A reconciliation project

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

Month: December, 2011

Property Reform Part II

My last post was a critical examination of the arguments of proponents of on-reserve property reform. In this post, I’ll examine some of the claims of critics of the reform initiative. Again, it is most unfortunate that proponents of reform are quite dismissive of these claims and their underlying concerns (indeed, it is an odd way to advocate for change).

Claim 1: Reserve lands can only be held collectivelyFalse.

First, and as a general proposition, there is little doubt aboriginal title is a collective right. Even reserve land is held collectively by the First Nation (see Delgamuukw – http://canlii.ca/t/1fqz8 – for aboriginal title or Guerin – http://canlii.ca/t/1lpfn – for reserve land – although in Guerin, the collective nature of the First Nation’s interest was never actually in issue). Internationally, indigenous title is also recognized as a collective right held by the indigenous nation. This is true in terms of comparative law (for example, Mabo) and in terms of international forums (for example, Awas Tingni v. Nicaragua – http://www1.umn.edu/humanrts/iachr/AwasTingnicase.html ).

The distinction between collective rights and individual rights has been a major barrier to recognition of indigenous rights internationally and domestically. One of the major accomplishments of the UN Declaration on the Rights of Indigenous Peoples is its articulation of indigenous rights both as individual rights and as collective rights. Individualizing reserve property could undermine the indigineity, or the ‘Indianness’ of reserve lands.

There is a major caveat to this general proposition. First, as detailed in my last post, there are already a number of individual property rights held on reserves across the country. They are not fee simple rights, but they are not collective in nature. So far as I can tell, this has generally been the case for quite a long time.

Aboriginal title is a collective right and reserve lands are held collectively by the First Nation.

There is really no reason why, if a collective desires to do so, it should be deprived of the ability to order its internal affairs – including assigning and managing property rights.

The relationship between aboriginal title and reserve lands is another story for another day.

Claim 2: Individual ownership of reserve lands violates the treaties
False.

Unless I’m grossly misinformed, there is nothing in the treaties that requires a particular kind of land-holding. To me, the whole point of the treaties is that if treaty First Nations want to some day adopt individual ownership, they are free to do so (and don’t for a second thing this hasn’t been done before in Canada). By contrast, if treaty First Nations seek to preserve their traditional (and presumptively collective, see more below) means of relating to their lands, the treaties provide the freedom to do so. This of course, precludes specific language in treaties that precludes First Nations from adopting particular forms of land tenure for reserve lands.

Claim 3: Alienability of reserve lands is likely to occur if on-reserve property is reformed
True.

Despite the claims of proponents, it is very hard for me to imagine how the tremendous benefits they suggest come with individualization of property will come absent an expansive right of alienation (that’s the ability to transfer your land as you see fit). This is, of course, one of the major ‘benefits’ of fee simple title.

In order to ‘unlock’ the capital, one needs to offer the property up for security to a lender. In the event of default, the lender can then foreclose, take the property and sell it on the open market. If the ‘open market’ is defined only as citizens of the First Nation, the value of the property, at least for the purposes of securing credit, is diminished (because the market is smaller – this means there will be less competition among potential buyers and it raises the prospect that the property may stay on the market longer, increasing carrying costs). Ultimately, however, it seems inescapable that someone who is not a First Nations citizen (or a First Nation) will end up with a proprietary interest over reserve lands (like the bank).

This does not necessarily lead to a situation where parts of a reserve will be owned by non-natives in fee simple. But that is a real fear and it would create several very real problems (such as exacerbating the regulatory ones discussed below). I can’t escape the conclusion that non-natives will end up with some kind of interest in on-reserve property. One way or another, I believe that will lead to some very nasty and some very unpredictable conflicts.

While I see no reason that privatization will necessarily lead to a Dawes-style outcome in Canada, I think it’s a very real possibility, and that irrespective of safeguards put in place to attenuate alienability concerns, I see it likely reserve lands will be alienated to non-citizens (or non-First Nations).

Claim 4: Individual property could lead to an erosion of First Nation jurisdiction
True.

Emphasis on ‘could’. As mentioned above, one of the qualities of aboriginal title and traditional forms of relationship with the land is the concept of collective ownership. Individualizing land titles to make them appear more like provincial titles may import provincial land use and environmental laws into reserves.

Section 91(24) of the Constitution Act, 1867 states that the federal Parliament shall have exclusive jurisdiction over “Indians, and Lands reserved for the Indians”. Section 91(13) states that Provinces have exclusive jurisdiction over “Property and Civil Rights in the Province”. Why is this important? I mean, aren’t reserves “Lands reserved for the Indians”?

They are, but there is a line of cases which suggest that provincial laws of general application may nonetheless apply. “May” because there are very few cases involving reserve lands and provincial jurisdiction, most cases involve provincial attempts to exert jurisdiction over Indians. In these cases, a provincial law of general application concerning, say, civil rights, is held to apply so long as it does not affect the core area of federal jurisdiction.

The ‘core’ of federal jurisdiction is sometimes referred to as ‘Indianness’. While one could have a field day with both the term and the underlying concept (and I invite readers to reflect on this), the idea is that if some aspect of regulation affects something that is core to the identity and quality of being ‘Indian’, provinces lack the jurisdiction to regulate (note – this argument is not whether a law can be enforced, but rather by whom).

If collective ownership of reserve lands were abolished and replaced with individual tenures, one might argue those lands no longer possess their inherent ‘Indianness’. As a result, provincial laws of general application might apply of their own force to reserve lands.

There is a long line of precedent standing in the way of reaching such a conclusion. Derrickson v. Derrickson (http://canlii.ca/t/1ftsn) held that possessory interests in reserve lands are at the core of 91(24). What I’m worried about is not possession, but regulatory incursions by provinces in environment and land use.

I would argue that the Derrickson reasoning should also stand for non-possessory interests in reserve lands, including jurisdiction over environment and land-use (indeed, environmental management should likewise be at the core of 91(24)). What disturbs me is the proclivity of courts to apply provincial environmental laws on reserves, evidenced through cases like R v. Charles (http://canlii.ca/en/sk/skqb/doc/1997/1997canlii11288/1997canlii11288.html) – which I’m not sure should be considered good law, and may be better characterized as a NRTA case on this point.

My fear on this point comes from experience in the US. While others are concerned with actual diminishment of Indian lands, I’ve had the unenviable task of training EPA personnel on exercising environmental jurisdiction on checkerboarded reservations. To put it bluntly, its a mess. Federal, tribal or state environmental rules may apply to adjacent parcels of land, making land use planning and environmental management…challenging. In recent years, courts have dramatically expanded state jurisdiction over tribal lands in a variety of areas.

While I believe this is a concern that can be managed in Canada through the development of a federal regulatory regime that allows First Nations to develop their own laws, (the related doctrines of interjurisdictional immunity and paramountcy would be powerful allies here) I see very little openness to doing so. What discussions I’ve seen tie First Nations exercises of jurisdiction to provincial rules (to ensure consistency). This, incidentally, is precisely what proponents of property reform hope to achieve with respect to titling. I doubt the purpose is the diminishment of First Nations jurisdiction, just as I doubt there would be an immediate effect. The long-run consequences on First Nation jurisdiction are frightening.

Claim 5: Implementation challenges means reforms may not be fully implemented – these reforms will likely be made available only to a few willing First Nations, while broader reform will be neglected

True.

This is based on experience with the First Nations Lands Management Act. That Act was meant to modernize on-reserve lands management and free willing First Nations from the oppressive nature of the Indian Act.

From the Aboriginal Affairs website, “First Nations under First Nations Land Management Act have the authority to create their own system for making reserve land allotments to individual First Nation members.” (http://www.aadnc-aandc.gc.ca/eng/1317228777116) Sound familiar? An innovative way for First Nations to reform land tenure on reserve by individualizing those tenures!

The problem is implementation. When the FNLMA was announced, I believe 14 First Nations signed on and were resourced to develop their own land management codes. It appears that about 30 First Nations have signed on, but “a policy decision was taken to close the regime to new entrants in 2008 because no long term funding had been determined”. That’s a major problem.

Its beyond me why the government wouldn’t pursue on-reserve property reform by supporting the FNLMA. First Nations are rational, and if there are successes out there, many First Nations would be interested in duplicating that success.

In fact, the inability to resource the FNLMA makes one wonder whether FN property registries will be supported beyond 1, 3 or 5 years, if at all. First Nation policy is plagued by a tendency for players to announce a great new ‘idea’, pilot the idea, then proceed to underfund once demand turns out to be much greater than anticipated. This leaves us with a lot of half-projects and orphaned initiatives.

Why does this bother me? Because between the inherent self-determination of indigenous nations, the by-law provisions of the Indian Act and federal inherent right policy statement, there are more than enough mechanisms for First Nations to effectively manage our own lands and unlock capital. The problem, in my mind, is the extreme degree of control that AANDC seeks to exercise (indeed, fiduciary principles of law may require them to exercise such control, but exploring why that’s not accurate is another post) – either through funding, policy statements or legislation.

I prefer legislation because its more transparent than the other two.

The other thing that bothers me is I fear those select First Nations which are friendly to this idea will receive substantial subsidy and preferential treatment from the government when I believe there are alternatives to this reform which would be at least equally effective in unlocking capital. Instead of encouraging competition and innovation, I fear the inclination of the powerful is to stifle it. Possibly a baseless fear, but I don’t hear many calls for diverse policy ideas in aboriginal affairs right now (nor have I in a very, very long time).

Claim 6: Property rights aren’t recognized by the law now anyways

False.

Yes, we are still waiting for that Declaration of aboriginal title. It is true that in general, collective rights do not do particularly well in court and are remarkably difficult to enforce. It’s also true that Canada’s legacy of squatters and individualized property rights, although mostly from the 19th Century, is pretty poor.

With only one possible caveat (legislative enactments may influence aboriginal title law), this debate isn’t about aboriginal title, nor is it even about collective rights. We are discussing individual rights in property. To be honest, I was surprised to learn that courts not only recognize, but enforce individual property rights on reserve.

Of course, this enforceability cuts two ways. Say a bank or a non-native investor acquires a right in some property and wants to manage it or dispose of it in some fashion contrary to the laws of the First Nation (either by-laws or customary laws). Or, alternatively, in some fashion that creates a nuisance. This pits either the First Nation, or an individual citizen, against a sophisticated and well resourced investor who would be capable of dragging a dispute through a protracted court process (for example).

In general; however, I find this objection to be unremarkable.

Claim 7: Individual Property rights will undermine First Nation culture

I can’t even express an opinion on this one, but I’ll provide the background. The relationship between the people and the land is central to many First Nation cultures. Similarly, the relationship is always (to my knowledge) defined collectively. The nature of the collective may change from nation to nation, being defined by family, clan or nation – but the relationship is always defined as a collective relationship. Indeed, traditional knowledge and traditional teachings are often expansive, defined by some as ‘holistic’, as opposed to ‘reductionist’. The nexus between people, land and culture is a nexus that I believe is quite misunderstood and underdeveloped in the law of aboriginal rights. Although that’s another story.

However, there already exist a great number of individual property rights on reserve. Is this at least partially responsible for cultural erosion experienced by some First Nations? I don’t know, but depending on one’s inclination, one may be predisposed to answer either ‘yes’ or ‘no’. I can say there are many examples of landless peoples who have managed to maintain both language and culture. I can also say that those examples may be meaningless here due to the centrality of land and territory for First Nations.

Proponents will tell you that we shouldn’t worry about such concerns because First Nations opting in will be exercising their right to self-determination, or, more accurately, their right to determine their own development. This is true, and I for one support First Nations self-determination – even in those cases where I believe it may be exercised in a sub-optimal fashion. Here, I would suggest that an indigenous nation has the right to cultural change, should one accept that individualization of land tenure would result in a cultural shift. Incidentally, I’m not sure Canadian courts would be as liberal in their view on this point as I.

But self-determination arguments don’t counter the general objection that the reform initiative as a whole will undermine the collective aspects of First Nation culture. They simply seek to evade the discussion completely by justifying such an initiative on a nation by nation basis. Indigenous peoples understand that they (individually and collectively) hold obligations to future generations and make decisions considering impacts of future generations. But indigenous peoples also understand that they also hold obligations to ancestors and make decisions that honour the legacy and the sacrifices of ancestors.

In the end, I feel this is a judgement to be made by both individuals and collectives. I’m not sure how this concern could be accomodated in the context of a property reform initiative, but I am sure that failing to recognize it as a valid concern isn’t going to help. I could see several challenges to the initiative, legally and politically, domestically and internationally, which all have this concern at their root. In my opinion, it is a valid concern. That the Indian Act itself undermines culture, as do many other legal and policy instruments offers no real defence. Expecting development of policies and legislation that support healthy economies and First Nation culture; however, should not be an unrealistic expectation.

That, in my mind, is one challenge which must be met to achieve ‘reconciliation’ in Canada.

Conclusion:
One must remember that the Indian Act was not the first legal instrument to place restrictions on alienability of reserve lands. There is a long legal tradition, dating back to the Doctrine of Discovery, which does this. The Doctrine of Discovery, incidentally, operates to prevent foreign nations from dealing with indigenous nations. It places no restriction on indigenous nations in terms of their property rights, their jurisdictions, or their ability to conduct foreign relations – though it affects each indirectly in very profound ways.

In Canada, the Royal Proclamation and the Treaty of Niagara provide two pre-Indian Act examples of placing alienation restrictions, again, not on indigenous nations, but others. Finally, one major beneficial impact of the Indian Act was to stop the avaricious practices of land speculators and squatters in Indian reserves. The Act itself is largely responsible for the extremely limited amount of reserve land remaining today. I understand how people would be skeptical that removing these so called ‘protections’ of the Indian Act would undermine the reserve land base.

I’m not sure I agree with them.

It should be possible to structure a legal regime in such a way that First Nations collective property rights and First Nations jurisdiction would be protected and even enhanced through a property reform initiative. What I fail to see is any meaningful attempt to even engage these issues, nevermind to resolve them.

When I combine this concern with my previous conclusion that the beneficial effects of individualizing property are likely overstated (and quite overstated), I would be reluctant to support such an initiative. I find many of the claims on both sides of the debate are overstated. While it is appealing to consider ‘unlocking’ the capital on-reserve, I wonder whether this could be accomplished through other, less disruptive means.

On the other side, I am most concerned about alienability and jurisdiction. Yet neither of these concerns are insurmountable or unmanageable. However, land is very much unlike capital. There is a finite supply of it. On many reserves, there is not enough of it to sustain a growing population. The relationship between the land and the people is central and sacred to many indigenous nations. To gamble with the lands, I would suggest there needs to be much stronger evidence the benefits are real as well as a much more developed series of safeguards.

Property reform on reserve

There is a tendency for proponents for property reform to focus only on policy reasons for reform and to be very dismissive of rights. On the flip side, rights advocates tend to be dismissive of policy reason and only seem to engage on the rights issues implicated by on-reserve property reform.

This is a mistake. It leaves the ‘discourse’ in a state where parties speak past each other, rather than engaging. Here, I’ll provide some views on policy reasons related to First Nations property reform. While I feel many reforms currently under discussion could be helpful, many of the benefits are greatly exaggerated, while potential drawbacks are underexplored.

In this debate, we are often invited to conflate property rights with freedom from oppressive government regulation. While it is true that greater property rights implies greater individual liberty, proponents of reform often fail to make the critical link to explain how this would happen.

Most likely, it would involve some degree of preferential regulatory treatment for First Nation which ‘opt in’ to such an arrangement. This is more or less the way the First Nations Lands Management Act operates and raises interesting issues of equity (to be explored in a future post). Here, I suggest First Nations and citizens should critically examine the alleged nexus between property rights and freedom from oppressive regulation. Determining whether they are causally linked, or even correlated, is one key to understanding the property reform debate.

This post is an exploration of some of the claims of proponents of reforming on-reserve land tenure to introduce fee simple rights. In a future post, I’ll explore some of the claims of those objecting to such reform.

Claim1 – The Crown holds underlying title to Indian reserves

This is true. This is Canada’s position, affirmed by the courts and constantly challenged by aboriginal rights activists and lawyers. I don’t see this changing through legislation, as it is precisely the issue at stake in an aboriginal title case (aboriginal title still having never been awarded to a claimant in Canada)

What you didn’t know is that the Crown holds underlying title to everything. Yes, even if you hold a much-coveted fee simple right in realty, the Crown still holds the underlying title. The problem doesn’t rest in fact that the Crown holds underlying title, it is with the rather broad and sweeping powers exercised by the Crown over Indian lands (Alternatively, I would say it is the persistent and continuing failure to recognize the liberty and self-determination of First Nations, particularly over lands, territories and resources)

This make the problem seem like more of a governance issue than a property issue. One may hold fee simple in a city like Ottawa, but find that zoning, municipal, provincial and federal laws substantially restrict one’s use of that property. It doesn’t diminish the strength of the property right, in fact, the type of tenure (life estate versus fee simple) doesn’t really matter.

Distinguishing between the nature of one’s tenure and the impact of government regulation is key to this debate. The greatest barrier to on-reserve economic development is not the type of land tenure, it is the amount of government regulation faced by First Nations entrepreneurs attempting to do anything not specifically authorized by the Indian Act, or worse, government policy on implementation of the Act.

When proponents say that the Crown has the underlying title to reserves, they are speaking truth (subject to challenge from rights advocates); but what they really should be saying is that the property rights available on reserve are distinct from those enjoyed off-reserve.

Claim 2 – People living on reserve can’t hold property rights

This is patently false. There are a variety of property rights that may be held by Indians on-reserve. The much-maligned certificate of possession is one example (possession is one example of a property right). The truth hiding within this claim is that Indians on reserve cannot hold land in fee simple.

I invite my readers to consider property as a ‘bundle’ of rights. This is how first year law students are taught to view property. Some forms of tenure mean there are some ‘rights’ within the ‘bundle’, other forms of tenure may have different rights and some may have more. For example, fee simple is simply a form of tenure (a ‘bundle’) that implies more rights than other forms (say, life estates).

The key to this debate, in my mind, is that fee simple is widely recognized by financial institutions and is often preferred by such institutions when granting credit to individuals holding such rights. In the event a seizure of the property is required, institutions don’t have to deal with other individuals holding rights in the property.

It bears repeating that the absence of fee simple tenures on reserves does not mean there are no cognizable property rights. It means there is no fee simple.

Inability to hold lands in fee simple does carry substantial limitations because the fee simple property right is more expansive than the property rights currently available on reserve.

While this claim is false, it represents a valid underlying principle.

Claim 3 – Property rights are the key to unlocking wealth

Well, I find little to disagree with here. It’s why I support indigenous land rights. Proponents of property reform often cite the work of Peruvian economist Hernando de Soto to support the idea that allocation of private property rights unlocks capital, allowing people to generate wealth. Those that don’t like this proposition can rest assured there are several critiques of de Soto’s work available to contest such a conclusion.

My reading of de Soto; however, is that the allocation of property rights is less important than their enforcement, or the accessibility of enforcement mechanisms. Economists tend to live in a world where one can assume that simply because a property right has been allocated, everyone will respect it. This is not the case in the real world – enforcing rights takes time and resources.

This is why I often cite de Soto for the proposition that if aboriginal title were recognized in Canada, First Nations would be the beneficiaries of tremendous investment, and avenues for First Nation economic integration would be created. In fact, even the prospect of greater recognition of aboriginal rights, and the creation of a remedial mechanism for rights pending claims resolution, through consultation and accommodation, has encouraged impact and benefit agreements, joint ventures and a massive restructuring of capital flows in First Nations across the country. Whereas ten years ago, First Nations and industry lived in separate spheres, today there is not only dialogue, but genuine partnership.

I can’t quantify the economic benefits of consultation and accommodation for First Nations, but I’m sad to say I’ve never seen anyone attempt even a cursory analysis (I sincerely hope it’s been done and I simply haven’t seen it)

In the context of the debate over development on reserve, I think of de Soto’s work on oppressive regulation, such as the amount of time it takes to get permits and zoning approvals. In fact, I think that is more likely the real problem and that the successes out there today are likely those First Nations that have developed creative means to cut out such red tape.

This is why I would question why allocating rights would help. Aboriginal title is a right that is constitutionally protected, yet enforcing it has proven…well…challenging. It strikes me that creating property rights that don’t enjoy constitutional protection would be even more difficult to enforce. Nothing in this debate suggests that a legislated solution would lead to greater enforcement (although one could suggest that legislated property rights are more certain than aboriginal title – an assertion I’ll tackle in my next post). Nor is there any reason why individual property rights are a precondition to lighter regulation on reserve.

As I mention above, First Nations already are capable of allocating some property rights. Those rights are not respected. There are a litany of cases from the late 1800s which demonstrate the ineffectiveness of the law to protect First Nations property rights on reserve. One can read about them in the excellent history “White Man’s Law: Native People in 19th Century Canadian Jurisprudence” by Sidney Harring. It’s an excellent read.

For those who suggest those decisions are no longer valid law, or are outdated remnants of the past, I could easily line up contemporary critics who would suggest the same about the Van der Peet test, the cornerstone of aboriginal rights law, or alternatively, the treatment of aboriginal title in Canadian law.

In this debate, it would be more relevant to look to the Indian Act itself to question whether the problem is property rights, or the overregulation of reserves. For example, in the Beattie decision, the Canadian Human Rights Tribunal found that the application of s. 58(3) of the Indian Act was being applied in a discriminatory fashion. This case involved an attempt to enter a leasing arrangement on reserve that was foiled by (then) Indian Affairs. The problem in Beattie would not have been remedied by the existence of fee simple rights, but rather by a more respectful operation of s. 58 of the Indian Act.

There are two interesting things about the Beattie decision. To the best of my knowledge, it was the first decision of the Tribunal after s. 67 of the Canadian Human Rights Act was repealed, making (more of) the Indian Act subject to human rights challenges. In other words, the first post-repeal case wasn’t about gender discrimination, inadequate housing, corruption or any other of the usual suspects, but rather a property dispute. The second point is the remedy. The Tribunal ordered that s. 58(3) become a simple ‘enabling’ provision and removed the unilateral Ministerial discretion from the equation. This simple order accomplished as much, and likely more, than recognizing fee simple lands on reserves would.

A link to the Beattie decision is here: http://www.chrt-tcdp.gc.ca/aspinc/search/vhtml-eng.asp?doid=1043&lg=_e&isruling=0

Beattie involved property rights on the reserve – the problem wasn’t the security of the tenure, but rather the leasing provisions of the Indian Act. To reiterate, a stronger property right would not have helped in this situation. Indeed, the preferred remedy is to engage in regulatory streamlining, not to allocate additional or stronger property rights.

My point is that proponents of First Nations property rights often conflate fee simple ownership with freedom from regulation and/or Ministerial discretion. It’s quite possible many of the benefits of on reserve property allocation could be as easily accomplished through similar reforms as those forced on the Crown by the Canadian Human Rights Tribunal in Beattie.

This is an important point in this debate because if regulatory streamlining produces better results, then it would make more sense to do so and free First Nations to manage their lands as they see fit (this would be where I would go, although I would call it self-determination).

Claim 4: If First Nations had fee simple property, they could unlock capital through mortgages

This is one of the more controversial assertions in support of reform because some fear it could lead to diminishment of the on-reserve land base. I consider that a ‘rights’ objection, and won’t deal with it here.

The claim is mostly true. Mortgages can be very powerful tools because they allow people to leverage, and provide easy access to a credit facility (their home) for any number of purposes. If you need start-up capital for a business, I’d be willing to be a line of credit secured by a mortgage would be a good place to start. Even if one doesn’t actually secure a line of credit with a mortgage, I imagine it sure helps one’s credit rating to have one. And most First Nations wouldn’t have access to it because, well, they don’t hold mortgages.

It is also true that the major obstacle that gets in the way of having more mortgages on reserve is the inability of banks to seize on-reserve assets (houses) when a home needs to be foreclosed upon. (Referencing the controversy above, it has been suggested that foreclosures wouldn’t necessarily result in the taking of reserve lands out of the collective – a claim which requires closer examination elsewhere)

But the claim is only ‘mostly true’. As above, where I suggested the problem could be government regulation as much as it could be property rights, here I’d suggest this may be more a problem of bank policy and less a problem of unrecognized property rights. Proposed workarounds, like ensuring the First Nation has some kind of underlying title will diminish the value of the property right.

On valuation of land, see, for example, Musqueam Indian Band v. Glass. The case established that valuation of property on-reserve should be discounted. Facially, this is because on-reserve land is held as a leasehold, rather than a fee simple. But this was not the reason for the reduced valuation. The reason was that the on-reserve lands faced “legal restrictions” and “market valuation” issues (para. 46).

On the subject of ‘legal restrictions’, the court stated, at para. 48, “The legal restrictions on land use imposed by a band on its land are analogous to land laws imposed by a municipal government.” It’s governance, that is to say, zoning and control over lands, that matters, not the type of land tenure. In fact, the court was even kind enough to point out that First Nations could even increase the value of reserve land through community based land use laws.

To put it another way, what matters is how the land is governed, not the type of tenure. Indeed, at para. 52 of Musqueam, the court noted, “Discounting the land because of its leasehold features is an error in law for, as I have explained above, “current land value” means freehold and not leasehold value. But this distinction does not significantly affect the market value of the land.” [emphasis mine]

However, and proponents of reform readily admit this, a number of reserves have managed to establish relationships with banks which result in the First Nation providing some kind of guarantee. This allows First Nation citizens, in these communities, to realize the benefits of mortgages. Incidentally, I’ve never seen a study which assesses whether economic development and entrepreneurship produces measurably more benefits in such communities since mortgages have become available. I’d like to see one.

Claim 5: Private property is not a panacea

Correct! And here is one of the major problems with privatizing property on reserve. There are a lot of problems. Allocating property rights will help, though it is quite questionable how much. Introducing leverage to the system will accelerate the benefits and exacerbate problems.

In remote communities, the cost associated with getting materials to communities is high. This is important because one can expect that people will use capital in order to improve housing stock.

As costs are higher on many reserves, employment and income is generally lower. This is relevant because it is a barrier to obtaining financing – in fact it is quite likely more of a barrier than not holding property. As an example, I do not own my home – I rent. However, my ability to derive a steady stream of income means I can acquire credit quite easily. Property is only one prong of a multi-prong approach which is needed to improve reserve economies.

It is also true that a property market on reserve would create economic growth, but one cannot assume that an entire reserve economy could be structured around a property market and government spending alone. Simply hoping that reserve economies diversify as a result of increased investment from unlocked capital is not much of a strategy for economic development.

Claim 6: Private ownership of houses will result in better housing stock through pride of ownership

Poppycock! As a renter, I find this both untrue and somewhat offensive! “Pride” of ownership isn’t going to make a difference, although I must admit, the ability to tap into a home’s equity to pay for repairs and upgrades will.

One other issue – transition

One thing that has always intrigued me about Tom Flanagan’s writings, in particular, is how he would propose to deal with transition to a new regime (over property or governance). In academia, I gather it’s popular to think that government can simply snap its fingers and a new regime is in place. In reality, transition presents a range of complexities, challenges and opportunities that I feel are generally underexplored in this debate.

I must stress that this is an area which requires considerable attention.

For example, many proponents of property reform also suggest that First Nation governments are corrupt. While I disagree with this, I would find it odd if they would then rely on those same First Nation governments to allocate property rights over reserve lands.

Moreover, given the alleged irregularities associated with First Nation land holding, it is curious that nobody is discussing what to do if there are disputes between individuals (or families) over particular parcels.

These are practical transition issues, which, if left to fester, will virtually guarantee an extremely rough transition and slow adoption of a reformed property regime.

Conclusion

This is a superficial survey of the policy issues associate with property reform. I feel there is a need both for critical examination and a robust analysis of these and other policy based claims. I recognized a number of authors, such as Flanagan, Alcantara and Joseph Quesnel, have done quite a bit of work on property reform. I’m not sure anyone has ever challenged, or even engaged, their main arguments. Instead, those expressing concern with property reform tend to raise different issues. This leads to a discourse in which people are talking past each other (indeed, where everyone can be right and disagree at the same time).

I believe that it is possible that individualizing tenures might have some beneficial effects. I have yet to see a causal link between individual tenures and improved economic outcomes, and in fact, I’ve seen very little work that shows a robust correlation. But I have seen some, and the research that has been conducted to date points suggests individual tenures would promote greater economic self-sufficiency.

It would appear probable that individual property rights could be helpful for First Nation self-sufficiency, but the difficulty I have with current discourse is the proposed magnitude of the effect. I fear that the amount of political captial that will need to be expended in order to individualize reserve land tenures would be much better invested in regulatory streamlining for First Nations. Or even worse, that the two are coupled, only some First Nations (those that opt in) will benefit from the reform and we will never know what factors actually contribute to economic development on reserve lands. Better to understand where our intellectual, financial and legislative resources should be deployed before engaging in a reform initiative.

I conclude that the reform initiative, if it included regulatory streamlining, will likely produce some benefits for First Nations. In order to form a balanced opinion on property reform, though, one needs to look at the counterpoints not discussed here.

In a future post, I’ll explore some of the legal and rights implications of reforming land tenure on reserve. Legal implications are generally more responsive to the concerns expressed by opponents of property reform, whereas (as stated above), these policy issues are generally advanced by supporters.

Can Canada withdraw from the Kyoto Protocol?

In a word, I’d say ‘probably’. The issue for me really revolves around procedure – that is to say not ‘whether’, but ‘how’. However, there is, at least in my mind, an argument that could be put forward, on the basis of international human rights and aboriginal rights, that suggests Canada might not be able to withdraw.

Respective authorities of Parliament and the Executive in foreign relations

At the outset I must state this is not my field of expertise, so I welcome any corrections in the analysis. In Canada, treaties may be entered into by the Executive, but they must be implemented by Parliament in order to have force of law. In essence, one might argue that as entering treaties is in the power of the Executive, so is withdrawal.

In other words, it is the Minister, or the Prime Minister, who can enter into a treaty like the Migratory Birds Convention (which I understand to be a very old treaty, so we might be looking at the U.K.), but its up to Parliament to pass the Migratory Birds Convention Act, which implements the obligations. In interpreting the Migratory Birds Convention Act, courts will apply the Act, but may look to the Convention itself to clarify any ambiguities in the text of the domestic legislation.

Incidentally, I assert that when courts do so, they should take note of all relevant international law rules, not simply those in the Convention (this is relevant for environmental treaties which may impact indigenous rights recognized through international human rights instruments, for example).

In fact, if Canada enters a treaty which impacts on provincial rights, the federal Parliament lacks the legislative competence to implement the treaty, it must be done by each province. This is, in my mind, a diminished view of s. 132 of the British North America Act, but I’m likely in a minority on the point – and, in any event, Canada appears to manage foreign relations just fine, despite this issue (and I’m not sure its relevant to this particular discussion)

Canada signed the Kyoto Protocol. Parliament voted in favour of ratification in 2002, and Canada ratified the treaty. At this point, the Protocol became binding on Canada. I suggest that the Executive arm of government cannot simply withdraw from the Protocol. Because Parliament has voted in favour of ratifying the Protocol, only Parliament has the authority to ‘un-ratify’ it (somewhere out there, a public international lawyer may be screaming).

This is a minor issue for a majority government, but failing to comply with the proper procedure could be reviewed by a court. I believe the commitment period for Kyoto ends very soon, and it is possible that if Canada does not formally withdraw in time, it may be liable for several billion dollars in fines. However, a majority should be able to easily schedule the requisite vote(s) to, heh heh, ‘un-ratify’ (more screams?) the Protocol.

In a related vein, Parliament may have to repeal the Kyoto Implementation Act. For similar reasons above, a previous Parliament has promulgated an enactment which has, as its core objective, implementation of the Kyoto Protocol. Failing to repeal the Kyoto Implementation Act and attempting to formally withdraw from the Protocol may be a usurpation of Parliament’s authority by the government. That is, if the effect of withdrawing from the Protocol renders the Act irrelevant – this, it could be argued, is an example of Executive action which repeals legislation. At minimum, it could create a confusing situation, where Canada has domestic legislation (which is binding) to implement an international treaty from which Canada has withdrawn.

Again, its easy for a majority to repeal legislation. It’s also easy for someone to judicially review government action (like an attempt to withdraw from a treaty) if proper procedure isn’t followed.

This discussion leaves aside the matter of whether conduct of foreign relations, and particularly, withdrawing from treaties is a remnant of the Royal Prerogative (it may well be). However, in this day and age, I would imagine courts would frown upon excessive exercises of Executive authority which undermine seemingly valid Parliamentary actions (ratification and implementation legislation). It’d be an interesting debate.

Even more interesting, and perhaps arcane, is what would happen if the government withdrew from Kyoto, but was later found in domestic court to lack the authority. I know this is an issue for which public international lawyers likely have an answer (I don’t offhand, as I confine my attention to international environmental and human rights law – two subsets of public international law).

Below are a few other considerations.

Aboriginal rights

I have already outlined my thoughts on Honour of the Crown and international relations in a previous post, which can be found here:
https://reconciliationproject.wordpress.com/2011/11/24/honour-of-the-crown-and-international-obligations/

I would only press that the decision to withdraw from an international commitment should attract the same legal standards of review as a decision to enter into an international commitment which impacts aboriginal rights.

One major difficulty with Kyoto is establishing that nexus between the decision to withdraw and effects on aboriginal rights. I believe this is not an insurmountable obstacle, for reasons outlined below, but it is one obstacle.

As noted above, it is regrettable that this announcement comes so close to the close of the commitment period for Kyoto. Here, this is because it is unlikely the Crown will have the time to consult (never mind to meaningfully consult) with rights holders prior to the close of the commitment period.

Human Rights Implications

Withdrawal may place Canada in non-compliance with Article 2 of the United Nations Framework Convention on Climate Change, which states:

The ultimate objective of this Convention and any related legal instruments that the Conference of the Parties may adopt is to achieve, in accordance with the relevant provisions of the Convention, stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.

One principle of international law is that the law should be applied in a fashion which is non-discriminatory. This is an important concept because dangerous anthropogenic interference with the climate system is already occurring in the Arctic. It is disproportionately impacting Inuit, First Nations and likely Métis who pursue traditional livelihoods in northern environments. Food production, particularly for Inuit (certain marine mammals) and First Nations (certain terrestrial mammals) is already at risk.

The Supreme Court of Canada implicitly acknowledged that climate change, and in particular warming oceans, has already resulted in demographic changes in marine populations in Lax Kw’alaams (at para. 57). It really isn’t hard to imagine how this impacts species and place specific aboriginal rights, nevermind the more practical difficulties indigenous nations encounter trying to harvest and use novel species.

Without Kyoto, it would appear Canada is not taking any meaningful action to prevent dangerous anthropogenic climate change, and is in violation of UNFCCC Article 2. This breach in turn leads to the possible conclusion that by withdrawing from the Kyoto Protocol, Canada is fomenting a mass violation of indigenous human rights.

This is not a novel argument. This precise issue was explored in a thematic hearing at the Inter-American Commission on Human Rights in 2006. However, the attempt by Canada to withdraw from Kyoto can and should be re-examined in light of these considerations.

While international human rights arguments are not directly actionable in Canadian courts, it is open for advocates to raise relevant human rights norms in relation to Charter rights, such as s. 7 (life, liberty and security of the person). Application of s. 7 to an environmental dispute would be novel, but I believe there is sufficient legal authority to support the argument environmental damage could lead to a violation of s.7, at least in certain circumstances.

Unlike my arguments above, which are really about the procedure to withdraw, these arguments speak directly to Canada’s ability (or inability) to withdraw from the Protocol, at least without taking some serious alternative action on climate change.

These are a few considerations related to Kyoto withdrawal. Although I believe these are appropriate issues for a court to consider, I also fear that time may be too short. Consider, for example, that the government could legally withdraw from Kyoto on a unilateral basis. In order for government to be able to exercise this right, it would need to withdraw by December 31, 2012. This appears to be a lot of time, but that appearance is likely deceptive, given the complexity of the arguments which would be led by ‘Kyoto advocates’ and by governments.

Spookw and the Northern Gateway Pipeline proposal

While writing about the Behn case, I suggested some scepticism about what I felt was a policy reason driving the Court: the spectre of individual aboriginal rights claims. That allowing individuals to action aboriginal rights claims might throw a wrench into the treaty negotiation process and could even require negotiations with clans, families or individuals!

Then along came the Spookw case. Unlike Behn, which involved individuals, the plaintiffs in this case included hereditary chiefs, First Nations and the Gitxsan Legal Aid Society. Also, unlike Behn, the plaintiffs in this case did not attempt to assert aboriginal rights or title, in fact they didn’t assert that the defendant Gitxsan Treaty Society (GTS) could not assert rights or title, either. This is a claim in negligence against the BC Treaty Commission.

Spookw raises important issues of representivity, rights and how First Nations rights holders are organized internally. While the Spookw decision is fairly narrow and technical, effectively avoiding addressing these problems, the issues are of current interest. The defendant Gitxsan Treaty Society (GTS) has recently come under fire for supporting a major pipeline development. More accurately, the GTS is under fire for signing on to this project without effectively consulting within the relevant communities, quite likely in violation of traditional law (I’m happy to confess I know very little about Gitxsan law).

As a disclosure, readers should be aware I hold one share of Enbridge stock, the proponent of the ‘major project’, the Northern Gateway Pipeline. I can discuss why I own it in a later post on corporate social responsibility and why indigenous advocates should be shareholders in major resource companies.

Like Behn, I found the plaintiff’s attempt to frame the claim in Spookw, if I understand it correctly, a tad complicated but entirely reasonable. The basic problem plaintiffs raise in Spookw is alleged undemocratic behaviour by the Gitxsan Treaty Society. This is summed up by the Court nicely at paragraph 20:

The plaintiffs’ complaint is that over the years the GTS has unduly restricted the involvement of the plaintiff hereditary chiefs and Indian bands in treaty negotiations. They complain that, amongst other things, GTS has declined to take direction or input from the Gitxsan chiefs, restricted debate on matters of concern to all Gitxsan, and conducted its affairs in a secretive and “oppressive” manner that was unfairly prejudicial to the plaintiffs.

This manifested in a claim of oppression against the GTS, a claim of negligence against the British Columbia Treaty Commission and a claim of breach of fiduciary duty and “duty of honour” against the federal and provincial Crowns. This decision deals only with respect to the negligence claim against the BCTC.

GTS represented that it operates by consensus, while the funding criteria for the BC Treaty process requires the approval of a First Nations constituency before requesting funds from the Commission.

The plaintiffs’ proposed principle would be that the authority to negotiate is not plenary authority. In other words, if the GTS makes representations that it operates by consensus and is later shown to be operating otherwise, GTS should not continue negotiating, and should not receive funding to do so. The authority of the GTS to negotiate would be limited to its ability to adhere to these representations.

Despite plaintiffs repeated statements that the GTS does not represent them, the GTS continues to receive funding – and I assume, continues to negotiate on their behalf.

The Court denied this claim, holding that the requisite relationship of proximity – a requirement for a claim in negligence – had not been met. The Commission has a relationship with the GTS and the GTS has a relationship with the claimants. As in Behn, the court cited a policy reason for doing this (at para 41):

[41] The effect of the plaintiffs’ argument is to turn the role of the Commission somewhat on its head. The Commission is required to respect the self-governance of the First Nation at the treaty table. I am not persuaded that the Commission has a duty is to involve itself in the governance of a First Nation by acting to protect the interests of a minority group within the Nation. In my view, the Commission’s duty is to the collectivity, not the individuals represented.

Here, you see a court grapping with a bit of a problem. On one hand, the court notes that indigenous self-determination does not impose a duty on the Commission to become involved in internal matters of governance. On the other hand, the Gixtsan Treaty Society has freely committed itself to a consensus-driven process, and it has been alleged the process is no longer consensus-driven.

It’s not clear why matters of ‘internal governance’ merit a shield in this case, as opposed to, say, custom elections. The distinction for me is I’ve never actually seen a negligence claim in the latter, whereas what this court is discussing is a proximity/duty of care analysis related to negligence on the part of the Commission – essentially that the Commission fails to diligently hold First Nations negotiating partners to mutually agreed terms for negotiating.

And that may make all the difference here.

On that last note, it would seem from both Spookw and Behn that some deep thinking may be required on the relationships between individuals, First Nations and other collectives, particularly in the rights context.

Whereas in Behn, one may argue convincingly that individuals already possess a right of redress for indigenous rights violations under international human rights law, the principle here is murky. Can a collective fetter its ability to negotiate or settle? If such authority is fettered, should courts intervene to enforce such self-imposed conditions? Or does self-determination preclude legal consideration of the interest of individuals or minorities? (If so, then where is the limit, as there are clearly some legal vehicles for doing this already?)

I also add that it is impossible to achieve reconciliation without full and meaningful engagement with First Nations, including all members and minorities – particularly where the predecessor indigenous nation operated on the basis of consensus. It seems both risky and harsh to ignore such matters of representivity; presumably to deal with them during voting on an agreement in principle or ratification (forgive me, I’ve never been involved in the BC Treaty process so I may overstate the risk).

I find it very odd that a major pipeline producer would publicly announce an agreement with the Gitxsan Treaty Society, particularly without executing a bit more due diligence on representation and consultation issues. The Spookw decision was released several months ago (apologies, I thought I had posted this several months ago), and speaks directly to some of the risks of signing such agreements with the GTS.

In fact, I wouldn’t be surprised if the Spookw plaintiffs are appealing the decision, and whether they are or not, one should anticipate this latest agreement will likely be subject to a very similar claim.

Given my commentary on Behn, it goes without saying that I believe such an agreement, if it lacks consensus among the Gitxsan communities, traditional councils and possibly even citizens, can be challenged on the basis it either wilfully or negligently misrepresents that Gitxsan rights holders support the project. Here, though perhaps citizens may (in my mind wrongfully) lack standing to vindicate their rights, it is likely that hereditary chiefs and traditional decision makers may attempt, and may attempt successfully, to impugn or invalidate the agreement.

While private corporations do not have a duty to protect aboriginal rights, general principles of law prohibit them (as anyone) from misleading regulators or other corporate actors, say markets and investors. If this is the case with this particular agreement, it means the value of the agreement is greatly diminished and the agreement itself becomes remarkably marginalized.

Even worse for Enbridge, the duty to consult and accommodate rests with the Crown. If this ‘agreement’ has not been agreed to by all First Nations, it is extremely likely those First Nations can and will challenge regulatory approvals for the project on the basis they have not been sufficiently accommodated.

As evidenced by both Behn and Spookw,challenges related to representivity, internal organization and customary law make courts very uncomfortable. This means kicking such issues back into litigation will likely require one or more trips to appellate courts, and potentially the Supreme Court, to get a clear answer.

Litigation would be an expensive proposition for the Gitxsan. In my mind, it would be regrettable to do so here, although I would welcome the opportunity for Canadian courts to address such issues in order to prevent recurrences of such confusion.

Do First Nations have a veto over development?

There has been quite a bit in the news recently about First Nations opposition to major mining and energy projects, ranging from mining developments, to pipelines, to hydroelectric dams to shale gas fracking.

Underlying many of these issues are allegations that the Crown has not met its obligation to consult and accommodate with First Nations. In some cases, First Nations have categorically expressed they are opposed to certain developments. In these cases, one is tempted to ask, “Do First Nations have a veto over development?”

An alternative way to ask the question, “Is the consent of a First Nation required in order for development to proceed?” I’ll spare readers a rant on whether free, prior and informed consent (FPIC) is a right (I think it is an outcome, or at best a process), but I will note that the concept of FPIC, particularly in relation to the UN Declaration on the Rights of Indigenous Peoples, is often cited in this context.

The convention wisdom suggests the answer to this question is “No”. Canada has a duty to consult and accommodate, not to agree. This point was firmly made by the court in Haida, at paragraph 42, “there is no duty to agree; rather, the commitment is to a meaningful process of consultation.” Moreover, paragraph 48 of the same decision expressly states that First Nations do not have a ‘veto’. (more on this below)

First Nations cannot thwart the consultation process by refusing to participate. That principle was established in the 1999 decision in Halfway River First Nation v. British Columbia (Ministry of Forests) and remains good law. The Court confirmed this rule in Haida (again, at paragraph 42), by stating “As for Aboriginal claimants, they must not frustrate the Crown’s reasonable good faith attempts, nor should they take unreasonable positions to thwart government from making decisions or acting in cases where, despite meaningful consultation, agreement is not reached.”

That statement, along with the principle that First Nations cannot thwart the Crown’s decision making process, requires some careful consideration. This quote is telling First Nations they cannot engage (or refuse to engage) in the process in bad faith, that is, with the intent of obstructing Crown action, during the consultation process. That is a ‘procedural’ question. It does not state that any Crown conduct can and will proceed, irrespective of the circumstances or potential impact on First Nations, which would be a ‘substantive’ statement. Conflating these two concepts leads to remarkably unjust and perverse outcomes, and could undermine the very fabric of aboriginal law.

If one takes these statements as suggesting First Nations may never say ‘no’ to development, then consider statements of the court on consent. In Delgamuukw, the court considered the issue of consultation, both in terms of management of aboriginal lands and in terms of infringement of aboriginal rights. At paragraph 168, the court stated, “Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands.”

Delgamuukw was an aboriginal title case, and so it is possible that the Court was confining itself to a discussion of legal impacts of a finding of aboriginal title. However, in paragraph 24 of Haida, the Court made it clear that not only is this finding not limited to title, but “[t]hese words apply as much to unresolved claims as to intrusions on settled claims.”

As noted above, Haida is a case more concerned with process than with outcome. By this I mean the point of consultation and accommodation cases is to preserve the subject matter of aboriginal claims, while allowing development to proceed. The point is not to settle aboriginal claims. It is clear to the Court, First Nations and the Crown that negotiation and civil litigation (preferred approaches for such matters) are both time consuming and expensive processes. Consultation and accommodation is about interim arrangements, not final outcomes.

This is why the Court states, at paragraph 48, “This process does not give Aboriginal groups a veto over what can be done with land pending final proof of the claim. The Aboriginal “consent” spoken of in Delgamuukw is appropriate only in cases of established rights, and then by no means in every case. Rather, what is required is a process of balancing interests, of give and take.”

The Delgamuukw reasoning on consent is not limited to aboriginal title cases. Haida confirms consent is entirely appropriate when treaty rights or recognized aboriginal rights are threatened by development. Even here, consent may not be appropriate in every case.

Recalling the discussion above, the Court has already indicated process of consultation and accommodation cannot be used by First Nations to thwart development. However, I believe there are circumstances where First Nations could exercise a veto, even in absence of an aboriginal right.

First, an exploration of when consent might be relevant might be helpful. In what cases might consent be appropriate? I would suggest, at minimum, consent is appropriate in cases where aboriginal rights are unjustifiably infringed. Sparrow elaborates a framework for determining whether government action infringes aboriginal rights, and if so, whether that infringement can be justified. If it cannot, the government action is of no force and effect.

The Honour of the Crown requires a bit more than compliance with the Constitution.

Sparrow involved a fisheries allocation scheme. The overall goal was conservation of a scarce resource shared by First Nations and non-First Nations fishers. In Sparrow, the court stated, “The nature of the constitutional protection afforded by s. 35(1) in this context demands that there be a link between the question of justification and the allocation of priorities in the fishery. The constitutional recognition and affirmation of aboriginal rights may give rise to conflict with the interests of others given the limited nature of the resource.”

It is unlikely the Crown could justify an extractive development on the basis of conservation. Even if it could, conservation was relevant in Sparrow because the resource was shared – native and non-native fishermen all depend on the resource. In many extractives situations, First Nations don’t use the resource, and don’t benefit from exploitation, they only suffer the environmental consequences of development.

If such government approvals result in environmental damage or pollution which substantially interferes with an established aboriginal right, the Honour of the Crown requires the consent of the First Nation is secured. Absence of this requirement would render the aboriginal right meaningless. Indeed, what is the point of an established (and non-discretionary) constitutional protection if it does not prohibit government conduct based some discretionary governmental power?

“Substantial interference” with an established aboriginal right should trigger a consent requirement. Coming back to Haida, what about ‘prima facie’ aboriginal rights? The court expressly stated that First Nations should not have a veto over land use decisions, pending the outcome of a claim. The facts before the Court in Haida could not justify such a broad ranging statement. While I believe a consultation process is not the appropriate mechanism for exercising a veto, inferring that First Nations seeking a veto are always without remedy is overbroad.

In these cases, a First Nations veto is appropriate if a contemplated government action would render the subject matter of the proposed aboriginal right un-enjoyable. For example, an action which could lead to the extinction of a depleted caribou herd requires the consent of a First Nation attempting to prove an aboriginal right to hunt that herd. Alternatively, a First Nation asserting a fishing right in a particular lake could veto a proposed mine that would destroy the lake (or alternatively, one which would destroy the fishery in the lake through pollution).

This looks pretty close to what one would need to demonstrate to secure an injunction. The Haida court noted that securing interlocutory injunctions could be difficult or inappropriate for several reasons, one being the hurdle cause by the ‘balance of convenience’ test, which, “tips the scales in favour of protecting jobs and government revenues, with the result that Aboriginal interests tend to “lose” outright” (at para. 14).

The main reason injunctions are inappropriate in aboriginal rights cases is that they fail to recognize the special relationship between aboriginal peoples and the Crown. It might be helpful to recall the follow passage from Sparrow – “the honour of the Crown is at stake in dealings with aboriginal peoples. The special trust relationship and the responsibility of the government vis‑à‑vis aboriginals must be the first consideration in determining whether the legislation or action in question can be justified.”

Injunctions can be granted to protect any number of rights. Indeed, resource companies have demonstrated injunctions can be used rather effectively against First Nation activists seeking protection of resources asserted to be central to the enjoyment of First Nation rights. The test for securing injunctions threatens to create a hierarchy of rights where corporate interests and property rights are capable of usurping the constitutional rights of First Nations. This is not a problem with the law of injunctions. It is a problem with aboriginal law.

If one holds to the view that consultation and accommodation presents no opportunity for First Nations to veto a development project, then aboriginal law is presented with a disturbing gap. If a court is presented with this gap, I believe it would need to very carefully consider the subtle distinction between thwarting a process and blocking substantive government action which would undermine eventual recognition of an asserted aboriginal right.

There would appear to be no legal mechanism for a First Nation to preserve any key resource from being utterly depleted while that First Nation attempts to prove an aboriginal right. This leads to the perverse and paradoxical outcome where a First Nation would have a right to a resource, and a right to have a resource preserved, in relation to a resource that had already been depleted.

This is why I believe First Nations can exert a ‘veto’. In the duty to consult cases, I think the contrary position is at best unstable, and quite likely incorrect.

Maybe the consultation process is not the appropriate vehicle. Clearly, injunctions are not appropriate. If that is the case, the Honour of the Crown may require recognition of some other procedure to preserve resources necessary to the enjoyment of aboriginal rights, pending resolution of claims.

This wouldn’t be such a concern if the Supreme Court had articulated a framework for articulating aboriginal rights with more flexibility. By definition, aboriginal rights must be central to the distinctive culture of a First Nation. If they cannot be exercised, then Canada has destroyed a culture, and violated a core human rights obligation – the right to culture. Indeed, the rigidity and species-specific nature of aboriginal rights presents a range of other complicating factors. But that’s another post.

This post is focused on domestic law. Some other time I may post on free, prior and informed consent under international law and why Canada is obligated to respect First Nations ‘veto’ power, under certain circumstances, pursuant to particular international human rights obligations.