Kwicksutaineuk and the oldest ‘debate’ in Canadian Aboriginal Law

by reconciliationproject

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) ( , Justice John Beverly Robinson decided to swing another way. Against the backdrop of a situation which some might find familiar (, 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 ( 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) ( or Isaac v. Davey (1977) ( – 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, 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 ( and Haida ( – 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.