Interventions on title

The Supreme Court will hear the Roger William case in the fall. This has the potential to be the biggest land rights case in Canadian history. I have written at length about the BC Court of Appeal decision, particularly around the concept of terra nullius. Prospective intervenors have a couple of months to scare up intervention applications. The purpose of this post is to run off a list of issues on which I’d like to see interventions.

1. Access to Justice

The trial level decision (http://canlii.ca/t/1whct) would have awarded aboriginal title, but for a defect in the pleadings. This is an extreme example of why many should have a problem with the Court’s reasoning in Lax Kw’alaams (http://canlii.ca/t/fnr69) that the rules of civil litigation should be applied in aboriginal rights litigation as strictly as in other kinds of litigation. I wrote a fairly mild post on one aspect of Lax, which I liked(http://reconciliationproject.ca/2011/11/12/lax-kwalaams/) , but will likely write a more critical one in the future on whether civil litigation should be considered an appropriate method for raising aboriginal rights issues.

I don’t know much about property litigation, so I am unsure whether it is common practice to deny a claimant relief for the type of defect identified at trial in William. To be honest, I am sufficiently unfamiliar with property rights cases to be unaware whether litigation as complex as William even exists! Complexity is relevant only because it strikes me as unreasonable to expect a claim to be pled with such remarkable specificity to be point relief must be denied, particularly when the claim, and the case, is complex. Pleadings is a major issue in Non-Intercourse Act claims in the United States (leading me to think I should write a post about the injustices of overemphasizing pleadings generally).

I do know a fair amount about aboriginal rights and about human rights. Enough to know that such protracted litigation, offered without any form of relief, likely constitutes the absence of an effective domestic remedy. Indeed, the last major aboriginal title ‘victory’ for a claimant, Delgamuukw, was no victory at all. Relief was not awarded, as the case was sent back to trial. Aboriginal title trials are typically a bit longer than other civil trials, William itself consumed 339 trial days.

That’s a long time.

So, the Chief Justice of the Supreme Court, in a speech on Access to Justice, noted “[f]or example, in 1996, the average length of a trial at the Vancouver Law Courts was 12.9 hours. Six years later, the average length of a trial had doubled, to 25.7 hours.” (http://www.scccsc.gc.ca/court-cour/ju/spe-dis/bm07-03-08-eng.asp) Now, let’s be clear, aboriginal rights matters are considerably more complicated than other civil trials. Let’s also be clear that such complexity is largely due to the way the SCC has elected to deal with aboriginal rights issues (heavy emphasis on contested evidence, remarkably complicated tests (at least factually) and challenging legal concepts). But no matter how you slice it 339 trial days is a lot more than 25.7 trial hours.

The prospect of doing an aboriginal rights trial twice, then, is a pretty serious barrier in terms of Access to Justice.

The issue here is that whatever the Court decides on the merits, relief should be awarded (or not) and the nature of the remedy should be clearly articulated by the Court. Subjecting remedy to further negotiation will not only further deny relief, but could likely result in further litigation (I will spare readers my rant on Marshall and Marshall 2).

I think Access to Justice is the most critical issue facing aboriginal rights law right now in Canada (and has been for quite some time). Often, these cases aren’t framed in terms of Access to Justice, and they possibly should. I certainly think so. We’ll see whether anyone else agrees with me.

Courts, and specifically the Supreme Court, can do a lot in order to increase Access to Justice, and in doing so, can dramatically improve conditions ‘on the ground’. Duty to consult and accommodate, which provides only interim relief (rather than an ultimate remedy) has resulted in improved relations between aboriginal peoples and industry by forcing dialogue, in increased aboriginal-industry partnerships, in greater accessibility to the environmental regulatory regime for aboriginal peoples seeking to protect critical environmental resources and has ‘changed the game’ in terms of Crown-aboriginal relations generally.

All that came from only slightly increasing the ability for interim relief, pending claims resolution.

2. Terra Nullius

I have written at length on terra nullius(here http://reconciliationproject.ca/2012/07/26/terra-nullius-part-2/ and here http://reconciliationproject.ca/2012/07/31/william-v-bc-and-terra-nullius/)

Suffice to say, I not only have strong views on the matter, but also believe this issue rests at the core of the William appeal. I believe the lower courts are improperly denying a broad territorial claim on the basis that the claimant was nomadic (or semi-nomadic). This, I have asserted, runs directly contrary to long established international law and practice, reflected most prominently in the Western Sahara Judgment of the International Court of Justice.

In my next post, I’ll write a bit more about possible interventions, including human rights.

3. Human Rights

Well, there’s a lot to intervene on here. A lot of this comes from the Inter-American system, though CERD, the Human Rights Council and others have articulated a range of pretty useful norms. Here’s a list of subissues:

Demarcation and titling

In the Inter-American system, its pretty much a given that possession is sufficient proof of title, and that, again, as a matter of Access to Justice, indigenous peoples are entitled to demarcation and titling of their traditional territories. Moreover, that titling process must respect the customary law of the indigenous people, and must reflect the collective nature of the land right. Of course, one would cite Awas Tingni (http://www1.umn.edu/humanrts/iachr/AwasTingnicase.html), but there are a range of other indigenous ‘property’ cases which fully flesh out these norms.

Culture

Article 27 of the International Covenant on Civil and Political Rights (ICCPR) protects the right to culture. Canada has ratified the ICCPR, as well as an optional protocol which provides a redress mechanism for complaints under the Covenant.

There has been longstanding recognition that indigenous culture is intrinsically linked and connected to indigenous lands. I’m going to be sloppy here and just ask that my readers take my word for it, or alternatively, that I flesh through this issue in a future post.

The point is that I think it is more than possible for an intervenor to raise the importance of culture and lands such that the Supreme Court expressly considers both the close relationship between lands and culture, as well as Canada’s international commitments on culture. More on applying international law in domestic courts here (http://reconciliationproject.ca/2012/06/21/consent-part-ii-using-international-law/).

Environmental Protection

This is likely to be a fairly contentious issue, given the ongoing assessment of the ‘New Prosperity’ Mine. I am not sufficiently familiar with the situation to know whether the Mine being proposed is within the claimed territory or not.

The rationale behind this type of intervention would be that in order to protect and maintain the cultural integrity of the claimant people, indeed to ensure their survival as a distinct people, the Canadian legal system must ensure that an aboriginal title test, as well as the definition and boundaries of aboriginal title must give aboriginal peoples sufficient power to protect their own environments.

The linkage between environmental protection and aboriginal title is basically non-existant, and I find that in general, linkages between environmental protection and aboriginal rights law in general are pretty tenuous (one exception might be found in treaty rights). To the extent there are connections, Canadian law generally characterizes environmental protection as an excuse to fail to implement aboriginal rights.

I argue the two bodies of law should be complementary (indeed, I believe this was the intention of the Sparrow judgment, whether the test has been interpreted or implemented in this way since then). In many cases, environmental protection is necessary to preserve key resources for aboriginal cultures. But the connection goes deeper. Indigenous principles and sciences regarding environmental management and sustainability, combined with practices, means that aboriginal title carries with it a right to manage environmental resources.

In the recent Sarayaku case (http://www.corteidh.or.cr/docs/casos/articulos/seriec_245_ing.pdf), a case I can, should and probably will devote a post to, the Inter-American Court linked the right to property to environmental protection. At para. 37, the Court stated:

In other words, the right to use and enjoy the territory would be meaningless for indigenous and tribal communities if that right were not connected to the protection of natural resources in the territory. Therefore, the protection of the territories of indigenous and tribal peoples also stems from the need to guarantee the security and continuity of their control and use of natural resources, which in turn allows them to maintain their way of living. This connection between the territory and the natural resources that indigenous and tribal peoples have traditionally used and that are necessary for their physical and cultural survival and the development and continuation of their worldview must be protected under Article 21 of the Convention to ensure that they can continue their traditional way of living, and that their distinctive cultural identity, social structure, economic system, customs, beliefs and traditions are respected, guaranteed and protected by the States.

This effectively links issues such as culture, food security and land rights to environmental protection. One of the great ironies of the BCCA judgment, with its implication that the claimant is or was semi-nomadic, is that to preserve culture and access to key resources (including food resources), such a people requires access to, and protection of, its entire territory. Protection of several ‘village sites’ is inadequate.

4. Economic Aspects

Finally, it would be interesting and possibly helpful to intervene on economic aspects of a title finding. I would assert that greater recognition of rights, and redress for rights, results in greater economic opportunities for all. Indeed, this is the lesson I draw from the evolution of the duty to consult and accommodate – at least in practice.

But there is more here, and some of it is related to a proposed First Nations Property Ownership Act. Proponents of the FNPOA will likely point to the Peruvian economist de Soto to support their argument that fee simple individual property rights are the key to economic prosperity.

But de Soto’s primary thesis can be read not in terms of the superiority of fee simple rights, but in terms that fee simple rights are often enforced better than other forms of rights. This enforcement provides sufficient certainty to allow meaningful investment, ‘unlocking the capital’ tied up in such lands.

One could argue that the SCC could ‘unlock the capital’ of aboriginal title lands by awarding aboriginal title and providing First Nations the space to develop their own lands management regimes for title land. This space would be provided by recognizing indigenous jurisdiction and ousting federal/provincial jurisdiction over lands management.

The benefit of such an argument, carefully crafted, is that it might serve First Nations well if the FNPOA moves ahead.

5. Interjurisdictional immunity

There have been some recent developments in this area of law, but the argument here is should title be awarded, to what extent would the province have any authority over titled lands (91(24) provides exclusive legislative jurisdiction to the federal government)? Such an intervention could be combined with another one on self-government. The reason is it is quite possible that federal legislation may not apply due to section 35.

Rather than leaving jurisdictional questions unanswered or subject to negotiation, the court could answer those questions definitively in favour of the claimant. The reason is that both federal and provincial governments already have sufficient levers to negotiate with, and such recognition would likely provide a basis for a meaningful negotiation between all three levels of government.

Let me be clear, this is a pretty superficial analysis. But I do hope to see some interventions and arguments along these lines in the William case.