A reconciliation project

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

Month: July, 2013

Canada: love it or leave it?

Maybe some Nation should just leave it. The topic of this post is a fairly obscure case, at least for aboriginal rights lawyers in Canada. Yet the Kosovo Reference (http://www.icj-cij.org/docket/files/141/15987.pdf), by the International Court of Justice, (a pretty robust arbiter of international law issues) raises a fairly simple yet intriguing possibility. In essence, the International Court of Justice concluded that there really isn’t anything facially wrong at international law with a Declaration of Independence.

The issue in the Kosovo reference was whether a unilateral declaration of independence by Kosovars was contrary to international law. As you may (or may not) be aware, Kosovo was once territory of the state of Serbia, and gained independence after a (in my mind) protracted period of ethnic conflict.

The Court examined the issue from a few different angles, from general international law, to interpreting specific Security Council resolutions. While an interesting judgment, I’ll only focus on the Court’s discussion of general international law.

One of the best markers of the state of international law is state practice. Responding to the argument that state practice does not support unilateral declarations of independence, the Court noted that, “State practice during this period points clearly to the conclusion that international law contained no prohibition of declarations of independence” (at para. 79).

One of the hurdles to greater recognition of indigenous rights is the principle of territorial integrity. In essence, many states suggest that recognizing indigenous rights would impair their territorial integrity (by breaking up the territory of the state and creating any number of indigenous jurisdictions). The principle of territorial integrity is viewed by some as a foil to realization of the right to self-determination.

However, the principle of territorial integrity does not necessarily apply in the context of declarations of independence. After conducting an analysis on this point, the Court noted, “Thus, the scope of the principle of territorial integrity is confined to the sphere of relations between States.” (at para. 80) In other words, the International Court of Justice is suggesting that the principle of territorial integrity should not even be relevant to indigenous rights at all!

Consider for a moment the United Nations Declaration on the Rights of Indigenous Peoples, passed as a General Assembly Resolution in 2007. Article 46(1) of the UNDRIP states:

Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.

Article 46(1) of the UNDRIP highlights how much of a compromise the UNDRIP represents. This is not necessarily undesirable because the rights articulated in the UNDRIP are more likely to represent or become customary international law norms if they enjoy consensus from states. However, it is critical for indigenous peoples to always recognize that the UNDRIP represents a minimum standard of treatment. It appears the international law of self-determination and territorial integrity may have surpassed this minimum standard of treatment.

The Court ultimately concluded that Declarations of Independence are not contrary to general international law. Of course, seeking recognition as a state from other states is ultimately a political exercise. The Kosovo Reference; however, is very clear that there is no legal bar to unilateral declarations of independence.

While the Court did not address the particulars of whether an indigenous people could unilaterally secede from a state (or declare that they have always been independent), the Kosovo Reference opens up some interesting possibilities on this front. While I am under no illusion that issuing a Declaration of Independence would result in immediate (or easy) recognition of a right of self-determination, there are a number of indigenous peoples who continue their longstanding position that they remain independent of the state. The Kosovo Reference lends legal support to their position.

Moreover, it improves the position of all indigenous peoples when some adopt a more ‘extreme’ position because it reminds all actors that documents such as the UNDRIP are not endpoints, but rather compromise documents (which, in the case of the UNDRIP enjoy consensus support from states).

The surprising Behn decision

So the Supreme Court finally released its reasons in Moulton v. Behn. I have to admit, the outcome didn’t really surprise me, although the reasons were a bit shocking.

I’ve been through various aspects of this case in previous postings, and I do think it presents a bit of a minefield for the Court. The core issue, in my mind, is whether the Behns have sufficient juridical personality to assert treaty rights, or whether a First Nation claimant can ever really be the only holder of treaty or aboriginal rights.

The Court had all kinds of precedent and a sufficient policy basis to support a holding that only Indian Act councils, or other aboriginal governments recognized as decision-making authorities through Parliamentary legislation, can claim or assert rights (say, Davey v. Isaac, http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/4351/index.do, Logan v. Styres, http://gsdl.ubcic.bc.ca/collect/firstna1/archives/HASH4dc3.dir/doc.pdf). I had figured that the Court might limit its holding just to applications relevant to the duty to consult. This was not the direction the Court went in Behn.

Incidentally, I am aware there are a number of cases that support this proposition better than Logan v. Styres, I just really appreciate the backstory on that case. Davey, by contrast, is an SCC case (albeit in my mind an outdated one) and would likely be considered as a binding precedent by most courts in Canada.

First, though it’ll be helpful to state the core holding of Behn. This is actually kind of important because this case is ripe to be over-read. The Supreme Court was clearly disturbed by the fact that the Behns resorted to self-help, that is, setting up a roadblock and coming to court (and challenging the issuance of a Crown permit) only when sued civilly by Moulton contracting.

For the SCC, this case is really about Access to Justice and Rule of Law. This is a remarkably crisp judgment, especially for an aboriginal rights case. I think the Court really wanted to get the point across that the appropriate action for rights-holders who are aggrieved is to turn to the courts before turning to direct action.

As a consequence, the Behns’ claims that the issuance of the permits as a defence to Moulton’s tort claim was tossed out as an abuse of process.

In other words, what this decision stands for is if anybody wants to challenge Crown acts or omissions, they have to challenge those acts or omissions in some kind of a timely fashion (and possibly directly). In a sense, I read Behn as following a string of cases on duty to consult calling for good faith from all parties, something that goes back to Halfway River (1999 BCCA 470 (CanLII)), a case which incidentally predates the Haida/Taku duty to consult and accommodate.

That’s a very important point for the Court to get across, and its one reason why defending the principle of Access to Justice, particularly for indigenous claimants, is extremely important. If claimants don’t have faith in the system, they won’t turn to the Courts at all, something which very nearly happened in this case.

This is a moderately surprising holding, only because the core issue in Behn was whether individuals or family units have the ability to assert treaty rights. Framed in this way, one would think it to be an uncontroversial proposition, I mean there are several examples of individuals who have successfully defended themselves from wildlife prosecutions using their treaty rights.

The Court’s analysis of the duty to consult focused on whether the Behns, as individuals, were authorized by to represent the Fort Nelson First Nation for the purposes of the duty to consult. I think this skirts the question of why FNFN as a legitimate rights holder rather than the Behns? Aboriginal rights derive from practices which pre-exist contact with Europeans. I really don’t like that formulation, nor do I like much of the jurisprudence, which supports it because I find it unprincipled.

These issues of juridical personality (or standing) and aboriginal rights is a good example. If aboriginal rights derive from pre-existing practices and if First Nations are creations of a statute (which suggests First Nations themselves didn’t come into existence until after contact with Europeans), then are First Nations supposed to claim rights?

This is likely to be a blockbuster legal issue if aboriginal rights jurisprudence ever evolves beyond indigenous consumption of natural resources (hunting, trapping, fishing, etc) into issues more akin to actual collective rights (like governance). While I have my own ideas about how the law can recognize the successors-in-interest to collective rights holders (we’ll call them indigenous nations for now), perhaps alongside First Nations, or in many cases as First Nations.

Credit the Court for staying away from this issue. Its not that the issue is unresolvable, its that an analysis could have consumed several hundred paragraphs. Even worse, such an analysis would have invariably distracted readers from the core point the Court is making in Behn.

The Supreme Court did note that “an Aboriginal group can authorize an individual or an organization to represent it for the purpose of asserting its s. 35 rights: see e.g. Komoyue Heritage Society v. British Columbia (Attorney General), 2006 BCSC 1517 (CanLII), 2006 BCSC 1517, 55 Admin. L.R. (4th) 236.” (at para 30).

This citation speaks to the paucity of decisions dealing with individual/collective aboriginal rights. I really wish the SCC had inserted a pinpoint because I didn’t read this decision to support this point. In fact, it kind of reads the opposite. For example, at para 54, the judge in Komoyue concludes, “Komoyue Heritage Society has no status to bring this petition either in its own right or as a representative petitioner.”

Why? Well, “since no alleged aboriginal rights could be transferred to the Komoyue Heritage Society by any members of the alleged Q-KFN or any of the alleged descendants of the signatories of the Queackar-Douglas Treaty, they are not a necessary party to this proceeding.” (at para 30). I’m not really familiar with Komoyue, but the parallels with some issue in the Kwicksutaineuk case (http://wp.me/p1AYud-1D) or the Spookw issue (c http://wp.me/p1AYud-X) lead me to believe that standing, identity of a proper rights holder, etc. are important issues which need clarification from the SCC.

Maybe not here (though aside from the abuse of process issue, Behn offered a pretty good opportunity to do so), though. I’m actually a bit happy the Court didn’t get into these issues in Behn, but instead delivered a focused judgment. Moreover, Kwicksutaineuk was denied leave to appeal to the SCC, so I’m not sure these issues are ‘important enough’ as yet. I am convinced; however, that they will be raised again.

And I’ll be curious to see how the Crown deals with them. For in Kwicksutaineuk, I have pointed out that it appears the federal Crown suggested the First Nation actually did lack the representivity to bring a claim (apparently without suggesting a principled framework against which to assess representivity – a pretty convenient position for the Crown). Yet in Behn, the court rejected the Crown’s argument (I’m assuming this was the provincial Crown) a blanket requirement that treaty claims (and possibly aboriginal rights claims more generally) must be “brought by, or on behalf of, the Aboriginal community” (at para 33).

The Supreme Court’s assertion at paragraph 30 is, nonetheless, reasonable. It makes a great deal of sense that First Nations, Inuit or Metis could authorize individuals or bodies corporate to pursue claims on behalf of the rights holder. In fact, this happens all the time. One of my concerns about treaty rights in general is that the bargain appears to be about securing a release (hence, the cede, release, surrender language) from any claims a treaty group might make, while conveniently refusing to acknowledge whether those claims are valid, or indeed, whether those rights even exist! It’s a pretty convenient legal framework for the Crown to operate within because the Crown never needs to actually recognize any pre-existing rights.

Indeed, proceedings in aboriginal and treaty rights cases by way of representative actions are quite common – I imagine there is little caselaw in this area, though I note that Canada did everything it could to make this an issue in Kwicksutaineuk. The SCC in Behn appears to be receptive to the articulation of a principled framework to identify rights holders, at least in circumstances where there appears to be a dispute about the identity of the rights holder (or here, whether individuals can pursue the claim). While I’m not crazy about the framework offered in the Komoyue case, I’d also point out the SCC didn’t expressly adopt it – the court simply referred to the case as an example (and its much, much better than nothing).

The Court’s language at paragraph 30, using the term “Aboriginal group” instead of “First Nation” is slightly encouraging in this regard. Similarly the Court’s rejection of the Crown’s assertion that treaty rights claims can only be advanced by the community, at paragraph 33, is pretty encouraging (though again, I’m not sure about whether the Crown’s position(s) on this point were scrutinized, either).

The dicta in this case provides some degree of hope for a more principled articulation of identifying the proper rights holder, as well as for more critical thinking on what collective rights actually mean (sometimes I suspect the SCC simply stated aboriginal rights are collective rights without very much reflection on the mechanics of collective rights, nor of the consequences of making that statement). Such thinking is sorely needed, especially within the indigenous rights community, probably among the bench, and I would hope among the Crown(s).

In sum, this holding attempts to balance Access to Justice and Rule of Law considerations. These two foundational legal principles are mutually supportive. I find that the SCC may be making a genuine attempt to assert that aboriginal disputes should be resolved in courts – something I often don’t find in court statements.

I hope that is, in fact, where the Court is going in Behn. The core holding itself is relatively simple (which is to say good, because its easy to understand); however, the reality is that unless potential claimants have confidence in the legal system, they may be quite reluctant to take their disputes to court in the first place.

This is clearly already happening in some areas, and can only be combatted by ensuring Access to Justice for indigenous claimants, as well as ensuring Rule of Law (for example, by ensuring a court victory actually translates into some meaningful remedy).

That; however, is another matter for another day. And is, in my mind, the true question raised by the SCC in the Behn case – whether courts can articulate a principled framework for aboriginal law in which access to justice and rule of law considerations are complementary, rather than oppositional.

Ontario Court of Appeal doesn’t like the Keewatin two step

The case is Keewatin v. Ontario (Natural Resources) (http://canlii.ca/t/fwjp2). It’s a bit of a monster. The decision comes from the Ontario Court of Appeal. The plaintiffs succeeded at trial (http://canlii.ca/t/fmzc4), and defendants won on appeal. I believe the plaintiffs (Keewatin et al) have applied for leave to appeal to the Supreme Court of Canada. This is a pretty big case (both in terms of the principles at play and in terms of the sheer size of the decisions – at least the trial decision, that is). I’m not in the business of handicapping leave applications to the SCC, but some of the CA’s reasoning may make this case more likely, rather than less, to be heard by the Supreme Court.

I have several issues with the reasoning in this decision, but I must say I find the decision to be a bit stronger each time I go through it. I get the sense someone could probably attempt to teach a course on treaty rights, using this case as a model – and going through a bit of the trial or appellate reasons each class (I’m also not sure how wise that would be). This is reflected not so much by profound issues with the Court’s analysis, but with more abstract issues relating to how the Court has framed this case.

Irrespective, this entire case, and indeed, the Court of Appeal decision, specifically, is pretty damn interesting. Like William, this may require several posts to get through various aspects of the case. Also like William, I didn’t think the trial judgment, which I substantially agree with would make survive a trip to the appellate court.

Here, I’ll give a general introduction to the case.

It’s about ‘taking up’ – a phrase which has always confused me, (though I’m happy because the concept seems to confuse everyone according to the ONCA – which, incidentally, has only muddied the water more for me). Taking up is apparently when the Crown asserts proprietary rights OR jurisdiction over a given territory (leaving one to ask whether the ONCA thinks its even possible to assert jurisdiction over unceded lands? This is, admittedly, not as big an issue in Toronto as in, say BC, though such situations are not entirely absent in Ontario, either).

Essentially, the Court is being asked to answer two questions (helpfully repeated at paragraph 7 of the Court of Appeals judgment):

Question One: Does Her Majesty the Queen in Right of Ontario have the authority within that part of the lands subject to Treaty 3 that were added to Ontario in 1912, to exercise the right to “take up” tracts of land for forestry, within the meaning of Treaty 3, so as to limit the rights of the plaintiffs to hunt or fish as provided for in Treaty 3?

Question Two: If the answer to question/issue 1 is “no,” does Ontario have the authority pursuant to the division of powers between Parliament and the legislatures under the Constitution Act, 1867 to justifiably infringe the rights of the plaintiffs to hunt and fish as provided for in Treaty 3?

So then, this litigation turns on the relative authorities of Ontario and Canada with respect to Treaty 3. I think this is where the Ontario Court of Appeal decided to focus much of its efforts, and it could help explain how the Ontario Court of Appeal reached its conclusions. I won’t get into my thoughts on the second question here, except to say that I don’t really like it (I just don’t see what justifiable infringement has to do with interjurisdictional immunity – but unpacking both those terms requires a bit of space and to be fair, there is an alternative way of viewing this question which permits us to escape that question…possibly).

Treaty 3 contains a harvesting clause which states lands should not be taken up without the consent of the Canadian government, helpfully reproduced by the Court of Appeal at paragraph 8:

Her Majesty further agrees with Her said Indians, that they the said Indians shall have [the] right to pursue their avocations of hunting and fishing throughout the tract surrendered as hereinbefore described subject to such regulations as may from time to time be made by Her Government of Her Dominion of Canada and saving and excepting such tracts as may, from time to time, be required or taken up for settlement, mining, lumbering or other purposes by Her said Government of the Dominion of Canada, or by any of the subjects thereof duly authorized therefor by the said Government.

The issue with this passage is this phrase, “taken up for settlement, mining, lumbering or other purposes by Her said Government of the Dominion of Canada”. This suggests that only the government of Canada has the power to ‘take up’ lands subject to Treaty 3. Presumably the federal government could take up lands for provincial purposes, which I believe is more or less where the trial judge went with this clause.

The trial judge suggested a ‘two step’ process for takings up – first that Ontario would need to seek authorization from the owner of the land, and second that Ontario would need to seek authorization from Canada before taking up any lands in the territory. The rationale for Canada’s approval, beyond the plain text of the harvesting clause, is that the honour of the Crown imposes a burden on Canada to ensure the treaty commitment is fulfilled. At least, that’s how I’d put it.

The trial decision is quite lengthy, and I won’t analyse it at any length here – in fact, I’m not even particularly concerned with the evidentiary principles at dispute at the ONCA. What I would state is this case follows a disturbing trend in aboriginal law of absolutely no deference to the initial fact finder (here, a trial judge). In general (but not exclusively) appellate courts defer to a trial judge’s factual findings, as well as the statements of claim and defences filed by the Parties – rather they review the law and the legal principles as applied by the trial judge.

It is a relatively extraordinary circumstance when an appellate court reverses a trial judge on findings of fact, rather than findings of law. Except in aboriginal law. This case is notable because the Court of Appeal goes out of its way to stress its issues with the trial judge’s characterization of the facts. It is extraordinary because the Court of Appeal identified profound defects (in its mind) in the trial judge’s analysis of the law and even identified an alternative legal analysis and alternative principles to guide its conclusion. Yet, this focus on the facts of the case remains.

So the claimants in the Keewatin case are claiming that lands were never properly taken up by Ontario, and further that attempts to develop those lands, in this case through forestry licenses, are invalid. Let’s be clear about one thing at the outset – this is not a duty to consult case. Claimants aren’t even suggesting they should have been consulted about the licenses, rather they are suggesting that Ontario is incapable of issuing the licenses in the first place.

The Ontario Court of Appeal roundly rejected the findings of the trial judge – and particularly that ‘two step’ process for taking up. I get the sense the CA would have liked to go farther and dissect just about every paragraph of the trial decision, but blessedly reserved their reasoning to what they determined to be the key issues in dispute. Anyone who has read my post raging on findings in the alternative (link) will know I genuinely appreciate the Court’s forensic approach. These reasons deserve credit for being focused (“It is not necessary to answer Question Two.”).

One of my favorite lines in this judgment comes at para 88. The comment is offered gratuitously by the Court, and I’m not entirely sure why. It does reveal the extreme limitations of civil litigation and the asymmetries faced by aboriginal claimants when using a supposedly ‘fair’ civil litigation system. The Court points out “We note as well that the respondents did not raise any issue regarding Ontario’s ability to take up lands under Treaty 3 with federal authorization in their pleadings. Quite the contrary, in discovery admissions that were read in at trial respondents’ counsel stated that lands could be validly taken up under Treaty 3 if federal authorization were in place.”

This reminds me of Lax Kw’alaams (a case where the Supreme Court adopted a harsh position on dealing with aboriginal claims in civil litigation, particularly the process of amending pleadings – incidentally, I did like aspects of Lax: http://wp.me/p1AYud-M), and represents the kind of harshness I was worried about in that case. You start civil litigation by issuing a statement of claim. The statement of claim contains your pleadings. At this point, you haven’t received anything back in the form of a statement of defence, no evidence, no discovery (a process where one ‘discovers’ evidence, and probably very nice fees as well – discovery can be pricey and lengthy) and certainly no actual legal argument.

So it seems odd for the Court to cite all the way back to the pleadings here. Although, I should point out that plaintiffs can and often do change their pleadings throughout the course of litigation. I’m not sure plaintiffs here would have had the ability to change their pleadings after the decision of the trial judge (did I mention this is only one phase of this case? It’s only a resolution of a preliminary question in order to expedite the case itself! So there’s presumably plenty of litigation left).

Here’s my problem with this paragraph. It would be like the Court of Appeal stating that Canada and Ontario shouldn’t really complain about a ‘two step’ process because they didn’t specifically deny that in their statements of defence. That they didn’t know about such a two-step process (it was formulated by the trial judge) is really their own problem – a harsh outcome that aboriginal claimants do actually face from time to time (and would here, though, thankfully, the Court pointed out this pleadings defect somewhat gratuitously). What makes it harsh is that kind of remark is rarely directed at the Crown defendant, and certainly wasn’t here.

I’m not sufficiently familiar with this case to know exactly how many of these issues sprang up in the course of the trial decision, or for that matter at oral arguments. I have noted that Courts, particularly appellate courts (including the SCC) can display a disturbing tendency to wander all over the place in their analyses (for example on ‘defining the right’) on some of these cases – to the point that I wonder whether the claimants are getting a resolution of the disputes they brought into court.

In essence, the Court of Appeal held that Ontario doesn’t need federal approval to ‘take up’ lands within the claim area. The Court of Appeal reasons that Ontario had complete ownership of the lands in the claim area (it’s a bit fuzzy to me whether Ontario’s ownership, in this Court’s view, is affected in any way by the Treaty, but it strikes me that it is).

This is not necessarily an unduly harsh conclusion – the Court of Appeal appears to have held that Ontario now holds the treaty obligation, rather than Canada (I think, this is one point I’m not too sure on, and actually need to read the judgment a few more times). I think it follows pretty closely from the way I think the Court of Appeal has framed this case. In my next post, I’ll get into why that casting of this case, as well as a good chunk of the law cited by the CA deserves some critical examination and scrutiny.