A reconciliation project

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

Month: October, 2012

Bill C-428

Why First Nations should support the private members bill to repeal the Indian Act…and why First Nations should oppose it

I. What it is
Bill C-428 is a private members Bill being brought forward by Conservative MP Rob Clarke. The Bill was up for some debate last week in the House of Commons and will probably come up for some more debate in about a month. In general, private members Bills don’t go anywhere unless they have the support of the government. This Bill apparently enjoys the support of the government, so it may move.

My understanding is that First Nations are generally opposed to this Act because its really just about ‘tinkering’ with an Act that everyone apparently agrees should just be abolished. It’s commendable to want to shift discourse, though I’m led to wonder whether what’s actually on the table right now is even worth considering.

II. So what’s so bad about tinkering?
I’m left to wonder, what’s so bad about tinkering? To put it another way, if there is a prospect of removing a particularly bad provision of the Indian Act, why not support doing so, even as an interim measure? ‘Tinkering’ with the Act would not preclude a larger reform initiative (i.e. repeal), and indeed, may even facilitate repeal as provincial and federal governments become more accustomed to First Nations exercising the relatively small degree of self-government that C-428 would enable (by ending Ministerial veto powers).

Then, there is also the question of whether this Act even constitutes mere tinkering, or is something a bit more.

III. Why FNs should support this thing
I have written elsewhere about the extent (or lack thereof) of law making authority under the Indian Act, and especially the power of Minister disallowance under s.82 of the Act, here (http://wp.me/p1AYud-12). Under the Indian Act, the Minister has the right to veto, unilaterally and without reasons, any valid exercise of First Nation law-making authority. It’s a remarkably unjust provision of the Act because it denies First Nations the same kind of control over local affairs that any other government (provincial or municipal) may exercise.

I’ve written elsewhere about free, prior and informed consent under the law and the way that the FPIC standard is often confused with the term ‘veto’ (http://wp.me/p1AYud-1j). Yet on law-making, it is clearly the Crown which holds a veto over First Nations law-making. My point has been this power, a colonial era holdover, is not only inconsistent with the Honour of the Crown, but contrary to the Constitution itself. I don’t believe that any exercise of this power is actually legal.

And lets be clear, section 81 laws are pretty strong. Shin Imai, in his Annotated Indian Act, posits that these laws could trump otherwise valid provincial laws (incorporated through s.88 of the Act) or even other federal laws or regulations (such as those developed under the Fisheries Act). It seems paradoxical to me that First Nations wouldn’t jump at the chance to have greater legislative authorit, even if only as an interim measure while the Indian Act itself is slowly repealed.

One possible way to remedy this situation is to litigate it. A cheaper and faster way to deal with it is to simply repeal s. 82 of the Act. The latter is precisely what section 8 of C-428 proposes to do. To be clear, this is tinkering because it is only one section of C-428 (the Bill alters several other sections of the Act) – but it is ‘tinkering’ with a ridiculously unjust section of the Act.

Moreover, I don’t exactly see First Nations standing up to challenge the validity of s.82. That’s probably because invalidating s.82 would require a costly and uncertain (though as I’ve written before, I don’t think that uncertain) court challenge.

First Nations should give serious consideration to supporting this Bill, due to s.8. There is nothing to preclude doing so while calling for the ultimate repeal of the Act (something else which I strongly support). While that repeal is being negotiated, First Nations would be in the position to exercise a degree of self-government previously reserved only for non-native governments.

IV. Why should FNs oppose
While I think First Nations should consider supporting C-428, I can think of two reasons for First Nations to oppose. The first is that the government will attempt to either remove s.8, or reinsert a power of Ministerial disallowance (veto). First Nations support for the Bill would be coopted by the government, leaving First Nations with a status quo, while government would claim a PR victory. I’m not sure how likely this would be, but I do believe government might be inclined to try. After all, the government stated it supports C-428, but suggested it may want to make a few ‘tweaks’. I suspect one of those ‘tweaks’ is preserving the Minister’s veto power over reserve governance. This is a real risk, and I am not reassured by the government’s statements on C-428 (in fact, in the absence of greater specificity, I’m a bit scared by them)

The second reason relates to other sections of the Act. Here, I’m writing only about s.8 of C-428 of the Act – I’m not addressing other provisions. It is entirely possible that other provisions may create problems for First Nations. I’m not quite sure how, and I haven’t heard any substantive criticism of the Act to date. Of course, I haven’t heard any support for repealing any of these provisions, either.

What I have heard is that First Nations want to repeal the Indian Act and want to be consulted on the process for doing so. It’s a fine counterproposal, but First Nations should ask whether C-428 represents a starting point on such a process. Section 8 would dramatically enhace First Nations powers of self-government in the iterim.

I understand the ‘moral hazard’ argument (if government doesn’t consult First Nations here, then it won’t on more intrusive reforms of the Act). Indeed, more intrusive reforms on First Nations governance is exactly what is happening now with C-27 (the Accountability Act, which I’ve written about https://reconciliationproject.wordpress.com/2011/11/30/first-nations-and-accountability/ and https://reconciliationproject.wordpress.com/2012/10/02/attawapiskat-first-nation-v-canada-funding-over-substance/). In brief, I believe while these reforms are portrayed as being about improving First Nations accountability to First Nation citizens, what they really do is increase First Nations accountability to non-First Nations citizens, taxpayer advocates and other non-First Nations interest groups — effectively diminishing accountability between First Nations and their citizens.

The governments nebulous, and I suspect prevaricating ‘support’ for C-428 is the main reason I would be reluctant to advocate strongly for First Nations support for C-428. I do think First Nations need to at least take a look at the Bill itself, though, and ask whether the ability to exercise a less limited form of self-government (not self-determination) is worth risking a ‘moral hazard’ First Nations already face.

The duty to consult and municipalities

My last post was devoted to the clash of interests and rights between municipalities and Nations involved in Non-Intercourse Act claims in the US. Now, to address the ‘clash’ of municipalities and First Nations in Canada. The case is Neskonlith Indian Band v. Salmon Arm (City). Judith Sayers has an excellent post on Neskonlith (she beat me to the punch) here: http://fnbc.info/local-governments-do-not-have-duty-consult-first-nations. So, I tread into these waters only to make my broader point that First Nations, municipalities (with whom FNs are most likely to have an ongoing relationship), policy makers and Courts need to be aware that the idea that aboriginal rights are ‘disruptive’ to municipal governance may be seeping into Canadian law. This will create a number of perverse outcomes, potentially setting back FN-Canada relations, hindering economic and social development and leading to unjustifiable and confusing law.

While I’m on the subject, it would probably be worth making a few comments about Adams Lake Indian Band v. Lieutenant Governor in Council at the British Columbia Court of Appeal

I have written in the past about the Adam’s Lake trial judgement (here: http://wp.me/p1AYud-s). Specifically, I was interested in the conclusion that ‘policy’ decisions, such as the incorporation of a municipality, implicate the duty to consult. That decision was appealed.

The BC Court of Appeal noted that after pointing out that the trial judge stated that the actual and specific act of incorporation did not materially impact aboriginal rights. In the trial judgement this was followed by the following paragraph:

[149] This superficial analysis, however, is not a sufficient inquiry into the issue of adverse impact. A close examination of the facts, even under this “before and after” comparison approach, reveals that from a practical perspective there were significant alterations in the spheres of influence and the balance of power, as between the Band and the Sun Peaks Development Corporation, with a corresponding reduction in Provincial government influence over the acts of the local government due to the independence gained through incorporated status.

The BC Court of Appeal was not impressed. At para. 68 of the Appeal, the Court stated, “In my opinion, there is no basis in the evidence for this conclusion… It appears to me that the judge arrived at the conclusion found in her para. 149 by mixing into her analysis the continuing issues relating to the development of the resort.”

Respectfully, that’s kind of the point. The rationale of the trial court was that incorporation as a municipality would enable a range of further decisions which could impact on claimed aboriginal rights. This flies in the face of the Rio Tinto decision’s point on the requirement to consult on ‘high level’ policy decisions. There the Supreme Court of Canada held that there is a requirement to consult on such decisions where they would have an impact on the exercise of claimed aboriginal rights.

If, on one hand, municipalities don’t have the duty to consult, but can and do make decisions which impact on aboriginal rights, then one must conclude that the (provincial) decision to incorporate a municipality should attract a high level of consultation. But the BCCA expressly held the opposite in Adam’s Lake, only months (weeks?) before deciding Neskonlith.

The BC Court of Appeal offered no analysis, nor rationale for how to separate ‘continuing issues’ from the act of incorporation.

Given the Court’s judgment in Adam’s Lake, it appears it is the Court of Appeal, rather than the trial judge, which developed some remarkably unprincipled reasoning.

One of the reasons for the Court’s conclusion in Adam’s Lake is that the effect of incorporation minimally effects the exercise of aboriginal rights (at para. 76). A fact specific, but remarkably short sighted (indeed in light of Neskonlith, incorrect) conclusion. The reason is that creation of a municipality creates a continuing self-governing entity – indeed, one which will eventually view pre-existing aboriginal rights as ‘disprutive’ to its own ability to exercise governance over what has become a shared territory. This is precisely the tension used by the US Supreme Court to deny aboriginal rights in the context of Non-Intercourse Act claims.

The short-sightedness of the BC Court of Appeal shouldn’t be surprising. In general, this case exemplifies why Courts are generally not well placed to decide on policy issues – the ‘unintended’ or long term policy consequences of decisions.

This raises the complexities of the concept that ‘policy’ decisions are subject to the duty to consult – and perhaps one reason Courts should focus on whether the Crown’s conduct was honourable, rather than ancillary policy questions about the effects of recognizing a duty to consult in certain circumstances.

And on the main point – should municipalities be considered Crown Agents for the purposes of the duty to consult and accommodate? I would naturally suggest ‘yes’ – municipalities are creatures of provincial statute, and are tasked with key provincial interests – maintaining effective and responsible local governments which can contribute to the continued development of the province.

This Court offered no framework for deciding which Crown delegates would be tasked with the duty to consult and which would be exempt. The SCC addressed this issue in Rio Tinto, though admittedly mainly in the context of administrative tribunals — its a bit sad that they may be asked to confirm or further articulate their reasoning for other Crown delegates, but apparently necessary. The Neskonlith reasoning suggests that, for example, a Crown corporation, may or may not have a duty to consult – and the only way to know is to ask the BCCA.

As an analogue, First Nations are often considered federal delegates in the administrative law context. The reason is that First Nations exercise delegated authorities to fulfil federal legislative and policy objectives (including the self government policy). It strikes me as unfair to exempt municipalities from the requirement to consult and accommodate – particularly where the Court has provided no sound basis for doing so.

Allowing this decision to stand would likely render irrelevant the duty to consult and accommodate for several First Nations because many developers will simply incorporate as municipalities and evade the requirement to consult and accommodate. For example, it is common practice for mining companies to incorporate a ‘company town’ already – to include the actual mine site in the town limits might reduce (but not eliminate) a company’s exposure to duty to consult claims. Consider something the BCCA dismissed – that the Adam’s Lake case itself involved a successful attempt to incorporate a municipality in order to develop a ski resort.

These two cases at the BCCA highlight the havoc that municipalities may play with respect to aboriginal rights. As in the US, there appears to be an assumption in Canada that aboriginal rights are so disruptive of municipal governance that the two cannot coexist.

In the US, this has led to the development of a special legal defence (new laches), which specifically and effectively precludes Nations from even securing a hearing on land rights disputes.

In BC, the feared disruptive nature of First Nation claims has led the Court to conclude that municipalities, and municipal governance, is effectively beyond the scope of the duty to consult and accommodate.

A possibly disturbing conclusion, given the amount of regulatory power municipalities have in light of the Spraytech decision (one could easily see municipal laws which preclude the exercise of treaty or aboriginal rights). In fact, Diane Saxe has a neat little blog post on municipalities v provinces and provinces v feds (http://envirolaw.com/shared-authority-shared-risk/)

Also, and more important, an unjust conclusion if one recalls that the point of the duty to consult and accommodate has been to provide interim relief in relation to aboriginal rights claims. The Court is effectively (and quite surreptitiously) holding that the interests of municipalities are stronger than the Constitution itself.

Reconciliation cannot only occur between First Nations and distant federal or provincial governments. For ‘everyone to get along together’, local action is paramount. Indeed, as a policy matter, it is at the local level where reconciliation should be supported most strongly. These decisions do not support dialogue on First Nations rights or interests, in fact they encourage quite the opposite – from all Parties.

The true shame of these decisions is that reconciliation is occurring at the local level, as municipalities and First Nations are increasingly engaging each other in meaningful dialogues, and sometimes partnerships. The BCCA seems determined to place a chill on such progress, and likely reverse it, all due to the unstated assumption that First Nations rights are disruptive to municipal governance.

Municipalities, Indigenous Rights and disruption

The concept of ‘disruption’ and municipalities

This post is a bit of a tangent into U.S. law, but the purpose is to set up a brief discussion of Neskonlith Indian Band v. Salmon Arm (City). My point on Neskonlith has more to do with municipalities and the duty to consult. Also, I have an ongoing series of issues with ‘asymmetry’ in procedural rules of law, and the case below raises a nice example of such asymmetry under US law.

There was a major victory recently in the U.S. case The Canadian St. Regis Band of Mohawk Indians et al v. the State of New York (http://www.srmtnsn.gov/_uploads/site_files/9-28-12-mohawk-land-claim-ruling.pdf). This is a Non-Intercourse Act claim, which is currently under pretty severe threat of dismissal due to a fairly novel, random and somewhat unprincipled series of rulings by the 2nd Circuit Court of Appeals and the Supreme Court (of the US).

I have alluded in the past to Non-Intercourse Act claims (in relation to Keewatin, here http://wp.me/p1AYud-y) , so I will provide a very brief definition of the term ‘Non-Intercourse Act claim’. The Royal Proclamation is usually cited as one foundational documents of Canadian aboriginal law or policy. Put simply (perhaps too simply), the Royal Proclamation declared a policy that only the federal Crown would be capable of accepting surrenders from indigenous nations. In other words, treaties and cessions could only really be made with the colonial government, not with individuals or, as it were, provinces.

The U.S. basically disavowed the Royal Proclamation. Shortly after independence, for a series of policy reasons remarkably similar to those that ushered in the Royal Proclamation, the U.S. promulgated the Non-Intercourse Act (NIA, actually, there were a series of them, the latest I believe in 1790). All the NIA says is that the federal government must ‘be there’ for treaties. As it happens, this is a minor problem in the eastern states because the federal government often wasn’t ‘there’ for treaties – states just went ahead and made treaties with various nations.

These tensions, between states/provinces and federal governments, particularly as related to land tenure, are reflected both in NIA cases and in some Canadian cases, particularly Keewatin.

To be clear, under U.S. federal law, a number of nations have been deprived of traditional lands, territories and resources – contrary to U.S. law – and have been left without any form of legal redress.

After decades (centuries, really) of using any number of legal and political strategies to address the inequities (or perhaps non-implementation) and illegalities of these ‘state’ treaties (including long periods where Tribes were either denied standing, or required the consent of the U.S. to bring legal action), the long forgotten Non-Intercourse Act was successfully invoked by one tribe. This led to a flurry of claims by other tribes, essentially asserting that several ‘treaties’ with states were not treaties at all.

No matter where you go, it seems, any kind of land rights case involving indigenous peoples seems to take forever. The United States is no exception. Many NIA cases are older than most law students, and likely as old or older than a good number of my readers. These claims have been argued before the Supreme Court on several occassion. Very few have reached trial.

In 2005, the 2nd Circuit Court of Appeals dismissed a Non-Intercourse Act claim (Cayuga v. New York) on the basis that it was time barred, under an equitable doctrine known as laches (). Laches is simply a defence that an unreasonable delay on the part of the plaintiff has resulted in undue prejudice to the defendant. This wasn’t any ordinary application of the laches defence; however, it might be better to call it ‘special laches’. I would go so far as to suggest its not laches at all, just a sui generis excuse to dismiss Non-Intercourse Act claims. I will nonetheless refer to the doctrine as ‘special laches’.

To understand special laches, it would helpful to review the Supreme Court decision in Sherrill v Oneida (). Sherill was decided only months before Cayuga (amazing how fast the wheels of justice can turn sometimes). In dismissing NIA claims, the 2nd Circuit was really only extending (improperly in my view because Sherill was not about land claims, but governance) the Supreme Court’s reasoning in Sherrill to land claims.

In Sherrill, the Oneida Indian Nation had purchased lands which were within the limits of the city of Sherill, NY. The lands were also within the traditional territory of the Oneida Indian Nation. More accurately, they were within the territory which was ceded to New York through an invalid treaty. The Oneida Indian Nation refused to pay municipal taxes to the city on this basis. Incidentally, please remind me never to make an aboriginal rights claim in the context of a tax dispute.

The Supreme Court essentially concluded that it would be unfair to recognize Oneida Indian Nation governance authority over isolated tracts of land within the city. I’m not sure why this bothered the Supreme Court, which has done surprisingly little to deal with the aftermath of the allotment period (indeed, this case presented an interesting case of ‘reverse allotment’). I could refer to the Patchak decision as an example of this, err, indifference, but better to read the highly recommended and venerable TurttleTalk blog: .

What the Supreme Court said in Sherrill was that if a particular claim would be disruptive to the settled expectations and governance of a municipality, then the defence of laches should apply to a claim. I should note that the existence of procedural bars facing Indians attempting to vindicate land rights actually calls into question whether any ‘delay’ in pressing a claim would be ‘unreasonable’.

Or for that matter, prejudicial. Indeed, the long history of procedural delays itself should be viewed as prejudicial to the plaintiffs interest in such cases. However, the Court concluded, based on a fairly fleshed out evidentiary record (I believe the Supreme Court examined the laches issue several years before Sherrill). To be clear, the rule could be condensed thusly:
1. Is this claim ‘disruptive’ in nature? If yes, then
2. Has the plaintiff engaged in unreasonable delay,
3. Which has resulted in undue prejudice to the defendant?

The Second Circuit took this reasoning and expanded it considerably. First, all Non-Intercourse Act claims are, by their nature, disruptive. That is because they are all based on the concept that the plaintiffs are entitled to possession of the land. That is, necessarily, disruptive. Moreover, if I understand correctly, the Court simply assumed that laches should apply in these circumstances, because, after all, its been a really long time since these ‘treaties’ were negotiated. (That the claims couldn’t even get into court for a really long time really isn’t the Court’s problem, I guess)

Also, because the United States has intervened on behalf of the Nations, the Court also taught us that ‘special laches’ can apply against the federal government. This is relevant because outside ‘special laches’, a laches defence never applies against the federal government in the US.

This means that that the ‘settled expectations’ of a municipality trump the pre-existing property rights of indigenous nations. This is kind of key, because municipalities are effectively creations, and subject to, both federal and state laws. In these cases, there is no question that federal and state misconduct combined to deprive indigenous nations of their lands, territories and resources.

Since that Second Circuit decision, Non-Intercourse Act claims have been facing dismissal. This past week, one of these claims finally managed to survive a motion to dismiss. To my knowledge, it is the only NIA claim which has survived a ‘new laches’ defence. For now. While several other aspects of the Mohawk claim were shot down, it appears that one aspect of the claim, involving lands within the reservation boundary but ‘outside’ the reservation (almost like allottments), were deemed to be non-disruptive.

How does this link to Neskonlith? More on that in my next post, but I suggest that the Court’s treatment of the relationship between a municipality and First Nations in that case is inconsistent with the Honour of the Crown and may threaten reconciliation more broadly.

Attawapiskat First Nation v. Canada : Funding over substance

Here’s a decision from the Federal Court of Canada, striking down Canada’s decision to place a third party manager at Attawapiskat First Nation (AFN) (http://canlii.ca/t/fs78f).

Basically, the Federal Court found very little in the way of a record from AANDC on why the First Nation was placed into third party management. What little evidence there was suggested the intervention was necessary in order to address a housing emergency at AFN. The problem for the Court was that the method of intervention chosen, third party management, had little, if any, relationship to the emergency. Third party management is simply a state where an outside administrator is retained to run most aspects of a First Nation’s administration. It is remarkably intrusive and results in a Chief and Council which have markedly diminished capacity to administer the First Nation.

I didn’t study history because I can just watch the reruns

To me, the case seemed very similar to Pikangikum FirstNationv.Canada (http://canlii.ca/t/j5n), a 2002 case where a First Nation was placed into third party management because it was alleged that the health, safety and or welfare of First Nations citizens were in jeopardy. The First Nation had been suffering a suicide epidemic, which in turn had created a certain amount of political discomfort – perhaps because the remarkably poor living conditions on the reserve were being publicized along with the epidemic. That decision incidentally was overturned by the Federal Court because it was ‘patently unreasonable’ (I really can’t express how much I love the Conway decision for doing away with such charming terms, but that’s another story).

I think Attawapiskat was pretty clearly an example of a federal bureaucracy, like in Pikangikum, which simply didn’t make a sufficient connection between provision of federal funding and housing or health outcomes in the community. I don’t believe there’s anything new there because I believe that the federal government does see these situations as mere funding administration issues. And that’s a huge problem.

Canada’s real $$ problem

Think about how Canada reports on progress it makes with respect to First Nations. ‘Several hundred million’ invested in education, ‘several billion over three years’ invested in housing, etc. Canada seems to never report on outcomes and only rarely even reports on where it allocates all this funding. The latter is pretty convenient because most people assume all that money goes to First Nations, when in fact, good chunks of it could be taken up by bureaucrats, consultants, academic institutions, lawyers, etc. In fact, the only people I’ve ever seen who concern themselves with such matters are generally on the right (who are attempting to advance their own agendas), which is a bit of a shame because the issue of allocation allows for a slightly more critical examination of what Canada actually does on aboriginal issues.

I’ve long since given up on the idea that the government of Canada has any interest in measuring or communicating outcomes of its funding exercises. There are a range of efficiencies which could be discovered which might multiply the effect of the amount Canada ‘delivers’ for aboriginal issues.

Implications of Canada’s role as a funder

But when the government decides to sit back on the sidelines and act only as a funder, there are a number of interesting little legal ramifications. For example, it might be difficult to directly sue the government if you have a negligently constructed home on reserve. Why? The federal government didn’t build it, they just contracted someone (probably your First Nation), who likely contracted someone else to build it.

Good luck getting the federal government to care about conditions in First Nations communities if they are legally insulated from the effects of misappropriations. The geographic (isolated) and demographic reality of First Nations means hoping for political pressure is simply not realistic for many First Nations. And the Attawapiskat and Pikangikum cases both show there is a pretty hefty political risk for First Nations to take political action.

But could one attack the federal government for acting negligently in its role as a funder? Could one attack the federal government for discriminating in how it allocates funds (this is actually currently being tested)? As I’ve suggested elsewhere on Attawapiskat (https://reconciliationproject.wordpress.com/2011/11/30/situtation-in-attawapiskat), could one suggest there are substantive obligations on the Crown to adequately fund certain activities, and ensure those activities are undertaken?

There is a certain irony to doing so, because Canada often deflects inaction on outcomes by focusing on the amount of funding it is allegedly spending on some problem (housing, health, rights,etc.). By focusing on amounts ‘invested’, rather than outcomes, Canada escapes accountability by framing aboriginal issues as issues of money, rather than outcomes. Failing to focus on outcomes means that the potentially innovative solutions are never identified by policy makers (meaning that the only innovation, and the only hope for aboriginal peoples, often rests at the ‘community level’, which is increasingly disconnected from the funding agencies ‘responsible’ for reporting on those outcomes (or, more accurately, reporting that funding has been expended)

This threatens to perpetuate ongoing situations of poor outcomes for aboriginal peoples, while increasing the vulnerability of any meaningful funding for any services for aboriginal peoples. Vulnerability is increased because a corporate culture which focuses on funding levels rather than outcomes is easily criticized by those who suggest increased funding levels make things worse, not better.

Of course, lost in this entire debate (except to First Nations, Inuit and Metis) is the relatively important issue of how funding is expended, and is it even rationally connected to improving outcomes?

All that is really left to attack for aboriginal peoples seeking to improve outcomes is the federal framework for funding programs and services. The key to forcing the Crown to fulfill l its share of responsibility on aboriginal issues by focusing on outcomes may be to undercut its reliance on its role as a distant funding agency.

The Honour of the Crown and Funding Agreements

One thing I can be sure of is that Attawapiskat makes it clear that the relationship between First Nations and the Crown is viewed by Canada as a contractual one. The court rejected that view (and for this reason, I could see an appeal – more on that below). For example, at para. 58 the Court states, “This situation is one that engages the honour of the Crown. “

OK, if negotiation and operation of Consolidated Funding Arrangements engage the honour of the Crown, then that might mean that concepts such as fair dealing and consultation and accommodation might be relevant. On the other hand, maybe the honour of the Crown enters into all aspects of the First Nations-Crown relationship, and this isn’t anything new (I sincerely doubt this, but present it as a counterpoint).

Indeed, at para. 59, the Court notes, “[t]he power imbalance between government and this band dependent for its sustenance on the CFA confirms the public nature and adhesion quality of the CFA”. Such a power imbalance, combined with the honour of the Crown, might actually imply some particular Crown duty.

The Honour of the Crown is one source of treaty interpretation principles. It is also the source of the duty to consult and accommodate. It is a generative principle of law because it generates legal rules and frameworks.

The Attawapiskat judgment provides one with ample ammunition to suggest that there ought to be some special duty owed First Nations by the Crown in the context of the modern program and policy framework. When combined with the fact that a range of treaties implicate health or social commitments from the Crown, and the relatively expansive statement in Carrier, that policy decisions are subject to the duty to consult if they impact aboriginal or treaty rights, means there is quite a bit of space now to define such a ‘special duty’.

A special duty?

Well, I think the field is wide open, but I could think of a few potential rules that one might want to pitch out there. One might argue that funding has to be proportionate – that is to say, adequate to meet the needs assessed by the First Nation and minimally, proportional to what other Canadians receive for similar services.

One might argue that First Nations should be consulted on proposed changes to government of Canada policies which impact on CFA negotiation and implementation. Indeed, one might see a framework not dissimilar to the consultation and accommodation framework which requires:

  • a give and take on both sides ;
  • requires the federal government to fund programs and services (and track outcomes) to some minimum level.

The consultation and accommodation ‘model’ of forced dialogue certainly wouldn’t hurt in the programs and services context, particularly if there were:

  • reasonable parameters surrounding minimal funding levels for activities;
  • reasonableness of expected outcomes for that funding;
  • some kind of mechanism for consultation on program policy; and,
  • an opportunity for redress (by either party).

While a range of federal departments fund programs and services on reserve, one would imagine such a framework would only apply to the funding agreements offered by AANDC and Health Canada, as both of these departments offer pretty essential programs and services.

It would even be helfpul to import a contract law (I think, at least this is in the UCC) and Honour of the Crown requirement that contracts, and particularly CFAs, should be negotiated in good faith by the federal Crown. This would mean that the Crown couldn’t make unreasonable or, perhaps more accurately impossible, demands of First Nations in CFAs (then relying on ‘federal policy’ to ‘forgive’ an inevitable case of non-compliance)

Will the Crown appeal?

I could see where Canada might think twice about appealing this case. First, this case involves a fairly high profile and political situation. That situation hasn’t gone away, but it has been relatively quiet. Appealing means risking that the situation will gain in profile once again.

Second, the Crown really looked bad on this one. It’s hard to imagine a case with worse facts for the Canada. The factual record is so bad you’d have to think twice about launching an appeal. This is only a trial-level judgement and it might be better to wait on these issues until Canada has a case with a better factual record. In addition, the actual holding in this case isn’t so bad for Canada.

And yet, on the other hand, the reasoning in this case is pretty dangerous. The statements from the Court on the honour of the Crown and the imbalance in the ‘negotiations’ between First Nations and Canada on CFAs would be very inconvenient if they were allowed to hang around. Someone like me might pick them up and try to use them in some other situation. I would certainly recommend doing so.