think this a bit of a frivolous question. But this is not a new issue in aboriginal law. I recall reading decisions by John Beverly Robinson, in an extremely liberalized legal system (ie, focused on individual rights only) on whether First Nations could be treated as a ‘constructive corporation’ or not for the purpose of standing (an important issue because at the time, rights were understood to be held individually; Robinson held first yes, then later, maybe not – a bit of a setback for recognition of collective rights). The legal status of First Nations may have been more or less settled since the 19th Century, but what hasn’t been settled is the relationship between the individual, the collective and the state, particularly with respect to aboriginal and treaty rights.

In law, the conclusions of the Court of Appeal may be consistent with established aboriginal rights jurisprudence. They are inconsistent with the established human rights of indigenous peoples. If this decision is allowed to stand, then Canada may be out of compliance with its international human rights obligations.

I alluded above to the reluctance of some States to recognize collective rights. The Inter-American Commission on Human Rights and the Inter-American Court, among others have had to deal with these complications.

Human rights are universal and they have been traditionally been actioned by individuals, even though those rights are collective in nature. This means that although the collective maintains a right of self-determination, any individual may petition when collective rights are violated. This makes a lot of sense because there are a variety of situations where an entire indigenous nation, or its representatives, are unable or unwilling to petition. It also makes sense because it preserves the universality of human rights (if only part of a collective is particularly impacted, then the mere existence of a collective right cannot be used as a shield to deprive them of their human rights)

In fact, the Inter-American system allows petitions from individuals or organizations on behalf of others whose human rights are being violated. This is important in Canada for two reasons.

First, Canada is a member of the Organization of American States, and a declarant to the American Declaration on the Rights and Duties of Man. The Inter-American Commission has competence to hear cases of violations of human rights elaborated in the Declaration. This means that the jurisprudence of the Commission (and the Court) are relevant to an understanding of Canada’s international human rights obligations.

Second, the Inter-American Court and the Commission are global leaders in articulating indigenous rights; likely the result of the existence of so many cases in the Americas implicating indigenous peoples. The Court has elaborated legal frameworks for indigenous title that closely mirrors the aboriginal title framework in Canada. I would suggest that the legal frameworks for ‘safeguards’ (Saramaka) and consultation and accommodation share even more similarities (with some admitted underlying differences)

Without getting into too much detail, my understanding of the discussion on admissibility in the Saramaka case (I highly recommend para. 93 on an unrelated topic, by the way) suggests that individuals may press claims for indigenous rights and indigenous title irrespective of the views and perspectives of a nation’s leadership. (Case of the Saramaka People v. Suriname Judgment of 28 November 2007 (Preliminary Objections, Merits, Reparations and Costs) – Inter-American Court of Human Rights).

Here is the argument of the state (at para 19):
The State asserted in its first preliminary objection that neither of the two original petitioners, namely the Association of Saramaka Authorities and the twelve Saramaka captains, had standing to file a petition before the Inter-American Commission. More specifically, the State argued that the petitioners did not consult the paramount leader of the Saramakas, the Gaa’man, about filing the petition. This alleged disregard for Saramaka customs and traditions is tantamount, according to the State, to a failure to meet the requirements of Article 44 of the Convention, as the petitioners allegedly had no authorization from the chief leader, and thus no authority to petition on behalf of the whole Saramaka community.

Highlighting some of the considerations I noted above, the Court noted the relevant Articles of the Inter-American Convention on Human Rights (one reason I don’t cite the Articles here is that Canada never signed, nor ratified the Convention). At para. 23, the “Tribunal finds no conventional prerequisite that the paramount leader of a community must give his or her authorization in order for a group of persons to file a petition before the Inter-American Commission to seek protection for their rights, or for the rights of the members of the community to which they belong. “

As someone who believes one of the greatest injustices of the modern world is the continuing denial of self-determination, it is extremely disheartening to see indigenous self-determination invoked to presumably deny enjoyment of universal human rights. I’m not alone – the repeal of s.67 seeks to expand enjoyment of human rights (as recognized under the Canadian Human Rights Act), while balancing self-determination (I could get into this another time, but I believe the balance must be struck such that indigenous customary law and self-determination can not violate the universal human rights of individual First Nation citizens)

These issues of standing and juridical personality (is the First Nation the only proper claimant or can traditional governments lodge aboriginal rights challenges) are major challenges to reconciliation. Leaving them unresolved because they appear difficult means that any ‘reconciliation’ achieved may be incomplete. This would serve not to resolve injustice, but to perpetuate it.

The Behns may have a legitimate claim that this decision of the Court of Appeal is inconsistent with Canada’s international human rights obligations. If that is the case, and if the rule in this case were held to be invalid, it could result in some growth in the area of aboriginal litigation, particularly from representatives of traditional governments, community based environmental activists and others. On the other hand, it might allow First Nations to be the claimant of choice (and expending the vast amount of limited community resources to go with litigation), in favour of being intervenors (a much less expensive proposition – and an intervenor the court would likely listen to very carefully).

This wouldn’t preclude First Nations from entering into treaty negotiations (or treaties), but does suggest that if First Nations enter treaties which violate human rights, then individuals may claim against the First Nation or Canada (there is suggestion in the Inter-American Court that such treaties may not even be valid at law – another topic for another day, when I’m more focused on this individual/collective balance)