A reconciliation project

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

Month: June, 2012

Final thoughts on Consent

This is, I believe, my fourth posting on consent. I’m content to leave this issue for now, but want to issue some final thoughts on the matter.

To date, I’ve suggested that there is at least a shred of a basis in Canadian law to support a right of First Nations consent. I have also posted a bit on some international law sources dealing with consent and on ‘domesticating international law’. The purpose of this post is to offer some thoughts on First Nations and consent, as it currently stands under Canadian law. This is not a post about aspiration, or where the law should go, but where it already is.

I want to start by reiterating a point that I have made in the past. Consent is a firm principle and a firm rule already in aboriginal law. For example, in Delgamuukw, the court noted that “[s]ome cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands.” (http://canlii.ca/t/1fqz8 at para 168).

Opponents of consent often conflate the term with another term — veto. They find support in one unfortunate paragraph (48) of the Haida case (http://canlii.ca/t/1j4tq), where the Court holds that “[t]his 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.”

What the Court never did was explain the subtle difference between the terms ‘consent’ and ‘veto’. Confusion over this matter leads many to speculate that there is no way for First Nations to prevent developments which would violate their rights or end their ways of life, but rather only a way for First Nations to slow the approvals process down and compel the payment of money or other inadequate ‘accommodation measures’.

Consent, incidentally, means something like “Permission for something to happen or agreement to do something.” Consent is permissive, one is allowing something to happen. The consequences for failing to secure consent vary based on the circumstances.

One definition of a veto is “[a] constitutional right to reject a decision or proposal made by a law-making body”. That’s a little strict for our purposes because it is very rare for First Nations to be faced with decisions or proposals from Parliament (although, one could argue that the Minister is a law-making body). Incidentally, the Minister of Aboriginal Affairs may reject First Nations by-laws for any or no reason — though I prefer to call that disallowance rather than a ‘veto’ — I concede ‘veto’ may be appropriate.

For my purposes, a veto is when one party, for whatever reason (or no reason at all) can prevent another party from taking action. The key point is a veto connotes a very strong unilateral action. By this I mean that to exercise a veto, for example, one need not go to court to do so. In fact, having to go to court to secure a ‘veto’ is no veto at all.

Why is the term important? It implies that First Nations, for any reason, can block certain developments by simply stating their opposition to those developments. It ignores the fact that First Nations consent in Canada can only be exercised through a court, not unilaterally.

So when people say, First Nations do not have a ‘veto’ under Canadian law, I’m content to let it slide. My understanding of the relationship between First Nations and Canada means I think that true reconciliation implies First Nations ought to have a true veto over a range of issues, but here we’re only discussing where the law is today. But it drives me crazy when people say such things to conflate a ‘veto’ with consent, and particularly with free, prior and informed consent.

To listen or read some opinions on ‘veto’ and ‘consent’, one is left with the impression that First Nations are powerless to stop development. However, let’s be clear, the reason why First Nations access courts is because they claim that certain government actions violate the Constitution. Internationally, the reason FPIC is invoked by indigenous peoples is because they are facing violations of fundamental and recognized human rights, such as the right to life, the right to be free of discrimination, the right to culture or the right to property.

In other words, many proponents of the ‘no vetos for First Nations’ position, would have us believe that there really isn’t anything that First Nations, or for that matter anyone else, can do to stop the Crown from violating the Constitution (or, internationally, any country from violating the human rights of indigenous peoples)! What free, prior and informed consent does is provide permission, or alternatively an excuse, for Crown conduct which would otherwise be unconstitutional.

It is a diminished view of the rule of law to hold a position that violations of fundamental constitutional rights can not be prevented and that victims of such violations can be made whole by payments, either before or after the fact. Fundamental rights such as freedom, life and liberty are not for sale. Nor can society mitigate conditions for people deprived of their freedom or liberty. At one time such thinking would have been used to suggest slavery could be ameliorated through regulation, rather than recognizing the condition of slavery itself needed to be abolished. In a similar vein, Aboriginal rights cannot be bought and sold and the non-recognition of aboriginal rights can not be ameliorated.

In any event, one must remember that it is not First Nations making unilateral decisions about resource projects. Rather, it is courts which must weigh the impacts of contemplated Crown conduct on First Nations treaty and aboriginal rights. In many cases, this implicates the very ability of a First Nation to continue its culture — in essence to continue to survive as a people. In those cases, a project would be disallowed.

For example, consider this statement by a federal Department of Justice lawyer to the Standing Committee on Natural Resources (http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=5160386&Language=E&Mode=1&Parl=41&Ses=1 at 16h30 or so), “meaningful consultation doesn’t need to be a process without a time limit or something that provides a veto to an aboriginal party. It is being able to justify to a third party—in this case, the courts—that you have made an honest, reasonable effort in light of the stakes for the aboriginal party and the risk of the adverse impact of your decision to factor that into your decision-making process.” Despite this rather lucid articulation of how the duty to consult works, a glance through the testimony reveals conflation with ‘vetos’ and ’consent’ elsewhere.

The role of free, prior and informed consent in such a process is to vitiate an otherwise unjustifiable derogation or infringement of treaty or aboriginal rights. Again, consent is a permissive concept and neither the duty to consult, nor Aboriginal law more generally impose a requirement for First Nations to agree — here to provide permission. The ‘veto’ spoken of here is not exercised First Nations, but by the courts.

To hold that First Nations rights cannot be used to stop projects is not a slight against First Nations, but rather against the courts, which are tasked with reconciling First Nations rights with Crown interests. To me, that is an attack on the rule of law.

Consent Part III – using international law

Application of customary international law

My last post ended on a point on free, prior and informed consent and perhaps the need to suggest some stronger language on whether FPIC is part of the law of Canada. This post won’t be about FPIC, but rather about getting international law in front of a decision-maker (like a judge)

Before getting into application, it would be helpful to define some terms. The best place to go to define sources of international law is Article 38(1) of the Statute of the International Court of Justice (http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0). Section 38(1) identifies three sources of interest to me:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

I’m going to work through these in a different order, starting with customary international law, then international conventions, followed by general principles.

A great deal of Canadian jurisprudence on the domestic application of international law involves the Charter and international human rights conventions. This is an important point because the Charter involves constitutional protections, just as section 35 does. Moreover, section 35 involves providing guaruntees to the aboriginal peoples of Canada, a group which collectively holds very little power within the legislative process. As a result, these groups, and the rights held by these groups, are especially vulnerable to state action: even more so than individuals. For these reasons, rules of international law should be more relevant to the determination of section 35 cases than to even Charter cases.

Customary International Law

To prove a rule is a customary international law norm, one needs to show that virtually all states recognize the rule, and have been acting on it out of a sense of legal obligation. One does not need to show consensus. State action can include votes on General Assembly resolutions and Declarations (A declaration, after all, is a unilateral statement by one country meant to affect the rights of one or more other countries).

If a country “persistently objects” to a particular instrument or rule, then the customary international law rule will not apply to them. This is likely one reason why Canada, after voting against the UNDRIP, was forced to “persistently object” to use of the Declaration in other forums.

By default, customary international law is the law of Canada. Demonstrating that a rule of customary international law exists is an involved process. Fortunately, many aboriginal rights lawyers have had exposure to public international law and likely have some familiarity with the test to establish such rules in Canadian courts.

One of the issues raised in Hape was the applicability of customary international law. The Supreme Court set out a useful analysis for arguing customary international law norms in Canadian courts. The court in Hape noted that Canada uses the doctrine of adoption, which states, “that prohibitive rules of customary international law should be incorporated into domestic law in the absence of conflicting legislation. “(at para 39)

In other words, so long as there isn’t legislation conflicting (indeed, ‘clearly conflicting’) with a rule of customary international law, then the law should be adopted. After canvassing the caselaw, the court concludes that unless Parliament expressly elects to disregard a rule of customary international law, those rules are the law of Canada.

In its subsequent analysis of a particular claim that a rule of customary international law exists, the court canvassed the writings of pre-eminent scholars, as well as judgments of the Permanent Court of International Justice, the International Court of Justice and an international arbitration. These are the types of sources, in addition to General Assembly votes and Declarations, which one might use to demonstrate a customary international law norm.

Hape is necessary reading for anyone contemplating making an argument based on international law. However, customary international law is not the only the only vehicle for `domesticating` international law.

International Conventions

The ratification of an international Convention by Canada does not give rise to rights. The rights must be implemented by some kind of legislation (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at para 81). However, in interpreting any related legislation, Canada’s international obligations are relevant. This is especially true if the Convention is mentioned in the legislation itself.

A good (or bad) example of the use of international law in statutory interpretation could be found in cases involving the Migratory Birds Convention Act (implementing, not surprisingly, the Migratory Birds Convention).

The most important piece of legislation in terms of reconciliation is the Constitution Act (and possibly, the British North America Act). These aren`t mere pieces of legislation, but form part of Canada`s Constitution. And, while the Constitution, and particularly the Charter, may not be strictly considered

`implementing legislation`, one must assume the framers of the Constitution intended to ensure it would be harmonius with international law.

In Slaight, the court established that constitutional guarantees are presumed to provide at least the same protections as those guaranteed under international law (in that case, the International Covenant on Civil and Political Rights). Many cases have held that international human rights treaties are relevant to the analysis of Charter cases. It is only logical that aboriginal rights affirmed through section 35 should be afforded better or similar treatment.

I would make two further suggestions. The Constitution is a living document and contains both written and unwritten rules. First, I would suggest that unwritten rules, in particular, should be presumed to be coherent with international law. Second, I would suggest that as international law evolves, our Constitutional norms should evolve with them. International law, and particularly human rights law, provides a minimum standard of treatment. Canada can, should, and often does aspire and implement standards of treatment that far exceed the minimum requirements of international law. However, in those instances where basic human dignities are denied, Canadian courts must ensure harmony between domestic practice and international requirements.

General Principles

Less than rules, but more than theories, the workings of “general principles of law recognized by civilized nations” are more than a bit vague for me. I would suggest that these principles, where they can be distilled, should be pointed out to domestic courts. The objective would be to suggest that rules recognized and implemented by courts should be consistent with these principles, rather than to suggest they constitute domestically enforceable rights. In the Dann case (http://cidh.org/annualrep/2002eng/USA.11140.htm), the Inter-American Commission on Human Rights articulated three such principles (at para. 130, footnotes ommitted):

· the right of indigenous peoples to legal recognition of their varied and specific forms and modalities of their control, ownership, use and enjoyment of territories and property;

· the recognition of their property and ownership rights with respect to lands, territories and resources they have historically occupied; and

· where property and user rights of indigenous peoples arise from rights existing prior to the creation of a state, recognition by that state of the permanent and inalienable title of indigenous peoples relative thereto and to have such title changed only by mutual consent between the state and respective indigenous peoples when they have full knowledge and appreciation of the nature or attributes of such property. This also implies the right to fair compensation in the event that such property and user rights are irrevocably lost.

General Principles can best be thought of as interpretive aids for a court on any range of issues, much in the same way that courts use Treaties as interpretive aids for implementing legislation – for example the text of the Migratory Birds Convention is relevant for interpreting the Migratory Birds Convention Act. The difference is that General Principles can and should be applied in all situations, not just those situations implicating the Charter, implementing legislation, or even international law! At the risk of being redundant, one could and should use General Principles even in contract or tort cases.

This has been a very quick and somewhat inadequate introduction to application of international law in domestic situations. There are a range of legal and tactical considerations not discussed here. For example, Canadian human rights mechanisms (provincial and federal human rights commissions) should be much more sensitive to international human rights arguments because they are more familiar and expert in the application of human rights. Because I referenced Hape, interested readers should also examine this decision: http://decisions.fct-cf.gc.ca/en/2012/2012fc445/2012fc445.html. The fun starts at para 348. In my mind, the decision demonstrates both the utility of international law and the difficulty associated with making an international law argument the main argument one advances in litigation. No doubt this case was cheered as a victory for application of international law, though I find it slightly less compelling than Hape – at least on these grounds. The decision is currently subject to appeal.