A reconciliation project

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

Month: January, 2012

A shred of a basis for consent aboriginal rights law.

This is the first of two or more posts on free, prior and informed consent. This is more or less a response to this article, “Experts doubt First Nations could stop Keytsone XL pipeline”, found, for example, here:

I was shocked to read this article, which implies that development in Canada is an all or nothing proposition. While this may sometimes be the case, I’d suggest there are very few absolutes in aboriginal rights law – for better or worse, the law seems to be more about encouraging a respectful and fair dialogue. What’s shocking; however, is the suggestion from aboriginal law experts that any kind of development can proceed, even if it violates aboriginal rights.

Some of the quotes of these experts (and let’s be clear these are bona fide experts in aboriginal law), include:

"This notion of free, prior consent has no legal basis in Canada – none. Zip," said Vancouver lawyer Thomas Isaac, a former B.C. government chief treaty negotiator who has acted in the past for Enbridge. "That’s not to say that people ought not to seek consent. That’s a different question. But is there a basis in law? Not a shred," Isaac said.

But the declaration is not a treaty, said Nigel Bankes, chair of natural resources law at the University of Calgary’s law faculty.

"I think most people would say that part of the declaration is aspirational in nature rather than customary law."

Let’s set aside the discussion of the United Nations Declaration on the Rights of Indigenous Peoples and the questions of whether the concept of free, prior and informed consent is customary international law (and what FPIC means in international law) and further, whether and how customary international law would be applied in a Canadian court.

Let’s just stick with the domestic law. Is there really no legal basis for consent under Canadian law? Or, more accurately, is there at least “a shred” of a basis for consent in Canadian law?

Of course there is! Let’s start with this quote from the Delgamuukw case (http://canlii.ca/t/1fqz8), helpfully cited in the article:
The Supreme Court of Canada’s landmark 1997 Delgamuukw decision specifically spells out the government’s right to "infringe" on aboriginal title.

"The development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of aboriginal title," the decision said

This excerpt is related to the concepts of infringement and justification. The court is letting us know that Aboriginal title can be infringed if the government can meet a rigorous justification test, just like any other aboriginal or treaty right. While aboriginal rights cannot be abrogated or derogated, they can be ‘infringed’. This is important because if government could not infringe rights, then it would be incapable of taking legislative, regulatory or even administrative action if a First Nation objects.

The test for infringement was set out in one of the earliest aboriginal rights cases, a case called Sparrow (http://canlii.ca/t/1fsvj). But this does not mean that government gets a blank check to simply name an action ‘infringement’ and proceed to render an aboriginal right meaningless. Quite the opposite. Consider this language from Sparrow, “We acknowledge the fact that the justificatory standard to be met may place a heavy burden on the Crown.”

I’ll spare a lengthy discussion of the justification standard defined in Sparrow to focus on only one aspect – the requirement of government to produce a valid objective for its action.

Keep in mind that Sparrow involved regulations to conserve environmental resources used by First Nations and by others, not to construct a pipeline for the benefit of corporate and foreign interests, each with very little stake in preservation of key environmental resources. If you think I’m going overboard on the environmental nature of infringement, consider what the Sparrow court said about the types of reasons, or objectives, the government could put forward to infringe aboriginal rights:

An objective aimed at preserving s. 35(1) rights by conserving and managing a natural resource, for example, would be valid. Also valid would be objectives purporting to prevent the exercise of s. 35(1) rights that would cause harm to the general populace or to aboriginal peoples themselves, or other objectives found to be compelling and substantial.

Given the tone and tenor of this paragraph, I get the impression that the Sparrow court didn’t intend the “other objectives found to be compelling and substantial” to be a broad category. In fact, it appears the court is specifying that compelling objectives are those which benefit First Nations, as well as non-natives (in fact, one could argue, quite aggressively, that compelling objectives are only those which preserve the subject matter of the aboriginal right – say actions to preserve a fishery could validly infringe a fishing right).

The quote from Delgamuukw cited in the article establishes that aboriginal title could be subject to infringement by government. I reiterate that if the government cannot justify its action, then it cannot infringe aboriginal rights. In fact, that the reason its important to recognize this quote is discussing infringement and what infringement actually means. In absence of government ability to meet the ‘burdensome’ justificatory standard, Canadian law effectively requires consent. I would argue that it is enough of “a shred” to hang my hat on.

Only three paragraphs later in Delgamuukw (and still on the topic of justification), the court states “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.”

That seems like a pretty decent shred to me. Of course, some people may argue that this is pretty weak because the Delgamuukw reasons were obiter, meaning these points weren’t necessary to determining the outcome of that case, and as such, are not binding. Possibly, but remember, all I’m looking for is a shred of a basis for consent in Canadian aboriginal law.

Of course, I can produce much more than a shred. In fact, consent is alive and well in aboriginal law, and I would think every aboriginal lawyer in Canada would be prepared to argue it. Why? Well, that line from Delgamuukw was picked up by the court and given legal effect in the Haida case ().

Haida didn’t even involve infringement/justification of an aboriginal right. It involved a dispute involving a mere claim of aboriginal title. In a dazzling display of quotation marks, the court referred back Delgamuukw (my paragraph, not that cited by this news article) stating:

The Court’s seminal decision in Delgamuukw, supra, at para. 168, in the context of a claim for title to land and resources, confirmed and expanded on the duty to consult, suggesting the content of the duty varied with the circumstances: from a minimum “duty to discuss important decisions” where the “breach is less serious or relatively minor”; through the “significantly deeper than mere consultation” that is required in “most cases”; to “full consent of [the] aboriginal nation” on very serious issues. These words apply as much to unresolved claims as to intrusions on settled claims.

If you somehow think I’ve made a case that consent leads to a veto, consider what the court said at paragraph 48 of Haida, “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.”

Haida establishes that the concept of consent is well-entrenched in Canadian aboriginal rights law. In fact, paragraph 48 of that decision suggests to me that the feared “veto” apparently doesn’t apply to unproved claims(and I’d nonetheless be prepared to argue that it does in certain circumstances), but that the “veto” does exist and apply to ‘proved’ claims, including treaty rights.

Either way, Haida tells me that there is a more than a shred of a basis in law for the concepts of consent and veto. Given appropriate facts and circumstances, I’d be willing to wager a court would openly endorse First Nations consent, or a “veto”, using the shreds identified here, among others.

The Attorney General and Reconciliation

Here’s a question for some thought and some reflection. What role does the Attorney General play in terms of reconciliation? First Nations know the AG very well because whenever one makes a claim against Canada, Canada is represented by the Attorney General.

The Attorney General is a bit of an odd office. On one hand, AG’s are usually tasked with providing the government with advice and defending government actions when challenged. On the other hand, AGs are also tasked with upholding the laws of the land, which include promoting compliance with the law and taking action, in the courts, to prevent violations of the law. This last task is usually executed by criminal and regulatory prosecutors, who investigate and prosecute violations of the criminal law, environmental law, tax law, etc.

In Canada, the office of the AG is presently combined with that of Justice Minister – the latter being a political office, the former I would suggest extending beyond politics.

The Constitution is the highest law of the land. This means all other lawful exercises of authority, including legislation and regulation (and in my mind policy), must be sourced in some Constitutional authority and not in conflict with the Constitution.

Section 35 of the Constitution provides recognition and affirmation of existing aboriginal rights.

Provinces assert legislative jurisdiction, so long as exercises of that jurisdiction are consistent with the Constitution, over property and over natural resources. In doing so, provinces may take actions inconsistent with s. 35 rights.

Whereas the Canadian Attorney General acts very capably as a legal advisor to the government of Canada, and as a defender of government actions, I sometimes wonder whether or why it doesn’t take a more aggressive role in ensuring s.35 rights are respected, both by federal departments and by other levels of government.

It is quite possible that the Attorney General of Canada or of any of the provinces already plays this role. Indeed, given the secrecy that seems to permeate the policy development process and government operations in Canada, this is a distinct possibility. Many First Nations rights advocates would likely beg to differ.

Other countries have different experiences in terms of the role of the Attorney General. It is interesting to note that in the United States, the Department of Justice Environment and Natural Resources Division is responsible for, among other things, “bringing suits on behalf of federal agencies to protect tribal rights and natural resources”.

What is even more interesting is the Environment and Natural Resources Division at USDOJ has two sections – an ‘Indian Resources Section’ and a ‘Natural Resources Section’. While the former “litigates on behalf of federal agencies when they are protecting the rights and resources of federally recognized Indian tribes and their members”, the latter “defends claims asserted by Indian tribes against the United States on grounds that the United States has failed to live up to its obligations to the tribes”.

The URL for these sections is here: http://www.justice.gov/enrd/4497.htm

Somehow, the US DOJ has developed a facility to protect tribal resources and tribal rights, even where the United States itself is often the target of claims by tribes. Even more amazing to me is that US DOJ somehow manages conflicts of interest that presumably arise when acting both as a defendant in Indian rights cases and a plaintiff.

I imagine this gives the USDOJ a more balanced perspective on ‘federal Indian law’, at least at the corporate level, and may contribute to a sense (or an illusion) of the Attorney General serving all segments of society. I’m sure there are more than a few critics of this model, and of the American approach more generally. Here, I only posit that this type of function within the Attorney General’s office is consistent with a reconciliation objective.

This rose out of a particular, but hardly unique, situation in the United States where for a period of time, Indian tribes lacked the capacity to bring suits on their own behalf (or so I’m led to believe). Canada experienced a similar period, apparently without the same evolution in the role of the Attorney General.

It’s very rare (I know of no case) for the Canadian or a provincial AG to bring a claim on behalf of First Nations in order to protect First Nations rights or resources.

Doing so might decrease the ‘cost of justice’ for First Nations. More important, it could lead to a dramatic shift in the way that the government approaches First Nations. An Attorney General which supports the promotion and the protection of aboriginal rights could well generate a profound shift in the way the government approaches aboriginal rights cases.

This is fairly important in an egalitarian democracy. It’s a bit difficult for minorities to press for rights with the majority, particularly if that majority also controls the legal machinery of the state. This is especially true for First Nations, which are not a minority, but indigenous nations – each with their own set of values and laws, and each with its own relationship to lands, territories and resources. Reconciling those relationships, values and laws cannot be accomplished with a democratized AG function alone.

It would be an excellent first step. And properly mandated, it would be much more than lip service to reconciliation.

Extent of First Nations law making powers under the Indian Act

Seems like everyone these days have profound problems with the Indian Act. As a serial contrarian, I’ll devote this post to some of the lemonade that can be made from the Indian Act, and specifically, s. 81 of the Act. I’ll also suggest that it’s quite possible that s. 82 of the Indian Act, dealing with the Ministerial power of disallowance, could be challenged by a First Nation.

Section 81 of the Indian Act allows First Nations to enact by-laws, effectively allowing for local control and First Nation jurisdiction over a range of subject matter. I’m particularly interested in environmental issues, and there are a range of potential possibilities in s. 81 for environmental application.

It’s about a bit more than bee-keeping and poultry raising (s.81(1)(k), if you’re curious).

To be fair, contravention of by-laws typically don’t carry heavy penalties. For environmental applications; however, s. 81(2) of the Act allows a court to make “an order prohibiting the continuation or repetition of the offence by the person convicted.”

There are cases out there which support the proposition that a First Nations by-law may provide a defence to otherwise inconsistent regulations under the Fisheries Act. Indeed, even where provinces have acquired regulatory rights over reserve lands through Natural Resource Transfer Agreements, the existence of a valid First Nations by-law may oust the provincial jurisdiction (an outcome I find difficult to reconcile with the doctrine of inter-jurisdictional immunity because if the power exists to regulate First Nations lands, any exercise of provincial authority over those lands must be ultra vires. I’m content to assume the doctrine operates only in very limited circumstances and the NRTA situation is not one of them).

First Nations by-laws can fill the alleged ‘jurisdictional gap’ on reserve, by allowing First Nations to develop considerably comprehensive regulatory schemes. Moreover, First Nations would appear to be able to develop environmental by-laws that are stronger (or weaker) than federal environmental regulations (although there is case support that if the laws do not present an ‘operational conflict’, there may be concurrent jurisdiction).

As one may guess, this is a pretty rich area for legal development.

My concern is not with s. 81 by-laws per se, but with the disallowance power. Section 82 of the Indian Act permits the Minister the power to quash any proposed First Nation by-law. This is likely a holdover, possibly the last holdover in Canada, from the colonial era, when English authorities retained the power to disallow Canadian exercises of jurisdiction.

This is a grave incursion on any jurisdiction’s ability to legislate over its own affairs.

Section 35 of the Constitution ‘recognizes and affirms’ existing aboriginal rights. The idea of an aboriginal right to self-government has never been rejected by any court in Canada, although specific attempts to meet the evidentiary burden of proof, for example in relation to gambling, have failed.

The 1995 federal inherent right policy expressly states that the government recognizes and supports self-government over local matters. I expressed concern in an earlier post about judicial treatment of this policy, partially because I believe the court may have overstated the federal Crown’s position, by omitting critical text in the policy related to negotiation. Notwithstanding, it is undeniable that supporting First Nations self-government is official policy (and has been for quite some time).

I’m not sure one would be able to frame a ‘legitimate expectations’ argument on the strength of the 1995 policy. But one might be able to frame an ‘honour of the Crown’ argument. This is particularly true in matters of self-government, where the government has made a written representation (in a policy statement, no less) and likely has made several oral representations over the years regarding the importance of self-government.

This could make a particular exercise of the disallowance power subject to judicial review, I guess.

It would be much more interesting to suggest that, for the reasons mentioned above, the disallowance power can only be exercised for good cause – something that goes far beyond mere inconsistency with federal or provincial regulations – but extends to a showing of clear and convincing evidence the by-law will produce harmful impacts on First Nations citizens. Some sort of ‘middle ground’ test which ensures First Nations are able to pass by-laws, but that these by-laws aren’t perverse – that they don’t produce unintended consequences on-reserve.

It would be most interesting to me if one were to suggest the power itself is unconstitutional. As I mentioned above, the power of disallowance smacks of colonialism. There are, already, several legal safeguards which protect the interests of individual First Nation citizens – and, in any event, by-laws are not immune to review (in fact, unlike provinces and the federal government, First Nations generally lack judiciaries – something else that should change).

There is no compelling policy reason for the Minister to control on reserve legislative authority. Recognition of First Nations control over reserve environments, by contrast, puts the legislative power in the hands of those most likely to benefit from effective regulation.

Finally, there are several legal reasons (some outlined above, some even founded in international law) the Minister should not be capable of disallowing by-laws.

It would be a difficult argument to win, because lined up on the other side is the clear and plain text of the Indian Act, as well as several decades of well-entrenched government and First Nations practice.

Such an argument would hopefully force a rethink, both by the government and by First Nations, on the possibilities of meaningful legislative authority for First Nations.

Chief Mountain – Is self-government an inherent right or delegated (and if so, from where?)

The case is Chief Mountain v. British Columbia (Attorney General), and it can be found at http://canlii.ca/s/6lk79

I must admit I know very little about the the Nisga’a Treaty. And though the crux of the recent Chief Mountain decision (at the trial level), isn’t terribly interesting to me, there are a couple of collateral points that I find fascinating.

The first concerns this question of where the Nisga’a legislative authority actually comes from. It’s a principle of constitutional law (and constitutional democracy) that all exercises of government authority must be traced back to some specific constitutional power. One of the fascinating things about Chief Mountain is that a court was confronted, yet again, with the perplexing proposition that self-government is an aboriginal right protected by section 35.

I say perplexing because many legal minds would have us believe that the only legislative authority in the Canadian constitution rests in the jurisdictional provisions of section 91 and 92. And that all other legislative or jurisdictional powers must be sourced directly therein, or delegated to other actors (for example First Nations).

I clearly don’t buy that, and I don’t believe most collective rights holders would buy it, either. Aboriginal rights are sourced ‘outside’ the section 91/92 framework. They are not derived from a United Kingdom enactment, any more than they are sourced in the United Kingdom’s sovereignty, in fact aboriginal rights survive and are recognized despite that framework. Hence, one reason that s. 35 rights have invalidated otherwise valid exercises of either s. 91 or s.92 legislative authority.

In fact, the crux of reconciliation is development of a constitutional framework which provides mutual recognition and respect for self-governance rights of (at least) three actors, federal, provincial and aboriginal governments, which derive their constitutional authorities from radically distinct sources.

A juridical definition of aboriginal self-government, and even tenative recognition of such rights, requires substantial flexibility from any legal mind steeped in the British/Canadian constitutional tradition. And Chief Mountain is the most recent case I’ve read which directly raises the issue.

The court dealt with this issue, much as I suspected it would (and, apparently, much as Canada recommended): by avoiding it. Because all of the relevant players were ‘at the table’ and consented to the treaty, one may conclude that proper delegation has occurred here. Indeed, the court explored this possibility in some depth.

I found the court’s discussion on the possibility that aboriginal self-government is protected by s. 35, and that the treaty merely articulates that right, both brief and confusing. Of course, Canada’s argument on the point (at para. 217) is that since it could go either way (inherent right or delegated authority), then the powers under the treaty ‘could’ have been delegated from the other two levels of government. Or maybe not, but all the bases are covered, so why bother specifying in this case?.

A sloppy argument and a very sloppy resolution to the issue. This is a complex and difficult point that screams for some sort of articulation of principle. On the other hand, some have been saying that a principled basis for self-government is needed for quite some time.

The second relates to what Canada says in the Chief Mountain decision. To quote from the decision:

[215] Canada’s policy on Aboriginal self-government was articulated in a 1995 statement, “Aboriginal Self-Government: the Government of Canada’s Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government”. That policy states, on p. 3:

The Government of Canada recognizes the inherent right of self-government as an existing Aboriginal right under section 35 of the Constitution Act, 1982. It recognizes, as well, that the inherent right may find expression in treaties, and in the context of the Crown’s relationship with treaty First Nations. Recognition of the inherent right is based on the view that the Aboriginal peoples of Canada have the right to govern themselves in relation to matters that are internal to their communities, integral to their unique cultures, identifies, traditions, languages and institutions, and with respect to their special relationship to their land and their resources. [Emphasis added]

[216] Mr. Russell confirms that to be Canada’s continuing position.

I find this point to be more than a bit problematic. The illogic of this ‘internal’ limitation on self-government deserves its own post. More problematic here is that this position seems to confirm that the right to self-government is recognized to be ‘inherent’. This position is confusing to me, because exercises of self-government in Canada only receive recognition by the courts when they are exercised pursuant to a treaty which specifically recognizes law-making power, the Indian Act or possibly some other enactment (such as through s. 59(L) of the Canadian Environmental Assessment Act). That is not an inherent right to self-government because self-government can only be exercised through some other valid legislative authority.

This is sometimes referred to as the ‘Recognition Doctrine’, because any exercise of aboriginal rights can only occur after Canada has recognized and consented to the existence of such a right. The Recognition doctrine also deserves its own post, because it is bad law – and to the best of my knowledge, it is no longer recognized (forgive the pun) itself as valid.

My point here is that Canada’s position in Chief Mountain appears to be at odds with Canada’s actual practice on matters of self-government (in fact, it may even be contradictory to Canada’s position in the Pamajewon case, for example). As I recall, the policy itself doesn’t actually call for recognition of the inherent right, but rather calls for negotiation of that right with Canada. Once Canada accepts such a right in a negotiated settlement, then the ‘inherent’ right of self-government can be exercised. Agan, this looks like the ‘Recognition’ Doctrine, but the problem I have is this reality is not actually reflected in the quote from the Court.

Indeed, I take the Court’s statement on the inherent right, and particularly the Court’s exclusion of language on negotiation, to be an affirmation that the right not only exists absent state action, but may be enforced. Somehow, I doubt that’s what Canada’s position actually was in the case, which is yet another reason I find those two paragraphs a bit troubling.