A reconciliation project

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

Month: September, 2012

Aboriginal Title and legislation

Aboriginal Title and Legislation

I’ve already written a bit about a rumored proposal to institute a ‘fee simple’ property ownership. But given that the Canadian Property Rights Conference is going on this week, I figured it might be appropriate to revisit the issue with a quick post on an under-discussed aspect of this proposal.

Apparently, there is something to this rumor because there is now a website professing support for a First Nations Property Ownership Act (FNPOA) (http://www.fnpo.ca/). And it is further rumored that several provisions of the Act have already been drafted, as supporters of the Act are already making fairly specific claims about the Act’s safeguards for First Nations governance and land tenures.

I’ll write more on the specifics of these claims at a later point. This post more or less picks up on a theme I was discussing one of my earlier posts on Aboriginal Title and terra nullius (http://wp.me/p1AYud-1m). Or my very early reaction to the idea of an FNPOA, here (https://reconciliationproject.wordpress.com/2011/12/16/property-reform-on-reserve) and here (https://reconciliationproject.wordpress.com/2011/12/22/property-reform-part-ii)

While I’m more or less undecided on the FNPOA (I want to see the Act), I’m more than a bit shocked that one particular aspect of the FNPOA hasn’t been raised by opponents-in-principle to the initiative (again, I’m still waiting to see what the legislation actually says) because I think this is possible one of the two greatest problems with the FNPOA proposal (the other is more of a policy problem related to unintended consequences).

The problem

The basic problem is the way that the Supreme Court has articulated the nature of Aboriginal Title in the past suggests that the mere existence of the FNPOA could fundamentally change the nature of a declaration of aboriginal title.

This is a major problem for proponents of the Act because they really have very little control over how the Courts interpret the Constitution. As a result, they can offer no guarantees or assurances that this problem can be managed. It’s just out of their control!

Nature of Aboriginal Title is not determined by laws of indigenous nations, but by reference to Canadian law — for no apparent reason

I’ve written a series of posts about what I assert is a less-than-principled approach to the articulation of a test for aboriginal title, as well as the ‘content’ or ‘nature’ of aboriginal title. I suggest much of the legal reasoning in this area of law rests on naked assertions or unsupported assumptions.

One may agree or disagree with that analysis but one cannot deny that the existence and nature of Aboriginal Title is not determined by the customary laws of indigenous nations. I would suggest that the “practices” of claimants are relevant to a determination of title. In fact, in the Marshall and Bernard case, the Court states, “It is established by aboriginal practices that indicate possession similar to that associated with title at common law.” Statements like this are the reason why I assert that the ‘reconciliation’ which occurs in Canada is a reconciliation of claimant’s practices with Anglo-Canadian law. It shouldn’t be, but it is.

Nature of reserve lands and nature of Aboriginal Title are the same

The problem starts with Guerin (http://canlii.ca/t/1lpfn). At page 379, the Court stated, “It does not matter, in my opinion, that the present case is concerned with the interest of an Indian Band in a reserve rather than with unrecognized Aboriginal Title in traditional tribal lands. The Indian interest in the land is the same in both cases”.

In my estimation, the Court was compelled to deal the issue of Aboriginal Title because (I’m guessing) the claimants had pleaded it, along with several other arguments. Guerin was decided in 1984, only two years after the Constitution Act, 1982, and likely while Constitutional Conferences were ongoing (my political history, and knowledge, are quite limited).

But the Court drew an inexorable linkage between the qualities of reserve lands and the qualities of aboriginal title. For no legal reason, I might add. No legal support, not even comparative law or an academic paper. This statement was just an assertion of the Court. This, incidentally, is a linkage I think needs to be broken; however, I cannot deny that the current law states that reserve lands have the same proprietary qualities as aboriginal title.

So, I understand why many First Nations would be very hesitant about entertaining a proposal which would allow individual land holding (by non-natives) within reserves, in fee simple. It could have dramatic impacts on First Nations seeking to assert aboriginal title.

One might argue Guerin isn’t really an aboriginal title case at all, its more about fiduciary duty. If you are inclined to think that this point in Guerin is not really that important, then consider how this reasoning was applied in Delgamuukw.

Supreme Court uses statutes related to on-reserve land tenure to define Aboriginal Title

In Delgamuukw, the Court relied on Guerin to equate the nature of reserve landholdings to Aboriginal Title lands (at paras. 120-121). This is yet another example of how a naked assertion can somehow become an important rule of law in a later case. Again, rather than using an argument based on clear legal principles, precedent (like Calder or British Colonial law) or even international or comparative law, the Court simply used the Indian Act as a basis for understanding the nature of aboriginal title.

Of course, the Court wasn’t limited to the Indian Act. It also considered the Indian Oil and Gas Act(at para 122). While the Indian Oil and Gas Act isn’t exactly opting legislation (as, say, the First Nation Lands Management Act), it also clearly applies only to those First Nations with Oil or Gas resources on reserve.

I find the idea of relying on statute to define constitutional rights quite confusing, but that’s another issue for another day. As critical as I am of this reasoning, it pales in comparison to the almost blind application of the Guerin rule – at least in applying statutes in Delgamuukw, the Court tried to cite something to support its reasoning.

I should point out that the Court was relying on the Indian Act and the Indian and Oil and Gas Act to support a finding which was very favourable to aboriginal claimants – namely that uses of Aboriginal Title lands should not be restricted only to customary practices, but can be used for any number of other purposes – so long as not incompatible with the culture of the claimant.

But this is troubling. The Court has demonstrated a propensity for applying an Act which applies to a limited number of First Nations (hey, like the FNPOA!) in order to derive a general point which applies to the nature of Aboriginal Title itself. It troubles me mainly because I find this kind of reasoning a very poor substitute for a principled approach to the law, which can be interpreted independent of Parliament’s actions.

It is ridiculous to suggest that statutory formulations do not impact on Aboriginal Title because Aboriginal Title law is already influenced by statute and regulation

For proponents of legislative reform of First Nations property to suggest that statutory formulations do not have any effect on Aboriginal Title is either naïve, disingenuous or ill-informed. The rule offered in Guerin is very sound law – reserve lands have the same properties as Aboriginal Title lands. If one can be held in fee-simple individualized lots, so should the other. One may not like that (I don’t), but it is the law.

The reasoning offered by the Court in Delgamuukw, relying on statue to define aboriginal title, also remains good law today. It has not been overturned in subsequent decisions, nor have subsequent courts disavowed the reasoning.

Proponents of the FNPOA cannot assuage concerns that the FNPOA itself may alter or influence judicial interpretation of the nature of aboriginal title

If past experience is any indication, First Nations will be offered fairly generous resources (that is to say, cash for implementation) to sign on to the FNPOA. A range of valid concerns which have already been raised could, in theory, be dealt with either in the legislative development of the Act or in its implementation.

There is absolutely nothing that proponents or the government can offer in terms of assurances about the potential impact of the Act on the continued elaboration of Aboriginal Title law. As noted above, the Court’s reasoning in Delgamuukw remains valid, meaning there is no reason to suspect that a legislative enactment supporting individual land rights (versus collective land rights) for First Nations would not have a serious and profound influence over the articulation of Aboriginal Title rights in Canada.

Such fears are only magnified by the very real fact that there has yet to be a declaration of Aboriginal Title in this country. Depending on how one views current cases under appeal (such as the William case), there may not be such a declaration for many years. Meaning that if such an Act were brought into force, it could dramatically influence the Court’s reasoning and the development of the law of aboriginal title.

Such fears may be overblown because, as I have pointed out previously, there already exist a range of individual property rights on reserve (from CPs to leasehold interests). On the other hand, none of these other property rights is so brazenly and prominently featured in a major piece of legislation, as would be the case with the FNPOA. Moreover, the problem for proponents of the FNPOA using this argument is that the very reason they assert the Act is needed is that these (already existing) property rights are not sufficient or genuine “fee simple” rights.

After all, legislating Aboriginal Title is precisely the approach taken by one of Canada’s sister countries, Australia. Legislating title is not expressly on the table with the FNPOA, but given the Guerin and Delgamuukw decisions, its far from clear the FNPOA wouldn’t have a similar impact in future court cases.

This is where unprincipled development of common law gets us

Going back to Guerin, I must reiterate that the Court simply elected to state that reserve lands have the same quality as Aboriginal Title lands. With no real basis for doing so. Canada has hummed along with this unprincipled assumption as a foundation of aboriginal title law, for quite some time. Until discussions about reforming reserve land tenures become an issue, at least. All of a sudden, this particular conclusion from Guerin may prove to be a remarkable hinderance to the FNPOA.

Principles matter. Equating reserve land with Aboriginal Title and then applying statute as one means of supporting, again, a favourable conclusion for aboriginal claimants, creates more problems than criticism from random bloggers (like me). The weirdest thing is that language in Delgamuukw was almost gratuitous – there were other ways to support the Court’s conclusion. Indeed, this entire concern could be ameliorated quite easily – it would take only a statement from the SCC, disclaiming the importance of statute in an Aboriginal Title case.

The decisions of the Court in Guerin, and later Delgamuukw, may serve to dramatically undermine First Nations support for an FNPOA.

For my part, I’m very surprised this issue (reserve lands are similar to aboriginal title) hasn’t come up yet in the debate. If it does, I think it will be hard for proponents of the FNPOA to dodge. It’s a sufficiently grave issue that I would need to be seriously sold on the potential policy benefits of the FNPOA in order to offset the considerable risk the legislation poses to the future articulation of aboriginal title.

Kwicksutaineuk and the oldest ‘debate’ in Canadian Aboriginal Law

The oldest debate in Canadian Aboriginal law – a discussion of Kwicksutaineuk/Ah-Kwa-Mish First Nation v. Canada (Attorney General)

Here we go again – another trip on the oldest merry go round in Canadian Aboriginal law. The question: what is the legal nature of an aboriginal collective rights holder? This question is often intertwined with the related question: what is the legal nature of a First Nation (or Indian Band)?

There’s no need to fret about the juridical status of First Nations because this debate is older than the Indian Act itself. Indeed, we should probably start WAY back in the early 1800s in the United States. The early decisions of the US Supreme Court implied that Indian Tribes were, for lack of a better term, nations – or at least, like nations. One indigenous nation, the Cherokee Nation to be precise, decided to take the US court’s reasoning out for a spin by arguing that they were basically a ‘foreign nation’ for jurisdictional purposes. What happened in that case was a bit…um..Calder-esque, but we can be reasonably sure that the Court figured that indigenous nations, Tribes, would henceforth be treated as domestic dependent nations.

Cool, so what does this have to do with Canada? Well, think of the times. It’s the 200th Anniversary of the War of 1812 and most of these cases were decided in the aftermath of that conflict. Canada likes to make a big deal of how that war ‘created’ modern Canada. I’ll assert to you that it did, in the sense that ‘Canadians’ of that period wanted to do everything they could to distinguish themselves from the Americans.

So when Upper Canada’s courts were confronted with the issue of the juridical status of the Indians (remember, no Indian Act yet), what do you think they did? Well, they sure didn’t say, “These guys look like domestic dependent nations to us”. Oh no. In Jackson v. Wilkes (1835) (http://gsdl.ubcic.bc.ca/collect/firstna1/archives/HASH5a55.dir/doc.pdf) , Justice John Beverly Robinson decided to swing another way. Against the backdrop of a situation which some might find familiar (http://en.wikipedia.org/wiki/Grand_River_land_dispute), Justice Robinson proclaimed, “I do not think that a patent in the form of this instrument would have created a corporation consisting of "the Mohawk Nation and such other of the Six Nation Indians as wish to settle on the tract of land described;" and unless it can have that effect, as there are no persons particularly named, there cannot be said to be properly any grantees”.

This is about to sound real familiar. One of the main ways that First Nations and Metis, in particular, have been precluded from seeking justice for violations of aboriginal rights, has been this argument that the identity and number of the rights holders is somehow indeterminate. Almost two hundred years later, First Nations are still not considered ‘jurisdictions’ (qua provinces) or anywhere near domestic dependent nations (a categorization, incidentally, which many U.S. tribes find to be inadequate). At best, First Nations may be considered federal administrative delegates with some special powers (in some cases, the ability to sue and be sued, a very beneficial presumption that they are valid aboriginal rights holders, etc). You might call First Nations Super Delegates. (And let’s be clear, First Nations have become very, very adept at making ‘lemonade’ out of this lemony situation – Super Delegate status isn’t some kind of unspeakable horror – but you have to wonder what the law leaves behind)

Almost two hundred years later, and indigenous nations are still unable to seek justice in the courts.

Almost two hundred years later, and indigenous nations continue to struggle to apply their own laws in Canada’s courts.

For me, bridging these gaps is at the heart of ‘reconciliation’. One starting point would be recognition of indigenous jurisdiction, but I guess we’re still fighting over the issue of collective identity (I could write a book about individual identity, but someone else already did this (http://www.amazon.ca/Beyond-Blood-Rethinking-Indigenous-Identity/dp/1895830605). It’s a problem, but I tend to think the complete invisibility of our collective identities is also a pretty major problem.

A bit of background on the case. This is really an action about aquaculture licensing and environmental damage. That, in itself, merits its own post . But the Court of Appeal recently released a judgment about a technical and arcane area of aboriginal law because the clamant elected to frame this case as a class action. There’s a lot of stuff going on in this judgment. I could easily write a post about the Court’s treatment of the claim, as it relates to the law of consultation and accommodation (in my mind, the claimant’s strongest chance for a successful appeal rests here). Or alternatively, about some of the class action law issues raised by the case, which could turn out to be a pretty interesting post in itself. But no! Today, I’m writing about collective personhood!

A class action is a particular legal vehicle which allows one claimants (the representative plaintiff) to represent the interests of a class of plaintiffs. Class actions generally facilitate access to justice. They are usually used when the costs of litigation outweigh the benefits that one plaintiff alone would receive. By pooling claims, plaintiffs (and counsel) are able to make litigation worthwhile. This is important because in absence of the class action vehicle, large corporations and governments (typical defendants) could commit tortious acts (or less commonly, violate contracts) with relative impunity – so long as the damage suffered by any given individual would be sufficiently minor.

I’ve already blogged about the Behn case – which, by the way – is headed to the Supreme Court of Canada and is scheduled to be heard next December. In my mind, that case indirectly implicates the issue of whether individuals have sufficient standing to assert aboriginal rights, or whether that right rests solely with First Nations. Much to my chagrin, the only parties which have sought to intervene in Behn are the Attorney General of Canada and the Grand Council of the Crees. Reading this case, I’m actually dying to see what Canada will have to say in Behn. A finding that individuals could assert such rights could have profound impacts on aboriginal and treaty rights litigation because it might open up the class action as a vehicle to vindicate claims (here, I’m thinking about class actions on treaty rights).

Class actions are nothing new in Aboriginal law, but this one is special. The claimant in KWICKSUTAINEUK/AH-KWA-MISH FIRST NATION decided to propose that the members of the class would be aboriginal collective rights holders, rather than individuals or even First Nations! In doing so, KWICKSUTAINEUK/AH-KWA-MISH FIRST NATION enters a long and proud tradition of generating mass confusion in aboriginal law. I’ve already outlined one 19th Century case, but you also have these cases like Logan v. Styres (1953) (http://gsdl.ubcic.bc.ca/collect/firstna1/archives/HASH4dc3.dir/doc.pdf) or Isaac v. Davey (1977) (http://scc.lexum.org/en/1977/1977scr2-897/1977scr2-897.html) – there’s quite a recent number from BC nations, as well. I will spare a full recollection of this confusion for another day, but I will start at the beginning, lest anyone doubt my assertion that we are, in fact, on the ‘oldest merry go round in Canadian Aboriginal law’.

For openers, this is a pretty harsh judgment. Whenever a court tells you there are two ways you could lose, but doesn’t even bother to tell you which one applies here, its going to be a pretty tough judgment, “For present purposes, it is unnecessary to resolve the issue of the limits of the merits-based criteria prohibition because in this case, it is my view that the merits-based criterion at issue is either impermissibly merits-based or not sufficiently objective.” (at para 89) I mean, usually courts will throw you a bone and say something like, ‘Here, the evidence demonstrates that the merits-based criterion at issue is impermissibly merits-based. In the alternative, for the reasons above (if any) it is not sufficiently objective’.

Why is this bad? Well, a couple of reasons. Judgments should form the basis of government policy. So if there are two alternatives, the Crown (or a corporation for that matter) may be happy to assume it prevailed on either of these, in future cases. It’s not a horrible issue, it just seems questionable form. On the other hand, lets say you want to appeal something like this – its difficult to do so when its not even clear why you lost. Clearly, appealing from this judgment is going to mean challenging virtually every aspect of the Court’s reasoning. All this makes for a longer appellate (and reply) brief, more hours for lawyers, and possibly, a slightly perturbed reviewing authority (how perturbed, I don’t know, lawyers have the inclination to challenge everything they can anyways).

So what do I find most disturbing with the KWICKSUTAINEUK/AH-KWA-MISH FIRST NATION case? Well, a smattering of issues. The implied recognition that aboriginal law is inconsistent with access to justice; reconciling the position of Canada in this case with its own practice (and presumably its position in its upcoming Behn intervention); the Court’s discussion of representative proceedings; and the general lack of direction from the Court in terms of criteria to determine representivity.

Aboriginal Law and Access to Justice

At paragraph 50, the Court noted core aspect of aboriginal law, determining the identity of the plaintiff, “appears to conflict with the CPA goals of judicial economy and access to justice”. Whoa – OK, MAJOR ISSUE. This is a major issue, both in terms of reconciliation, but also in terms of constitutional law itself.

The Court is suggesting that the goal of ‘access to justice’ is INCOMPATIBLE with aboriginal law, and particularly identifying plaintiffs and ‘the analysis required to establish aboriginal rights claims.’ That’s a problem. I DO sympathize with the Court. Aboriginal law issues ARE complex. So are class proceedings. (In fact, some might suggest class proceedings diminish access to justice in aboriginal rights cases, http://www.cba.org/cba/submissions/pdf/04-30-eng.pdf at 2-3, 4 )

There are a variety of means to accommodate complexities of aboriginal law to ensure that aboriginal claims could be dealt with through a class procedure. Like, say, adopting a consultation and accommodation framework (I won’t go farther because, as I said, earlier, I think this is a good ground for appeal which is unrelated to the collective identity issue).

I would strongly suggest that access to justice was at the heart of the Supreme Court’s decisions in Taku River (http://canlii.ca/t/1j4tr) and Haida (http://canlii.ca/t/1j4tq) – in fact that’s why I like them, despite some of my misgivings about further delaying recognition of rights. In the spirit of access to justice, because I don’t believe the Court ever cited it as a principle driving reconciliation in those cases, the Court devised a process to partially implement claimed rights.

It’s not much more than a hop, skip and a jump to suggest that aboriginal claimants in Canada suffer from human rights violations solely related to their inability to access the justice system. I have to commend the Supreme Court of Canada and, indeed, the BC Court of Appeal, for devising rules of law which facilitate access to justice for claimants. So its disheartening to read the suggesting that aboriginal rights are by their nature inconsistent with a goal of facilitating access to justice.

I’m shocked people aren’t up in arms about that.

This statement, while not central to the reasoning in the case, undermines reconciliation. In my mind, reconciliation is a legal principle which requires access to justice. Most troubling, though, is that this so-called complexity is related to the most preliminary of issues – the identity of the plaintiffs. This includes the ability to access special procedures, such as class actions, in order to facilitate such access. I can’t imagine the Court was seriously suggesting aboriginal rights issues are to be held only to procedures which are slow and ineffective.

Collective rights holders are undefinable

This is apparently Canada’s argument, and I’m now dying to see what they do if this ends up in the Supreme Court, or alternatively, what Canada plans to do in Behn. Canada provided affidavit evidence (outlined by the Court at para 54), challenging the KWICKSUTAINEUK/AH-KWA-MISH FIRST NATIONs representivity and its claim for fishing rights in the territory. Essentially, the affidavit appears to claim that KWICKSUTAINEUK/AH-KWA-MISH FIRST NATION is a “merged group” , which came into being post-contact and that members of the affiant’s pre-existing nation are the holders of the right in question.

This is interesting. I have some degree of sympathy for what Canada is doing here, at least legally. I really wonder whether there is a genuine position here, or whether Canada is just throwing everything it has at this case in an attempt to generate confusion. Remember, the more confusion, for this Court, the more reasons to deny certification.

The reason is that Canada argues that one or more members of KWICKSUTAINEUK/AH-KWA-MISH FIRST NATION may have aboriginal rights or title independent of KWICKSUTAINEUK/AH-KWA-MISH FIRST NATION. Well, isn’t that exactly what I see going on in the Behn case? And yet, I would imagine Canada would intervene in Behn on behalf of the First Nation because claimants in Behn would render nugatory accommodation measures agreed to by their First Nation. And that is the kicker of Canada’s argument.

Canada’s argument seeks to empower non-First Nations players, the very same players which have tremendous difficulties accessing claims settlement vehicles which Canada itself sponsors (say, comprehensive claims processes). I guess Canada may be attempting to develop a system where First Nations find increasing difficulties seeking redress in courts and are thus effectively compelled to use whatever policy framework Canada happens to offer. But I find it very curious that Canada’s chosen means for doing so is to empower individuals and sub-groups.

I’m not sure anyone sat back and thought through the logical extension of this argument, so I’ll lay it out. According to my read of Canada’s position, if you are a private corporation seeking an impact and benefit agreement, you would be very well advised to negotiate not only with Chief and Council, but also with anyone (individual or sub-group…I’m not so sure) who may have some kind of ancestral claim to your territory. Or hope Canada doesn’t show up in the ensuing litigation.

Also, umm…I hope when Canada makes any kind of deal with a First Nation, particularly related to accommodation, that they manage to consult and accommodate with the right people. Canada is clearly seized of the issue that individuals and subgroups may have pretty strong claims to aboriginal rights (and as we all know from Haida/Taku, all it takes is an assertion of a claim to trigger the duty to consult and accommodate).

Very odd. As I say above, I have some sympathy for Canada’s position because I believe that hereditary title holders should have recourse to the law. I’ve already suggested (link here) that I think the failure of aboriginal law to cope with juridical personality is both unprincipled (in terms of aboriginal law) and illegal (in terms of international law). I’m sure by the time Canada releases its intervention in Behn, I’ll be able to state that I have mischaracterized what Canada did in this case.

Representative Proceedings

Can’t we all return to the days when we just assumed First Nations (or Indian Bands) were ‘good enough’ and everybody did everything through representative proceedings? (one might as well pine for the days when First Nations had to use the criminal system, because then we didn’t get into these issues, but to each his own).

Many, many aboriginal law cases proceed as a representative action. A Chief will often act in a representative capacity for all of the citizens of a First Nation. Remember this: Representative actions involve an individual, representing the interests of a group of other individuals. Don’t be confused by the minor detail that the right being claimed is very often a collective right.

For issues of convenience, or ‘judicial economy’, we often assume that the Chief adequately represents the interests of the members of the First Nation, just as we often assume the First Nation is a valid rights holder. I believe there is something to be said about the second assumption. After all, First Nations are themselves products of Canadian sovereignty, they couldn’t pre-exist it. One might argue that First Nations are merely the modern character of an ancient society, that they have a dual role (administrative delegate and aboriginal rights holder or successor-in-interest). My only problem is nobody ever seems interested in that particular debate.

Well, at least until they get into a certification hearing on an environmental case almost two hundred years after Justice Robinson dealt with that land grant in Jackson v. Wilkes!

And at paragraph 77, we are left wondering just why the court peremptorily concluded, “, the chambers judge erred in then assuming that non- juridical persons, “Aboriginal collectives”, could be class members.” Perhaps I didn’t read the decision closely enough to identify the basis for this conclusion. I just fail to see how an ‘aboriginal collective’ is any more or less valid than a First Nation, especially for the purposes of certification.

I guess the Court would agree with me because they also found that a First Nation is “not necessarily the proper entity to assert an Aboriginal right”! So who is the proper entity to assert and Aboriginal right? I’m beginning to feel Powley’d. If this case isn’t examined by the Supreme Court, I’m assuming I’ll be seeing a lot of that quote in the near future.

The Court does raise a pretty good policy point, though. At paragraph 78, the Court notes that “because inclusion in the class is a non-voluntary process and because an Aboriginal collective is not necessarily a legal or organized entity, the question arises as to who speaks for the collective and how it should agree upon and exercise its participatory or opt-out rights in a class proceeding.” That’s NOT a minor issue. Actually, it’s a really big issue.

I can’t believe the claimants threw this kind of an case forward without putting a lot of thought into this issue. I also strongly believe that the nameless ‘aboriginal collectives’ here are likely comprised of traditional and/or hereditary governments, with governance systems which only robust, widely known (within their communities) and likely much older than Canada’s current system of government.

However, if the claimants did not put very much thought into this issue, I’d suggest they actually have a bit of a problem. In fact, that problem, if it is real, could serve as a foundation for the Court’s conclusion in paragraph 77 and, further, it could distinguish between First Nations and ‘aboriginal collectives’ (though the Court noted it after it had already made its conclusion).

Lack of guidance

At paragraph 79 the Court concludes, “Here, there is no evidence that the “aboriginal collectives” who are class members are organized in a way that could confer legal status on them.” My problem with this is less the conclusion that the fact that the Court doesn’t even bother to let us know how “aboriginal collectives” could be organized in a way which confers legal status on them. What evidence was lacking?

In other words, other than the Court’s statement that there isn’t status here, we are left with very little in the way of why status was denied here, or how status might be found in the future. This kind of so-called ‘reasoning’ is precisely the reason why we need a more principled approach to aboriginal law.

The court also decided to “decline to decide in a general way if any Aboriginal collective, for example a First Nation that may be organized and governed along traditional lines, could or could not be a juridical person.” Cheerfully, this means “That question can be left for another day.” I’m hoping to have some kind of answer by the 200th Anniversary of Jackson v Wilkes. That would actually be a pretty good career goal.