A reconciliation project

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

Month: November, 2011

Situation in Attawapiskat

The Red Cross is in response. Opposition parties are outraged. The Crown has sent in a team to investigate. Another First Nations community is in crisis. And that community is not alone, a fact that will quickly lost in the short-lived public debate over this episode. At the outset, I must state that as with many issues, this is not a partisan debate – it seems whichever political party controls the government inherits and perpetuates such issues – because the problem is not a political problem, it is a systemic problem.

At the root of the problem is federal neglect of First Nations. Not so much in terms of funding and funding levels for First Nations, but a gross negligence in terms of evaluating whether that funding is contributing to improvement in the lives of First Nations citizens.

Compounded to the neglect for individual welfare of First Nations citizens is an ongoing federal neglect of the treaty relationship between First Nations and the Crown.

How bad is this neglect? Well, consider this. The federal government provides funding for all public services at Attawapiskat, as for most First Nations. In order for a First Nation to build a school, employ a water treatment plant operator, or perform any of a number of functions, it must enter into an extremely detailed funding arrangement with the federal Crown.

Taxpayers may be stunned by the amount of work that goes into getting money out of the federal door, particularly when compared to the amount of work that does not go into assessing what that funding was used for or whether it was successful. I’m not stunned, I’m outraged.

Let’s be clear. First Nations have to report on all the funding they receive. In fact, they over report on it (or so said the Auditor General). Those reports are not used by AANDC to assess and change how funding is delivered and I don’t believe those reports even speak to whether outcomes are improving in First Nations.

If AANDC’s mission is to improve the welfare of individual First Nations citizens, that is negligent conduct. AANDC’s mission might have nothing to do with this, it might be solely focused on maintaining a proper relationship between First Nations, as nations, and the federal Crown (a mission statement I would support).

On the treaty front, as far as I’m aware, this funding isn’t provided because there is a treaty relationship, but rather out of the largesse of federal First Nations policy. I write largesse somewhat sarcastically, although I note that without a legal basis compelling the provision of funding to First Nations, the Crown could withdraw funding for public services at any time. Because funding is so discretionary, there really isn’t any need to determine whether the funding is being used for any productive purpose – until public attention is focused on a particularly appalling situation. Unilaterally setting funding levels appears to me to be negligent pursuit of a nation-to-nation relationship envisaged by the treaties.

Indeed, First Nations, and frankly political actors, are left with several potential arguments to address such issues, many of which deal with impugning funding levels. However, success on such issues doesn’t really address the core problem that funding is a discretionary activity and is generally severable from outcomes (in other words, there’s no reason funding needs to be effective).

I’m much more interested in establishing ‘substantive’ rights to healthcare, education, housing and other specific areas. For example, a treaty right to education has recently been asserted in court and will likely be winding its way through the court system over the next several years. Similar treaty rights could be established in other contexts. This would mean that the federal Crown would need to guarantee a basic level of education or other services to First Nation citizens, rather than relying on simple provision of funds to execute such activities (to First Nations or third parties).

Alternatively, the Canada Health Act states, at section 3, “It is hereby declared that the primary objective of Canadian health care policy is to protect, promote and restore the physical and mental well-being of residents of Canada and to facilitate reasonable access to health services without financial or other barriers.” Again, First Nations are residents of Canada. This section tells me that the primary objective of Canadian health care policy is to ensure First Nations have reasonable access to health services. It doesn’t say that the federal government should provide funding to First Nations and then let the chips fall where they may.

Finally, and complementary to other arguments, there is a very strong human rights argument to be made that Canada is obligated to ensure that where citizens have access to services (education, drinking water, health care), that First Nations have access to the same services in a non-discriminatory fashion. This is, again, not an argument about funding, but an argument about whether public housing, drinking water and health care in Attawapiskat or other First Nations is substantially the same as it is elsewhere in Canada. International law is important, which is why I often write about it.

I’ve written recently about accountability – this, I think is the real accountability gap right now, not salaries and conflicts of interest. It’s a gap that needs to be addressed honestly and openly by First Nations and the Crown together. It would be a difficult discussion for First Nations because it would likely mean different kinds of strings attached to funding (and maybe more). It would likely be an extremely difficult discussion for the Crown because, inter alia, there is a tremendous amount of time, work and money that would be needed to even begin contemplating progress, if progress is measured in terms of outcomes, rather than funding levels.

All the more reason to start sooner, rather than later.

First Nations and Accountability

It appears we are headed for another exhausting national discussion on First Nations Accountability. The Bill is C-27, “An Act to Enhance the Financial Accountability and Transparency of First Nations”. Actually, the discussion is not so much about accountability as it is about salaries. I’m not concern
ed about salary disclosure, but I am gravely concerned about this debate because it debases the nationhood of First Nations and perhaps by extension, all indigenous nations in Canada.

If this was a discussion about accountability, then we would be engaged in a discussion about how to ensure that First Nations are more accountable to their citizens, and less accountable to federal departments.

To whom are First Nation Chiefs accountable? When people complain about allegedly undemocratic actions taken by the federal Parliament, they are told that Parliament is held in check by the ‘will of the people’. Which people? Voters (Canadian citizens). Are First Nations Chiefs accountable to voters (First Nations citizens)? Yes, with a major caveat: First Nations are also accountable to a wide range of other interests. These additional accountabilities serve to undermine the democratic process on a much greater scale than poor or improper expenditure management.

The government has introduced legislation to publish annual financial statements, as well as salaries for Chief and Council to the general public. I believe that right now, annual financial statements are available to First Nations citizens, upon request. Very few people currently exercise their right to see these statements (I certainly don’t, that’s more because I feel I don’t need to). If I had a specific quibble about the legislation, I’d suggest the disclosure provision – s. 6(1) – is harsh because it would require Chief and Council to publicly disclose all income, including business income. I don’t believe any other politicians in Canada are subject to such a requirement. Other politicians are subject to conflict of interest rules, which are apparently much less stringent than this legislation.

The thinking behind this legislation is that if First Nations citizens knew how much Chiefs and councillors make, and had access to financial statements, then they would demand great change in how First Nations are administered. On many reserves, First Nations citizens have alleged such gross disparities between council salaries and the average salary on reserve for years. And yet, change has been slow to come.

I won’t enter the debate of an appropriate scale of salary for Chief and Council, except to note that many calculations of tax equivalencies are unnecessarily inflated and to note that I find that Administration is often both under-resourced and under-paid (Administration being the arm of First Nations government that is generally tasked with doing all the work).

There is a much bigger problem here than salary. It is a problem of accountability – paradoxically left unaddressed by this and other grand attempts to reform salary administration and governance on-reserve.

The proposed legislation would make financial information available to the general public. This will allow non-First Nation interest groups with the opportunity to scrutinize such transactions. Why would they be interested in doing so? Perhaps with the intention of fomenting discord within a community. This doesn’t seem particularly sinister to me, although it is a bit disingenuous because interest groups have incentives to foment discord over whatever issues interest those groups. However, in a democracy, I don’t believe it is ever bad for the citizenry to ask questions or have as much information, credible or not, independent or not, on what their government is doing.

Much more sinister is the potential to erode the accountability that First Nations Chiefs have to First Nations citizens. First Nations must be accountable to their electorates, but also to unelected federal officials. As this legislation clearly demonstrates, First Nations also need to be accountable to the legislature; else they may face even deeper incursions into their ability to administer their own governments. Interest groups pursue change, both within communities and outside them.

Providing information to interest groups which may have a mission only to reduce taxpayer outlays, for example, will likely require First Nations, rather than the Crown, to ensure they are accountable not only to First Nations citizens, but to all taxpayers (irrespective of whether they are Canadian citizens). Similarly with environmental NGOs, First Nations could easily find themselves needing to be accountable to a diversity of domestic and foreign interests which are generally uninterested in the day to day administration of reserve lands.

The First Nations accountability Act will likely decrease the accountability of First Nations to their citizens and increase their accountability to interest groups through either the Crown or Parliament, once the latter two are presented with information from interest groups on expenditures and use of First Nation monies.

In effect, what I see here is an opportunity for interests groups to pull the levers of the government in order to force change on communities, not change demanded by First Nation citizens, but change demanded by people largely unimpacted by reserve administration.

I also see another example of government and the Canadian population being very eager to treat First Nations as administrative sub-units of the Canadian government. There is a valid basis for doing so. Equally (at least) valid is the view that First Nations are successors-in-interest to indigenous nations which have never relinquished their sovereignty. Failing to even consider the latter will be a major impediment to any meaningful reconciliation between First Nations and Canada.

What is the solution?

In short, I don’t have one. I think the ‘problem’ being addressed through this legislation is not the real problem. In fact, I believe greater transparency may lead to less accountability to First Nation citizens – based on the relative political strength of interest groups. Again, I don’t object to disclosures (although I feel the disclosure required by this Act is overbroad, whereas conflict of interest, nor ways and means to deal with real or apparent conflicts of interest are unimportant to C-27). I’m more concerned that the Act will move First Nations away from being accountable to their citizens. I’m most concerned that what will never enter this debate, or many like it, is any kind of discussion about the inherent sovereignty of indigenous nations.

I am an ardent advocate for First Nations opening their books, in a clear and transparent manner, to First Nation citizens. This means salary disclosure for Chief, Council and top officials, but also easily digestible statements that show how much money is coming in and how much money is being expended on various program areas. First Nations spend enough reporting to the federal government that a glossy annual report for citizens should be easy enough to put together. But, I’m not sure such voluntary measures are enough (although a forced referendum in each First Nation, asking a question about disclosure would produce interesting results)

The repeal of section 67 of the Canadian Human Rights Act was a good first step. It allows a forum to air a wide range of disputes citizens may have against Council. Not only that, I’ve written in an earlier post that First Nations should consider developing their own human rights commissions to deal with complaints. This could result in a means of ensuring accountability while enhancing self-government, keeping in mind that First Nations Human Rights Commissions decisions could be reviewed by the Canadian Human Rights Commission, to ensure fairness and justice).

Some have called for the creation of a national First Nations ombudsman to deal with disputes between First Nations and Chiefs and Councils. I’m more lukewarm to this idea, only because I don’t believe it meaningfully contributes to greater recognition of First Nations self-government. I believe this would be true even if the Ombudsman’s office was itself a First Nation institution, or controlled by First Nations. The reason is that it wouldn’t appear to provide a community or nation level mechanism for redress that could be tailored to particular cultural, legal or social circumstances of various nations. But it would provide a vehicle for some sort of hearing and perhaps redress. That, in itself, could provide greater incentive for First Nations to improve accountability to their citizens.

Honour of the Crown and international obligations

Given the string of cases dealing with consultation and policy (Rio Tinto, Adam’s Lake and Adams, for example), it appears there is a growing basis to argue that the Honour of the Crown attaches to the implementation and perhaps the negotiation of international treaties.

Recall that ‘high level’ policy decisions require honourable conduct on the part of the Crown, so long as those decisions might impact on aboriginal or treaty rights. Consider the relationship between treaty rights and the Migratory Birds Convention Act, particularly in the 60s and 70s. It seems that implementation of obligations can profoundly impact the exercise of aboriginal and treaty rights. While I don’t believe all implementing legislation is immune from being struck down as inconsistent with s. 35, international environmental and human rights obligations would likely receive great deference from the Court in this regard.

More troubling are indirect effects of international obligations. For example, the Boundary Waters Treaty establishes the International Joint Commission, which is tasked with regulating transboundary water levels, among other things. If a First Nation has an aboriginal right to fish in boundary waters, rest assured that the selection of water levels will impact on that right to fish. Is the IJC the ‘Crown’ for the purposes of the duty to consult and accommodate or should the Crown be required to consult before entering into an international agreement that could impact such constitutional rights…or both?

Some modern land claims agreements (for both First Nations and Inuit) contain specific clauses that require consultation by the Crown prior to taking on any international obligations that might be related to any of the rights guaranteed under the agreement. This, to me, is only a logical extension of the application of the Honour of the Crown: the Crown is required to consult prior to contemplating any conduct which might directly or indirectly impact on the exercise of aboriginal or treaty rights.

The bigger question I see is not whether the Honour of the Crown applies to domestic implementation of international obligations (I think it clearly does), but whether the Honour of the Crown requires particular conduct in the development of ‘international’ policy. This requires a more cautious and tentative approach which must be tied to the Crown’s unilateral and de facto (as opposed to de jure) assertion of control over foreign relations. (I assert it is de jure because the Doctrine of Discovery has been repudiated as a valid legal doctrine – more on why this is important on a future post devoted to Discovery)

More immediately; however, an issue worth exploring in more depth is whether and how First Nations may apply international treaties, particularly where First Nations are either the intended beneficiaries of the treaty or where the treaty will affect First Nation rights, in the context of aboriginal rights cases. Rather than a relatively boring and repetitive post on applying international law in Canadian courts, I’m hoping to post a minor (and likely inadequate) tribute to Mr. Justice Binnie on the issue of indigenous peoples as third party beneficiaries of treaties (based on his concurrence in Mitchell v. MNR)


Interesting article earlier this month from the indigenous nationhood blog. The subject: genocide. Genocide was also reportedly raised at the AFN Health Forum a couple of weeks ago. I have no doubt that as the Truth and Reconciliation Commission continues its work, the issue of genocide will continue to be raised on the margins of the Commission’s work.

Let me start by offering a commonly used definition for Genocide. It comes from the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. Article 2 of the Convention states:

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religions group, as such:

(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group

There’s no doubt there exists a strong legal basis to assert Canada committed genocide during the residential schools era. I’m sure this is a subject is open for some debate, although I have yet to hear one. I can suggest, for example, that one would need rock-solid proof that the oft-cited musings of influential officials to ‘kill the Indian and save the child’ were more than just musings and were, in fact, government policy. I’m sure others have researched this issue quite carefully and could likely provide such evidence. The more interesting question in my mind is not whether the legal definition of genocide is met by Canada’s past actions, but what to do about it today.

Genocide is a peremptory norm of international law. It is an act which is indefensible. This makes an allegation of genocide a very serious allegation. In my mind, if one believes in good conscience that a country has committed genocide they are morally, and perhaps legally, obligated to do something about it.

This raises the subject of legal tactics. Proponents of the argument to Canada committed genocide often leave end their discussion of the subject with their own analysis and a statement that something must change. Whether the ‘something’ is important is one matter, but whether a simple statement is enough is quite another. In my mind, the question of what to do about an allegation of genocide is more important than whether a violation has occurred.

Very few people suggest Canada could or would be taken to the International Criminal Court, the International Court of Justice or a even special International Tribunal devoted to Residential Schools to answer allegations of genocide. I’ve similarly never heard anyone suggest civil servants, priests and others from the residential schools era should be hunted down for international prosecution. This I find interesting because Article 1 of the Convention classifies Genocide as a crime and it is usually Article 2 of the Convention that is used by advocates to suggest Genocide, attempted Genocide or complicity in Genocide has occured.

International prosecution is certainly one possible course of action. I wouldn’t be surprised if the idea has been suggested and I’ve simply never heard it. There are profound practical, technical and political obstacles associated with mounting such a strategy. These obstacles make serious pursuit of international prosecution a longshot, to put it mildly. Although international prosecution is a course of action possible in theory, it is a near impossibility in practice.

However, the goal of mounting a genocide argument is not to prosecute perpetrators of alleged crimes. Canada has apologized for Residential Schools and has initiated a Truth and Reconciliation Commission. This is extremely important because the Truth and Reconciliation Commission could be viewed as one form of redress. Truth and Reconciliation processes sometimes involve amnesty to ensure the truth is uncovered and to ensure that society as a whole can learn from the experience and can heal. In this sense, it is logical that international prosecution is not currently contemplated. It may be more important to move forward by exposing the truth, providing remedy for the damage caused and charting a path forward.

The legitimacy of the TRC as a form of redress is rightly questioned by commentators who cite comments by politicians suggesting doubt that genocide, or any other crimes may have occured during the residential schools era. For my part, I think for Canada to move forward, through the Truth and Reconciliation Commission or otherwise, some sort of acknowledgement, recognition and redress must flow for the collective damage suffered by First Nations, as communities and as peoples.

The broader goal of mounting a genocide argument, either in the context of residential schools or elsewhere, appears to me to be changing contemporary Canadian policy. In that vein what I would suggest a more appropriate role for arguments regarding genocide is suggested in current human rights law such is the Convention on the Rights of the Child, the Convention on the Elimination of all Forms of Racial Discrimination and in the Human Rights Council itself. In contemporary human rights monitoring bodies, one may argue that Canada’s current policies as a whole require radical modification. By ‘radical’, I suggest going to the root of the policies and programs and conducting a full examination of why the policies are in place and are needed as well as how those policies should be implemented. Such an exercise can only be conducted with the full effective participation of indigenous peoples and that any changes contemplated can only occur with the free prior informed consent of indigenous nations.

Many contemporary policy issues are discussed in human rights forums, although actually having such a discussion in a human rights forum would be quite challenging. Even raising an argument that Canada committed genocide during the residential schools period could face serious obstacles – even in a human rights monitoring body. However, the reason why this argument is important is that it provides a powerful and compelling reason to request a major and fundamental overhaul of several major policy areas, implicating, among others, health, social welfare and education.

As I’ve detailed in other posts, and will possibly continue to, many human rights mechanisms allow for both monitoring and individual redress. Many also have procedures which allow claimants to engage the state in a confidential dialogue (sometimes negotiation, sometimes mediation), to allow for the discussion of sensitive political issues in a frank and open manner.

Irrespective of the approach selected, I believe that for those who seriously believe that the residential schools period ‘fit the international definition’ of genocide, they are obligated to attempt to action that belief. Genocide continues to occur today in many parts of the world, and is a crime that thrives on the silence of citizens, civil society and the international community. In Canada, the policies of the past may be repudiated in the present, but their legacy on our nations, on Canada and even on individuals continues in an often invidious manner.

Call for Submissions – Indigenous peoples’ languages and culture – deadline 17 Feb. 2012

Civil Society Section
Office of the United Nations High Commissioner for Human Rights

Expert Mechanism on the Rights of Indigenous Peoples

Call for submissions

Indigenous peoples’ languages and culture

Deadline – 17 February 2012

Dear All,

The Expert Mechanism on the Rights of Indigenous Peoples is calling for submissions on the role of languages and culture in the protection and promotion of the rights and identity of indigenous peoples (see Human Rights Council Resolution 18/8, September 2011).

The study will be prepared for the Expert Mechanism’s fifth session in July 2012.

Submissions are invited from:

-indigenous individuals and peoples and/or their representatives
-non-state actors including non-governmental organisations
-national human rights institutions
-any other relevant stakeholders

Deadline: 17 February 2012

Send to: expertmechanism

For more information, please see the website of the Expert Mechanism on the Rights of Indigenous Peoples:


Lax Kw’alaams

The Lax Kw’alaams decision was released on Thursday. I’m sure many will be disappointed in this unanimous judgment, and I believe there is plenty of material for critical scholars in the reasons. Rest assured, I have my own issues with this case, which I will likely address at some later point in time.

I’m a bit of a contrarian, so I’d rather discuss one positive aspect of this judgment, authored by Mr. Justice Binnie. I’ve heard he’s retiring, so this may be his last aboriginal law judgment.

One of the issues raised in Lax Kw’alaams is the issue of pleadings. The Court was quite direct that in civil litigation, there are specific rules for pleadings which require the plaintiff to clearly and specifically articulate the nature of its claim. This is extremely important because it allows the defendant to properly defend the claim.

I’ve been perplexed about claim characterization for quite some time. Some of my concern or confusion likely stems from the complexity of defining and proving aboriginal rights claims, at least when compared to other types of civil litigaton. Then again, maybe all civil litigation is complex. An aboriginal rights claim is defined by the plaintiff in its pleadings. But the characterization of that claim is an issue of law. This means the court defines the claim. It strikes me one could get all the way through a trial only to see a court characterize a claim in such a way as to surprise plaintiff, defendant or both. As a matter of law, characterization of a claim can even be altered on appeal, something I believe this occurs with disturbing frequency. Disturbing because courts may be accused of outcome-based decision-making (if the case is disposed of and neither party has had the opportunity to respond to the proper characterization of the claim) or they may be complicity in dramatically increasing the cost of litigation, by ordering another trial.

What I like about this judgment is that Mr. Justice Binnie outlines the appropriate procedure for determination of aboriginal rights claims at paragraph 43 (it’s a bit lengthy, so I’ll spare a full quote for now).

What I like about the Lax Kw’alaams judgment is that Mr. Justice Binnie has conveniently identified a four step approach. The first step is characterization of the claim. The reason why I think this is helpful is that it raises the possibility that either plaintiff or defendant could propose a phased approach to trial, requesting a finding on characterization before the evidentiary phase.

Aboriginal rights trials are, as I understand them, lengthy affairs (I have no point of reference for how long ‘regular’ trials take). This makes them quite expensive. It would be extremely helpful to have an idea what is being argued prior to the trial phase.

Mr. Justice Binnie’s approach also allows for refinement of the characterization during or after the evidentiary phase. Again, I find this to be remarkably helpful. As the Court notes, new issues often arise during trial. If nothing else, it would allow characterization of the right claimed to be dealt with through focused motions practice, rather than through an appeal of a trial judgment that, like this one, raises any number of issues – both factual and legal.

If a right were characterized in such a way as to be unsatisfactory to an aboriginal claimant, it could force an early tactical decision to abandon the claim (even taking a risk of having a future claim barred), proceed or appeal. The appeal wouldn’t focus on what the evidence supports, but rather what the plaintiff is actually attempting to demonstrate to the court. This makes characterization of the right an issue of law that may be disposed of much more inexpensively than going through a trial and then evaluating characterization in light of the evidence presented (which itself raises a number of issues)

A two minute argument for something good that may be gleaned from the Lax Kw’alaams case.

A couple of recent developments on costs

Costs are very important in litigation because they define the transaction costs of bringing a case and can partially define the stakes related to winning or losing. In Canada, for example, the general rule is that the ‘loser’ of a civil action partially indemnifies the legal costs of the ‘winner’. This is generally understood to prevent parties from brining frivolous claims. It may also act as an impediment for parties with marginal cases from seeking relief in a court.

There are a variety of additional rules on costs, each of which has implications on the administration of justice. If a party to litigation is protracting the proceedings and increasing the expense of litigation, courts may award additional costs. This assists litigants with limited resources pursuing valid claims or defences when they are faced with extremely well resourced opponents which are more than capable of outspending on litigation expenses.

The first item involves Canada (Canadian Human Rights Commission) v. Canada (Attorney General). This case involved whether the Canadian Human Rights Tribunal (CHRT) can make an award of ‘costs’ for litigation expenses. The ability to award costs would greatly increase accessibility to the CHRC and the CHRT; however, the tribunal is a creature of statute, a statute which has apparently vague language regarding costs awards.

The Supreme Court of Canada held that the language in the enabling statute for the CHRT does not allow it to award costs. While the reasoning of the case is interesting, what’s more interesting is this ruling comes only months after the Canadian Human Rights Act exemption to Indian Act matters was lifted, providing First Nations and First Nations individuals with the ability to pursue a wider variety of claims in the CHRC/CHRT.

Given the capacity issues faced both by potential claimants and First Nations themselves, this development may dampen claims against Canada or against First Nations with considerable resources. Parties with considerable resources (either First Nations or Canada) have the ability to make any procedure both lengthy and expensive. However, the Canadian Human Rights framework contains several mechanisms to improve access to justice for potential claimants.

The second item involves an appeal of a costs award in a BC case. In Ahousaht Indian Band and Nation v. Canada (Attorney General), 2011 BCCA 425 the BC Court of Appeal delivered a bit of a double-whammy to the Ahousaht Indian Band. The issue was whether ‘special costs’ should be awarded. One reason for awarding special costs, I gather, is if the case establishes a new legal principle or presented a novel legal argument. This is particularly important in aboriginal law because s. 35 of the Canadian Constitution provides a less than complete articulation of every possible aboriginal right.

In fact, one of the reasons that reconciliation and the honour of the Crown are so important is that they provide a principled basis upon which the law may be articulated and may evolve over time.

One of my problems with aboriginal law jurisprudence is a perceived trend towards the importance of facts and evidence over what I would call more substantive issues. Of course, the counterpoint is that as legal norms are identified and articulated, what is left is precisely a series of factual arguments to ‘implement’ the rights.

In this case, the Court held that this case did not establish any major new precedent, nor was any novel legal principle articulated. Indeed, a rather lengthy trial was needed to flesh through an apparently extensive factual record in order to establish a particular aboriginal right. This couldn’t make anyone happy, because the case could be read as overturning a previous case which held that a similar right (to a commercial fishery) was not established. The Court held, and I think not improperly, that the difference between these two cases rested on the facts and the evidence.

The BC Court of Appeal then overturned the trial court’s award of special costs. I’m guessing that will cost the Ahousaht Indian Band somewhere in the neighbourhood of $3 million. Keep in mind, Ahousaht won the case, so they will still receive some indemnification from Canada, just not as much (makes me wonder how much it costs to lose).

What makes this disturbing is the amount of work and money it takes to lead these cases. This is mainly due to an evidentiary trend in aboriginal law that is focussed on particular facts, and admissibility of evidence. Again, facts and evidence are important parts of any civil action, I’m concerned more about the degree to which they are important here and above all, whether the associated costs act as a substantial barrier for indigenous nations seeking access to justice.

I believe that someday soon, a First Nation may well attempt to raise the twin issues of accessibility and costs in an international human rights forum. This could come either in terms of admissibility or in terms of the merits. On admissibility, one might argue that domestic remedies need not be exhausted for aboriginal rights claims due to the amount of time and cost required to receive relief. However more interesting would be a merits argument that aboriginal rights are distinct from all other property rights and constitutional rights in terms of the time and costs required to seek relief. This itself could be argued to be a form of substantive discrimination.

In the Inter-American system, for example, whereas demarcation of territories can be a lengthy and protracted process, the juridical recognition of those rights rarely requires the costly evidentiary burdens faced by First Nations.

In the meantime though, it remains to be seen whether the Ahousaht costs award will result in any serious chilling effect on the use of traditional civil litigation to establish aboriginal rights.