The lengths the Crown will go to in order to avoid talking to First Nations

by reconciliationproject

The case is Matsqui First Nation v. Canada (http://canlii.ca/t/gklpc). The issue is how far will the federal Crown go to avoid having to actually discuss rights-based issues with First Nations? Actually, I think case better illustrates only one of many serious barriers to settlement which exist for First Nations claims.

This interim decision deals with a federal request to be excused from a court-ordered mediation process. The underlying claim seems relatively straightforward: it appears that Matsqui is seeking a declaration of an aboriginal right to fish; that the Crown was wrong to deny the Matsqui fishing licenses during one season; and damages. Damages may seem odd to some readers, though I would point out that the Sparrow case held that the availability of ‘fair compensation’ is relevant to a justification analysis.

Alternative dispute resolution options, including mediation, are often available in civil claims. I could write entire posts critiquing or supporting use of ADR and aboriginal claims (I mean, there was that experiment with the ICC), but I’ve never heard of anyone actually trying (not that I’ve been looking).

This case may help explain why its rare to hear about mediation in the context of civil claims.

Here, Matsqui served the Crown with a Notice to mediate. The Crown came back with an application for a court order to be excused from a mediation process. What I find so interesting about this case is that the rules require attendance of a “representative who must “have full authority to settle, or have access at the earliest practicable opportunity to a person who has … full authority to settle, on behalf of that participant”.” (paragraph 8, citing the BC Notice to Mediate (General) Regulation.

The Court’s decision was pretty straightforward. One may only be excused on a standard of ‘material impractibility’. The Court notes a similar test in the Alberta rules, Alberta caselaw on those rules and a BC government website to identify criteria for material impractibility and rules the mediation should proceed, effectively dismissing the Crown’s primary arguments.

What I find interesting here is less the Court’s decision (which was pretty straightforward in my view), but the Crown’s arguments.

It seems the Crown argued (all cited by the Court at paragraph 10) that:

· This is effectively a test case, and the Parties need a judicial precedent

· DFO lacks the appropriate mandate to resolve claims involving aboriginal rights

· There is a federal election underway, meaning there is nobody with “full authority to settle” and there won’t be, until after the trial date

The last argument is the most irritating to me, but let’s take them one at a time.

On the first point, it’s far from clear whether this a test case or not. We can thank 30 years of aboriginal rights jurisprudence for cementing site and species specificity to the point where any case could be considered a test case. In any event, I’m not sure why the precedential value of claim means it can’t be mediated. In fact, it strikes me that Matsqui would likely have more to gain from a precedent than the Crown. The Crown certainly suggests that such novel claims can’t be negotiated. Which, given the site and species specificity criteria noted above, means one should expect the Crown to litigate every aboriginal case, rather than seriously exploration negotiation or settlement options.

The second point is pretty telling for BC First Nations. I’m actually startled to read it, mainly because I’ve been looking closely at one of the Kwicksutaineuk (http://canlii.ca/t/frv2c) case this summer. In that case, the Crown actually relied on its mandate to deal with aboriginal rights claims to support a consultation process on aquaculture regulations. DFO is regularly in court with First Nations, but apparently lacks the authority to settle such claims?

Seems like some very fine splitting of hairs to me. DFO can certainly infringe aboriginal rights (see Sparrow) and it can accommodate unresolved aboriginal claims (see Kwicksutaineuk), but it can’t settle them? I guess that how things like this (http://www.hashilthsa.com/news/2013-03-15/dfo-continues-frustrate-ahousaht-will-fish-declares-tyee-maquinna) happen.

Moreover, I’m shocked the Crown had the guts to actually argue this. The case is styled Matsqui v. Canada (Attorney General). That’s not some kind of accident. The Crown’s obligations are not represented piecemeal by different departments, but by one entity, the Attorney General, in Court. As I say above, this is splitting hairs, but man, it’s splitting them really fine. I’m not so outraged about this argument, but I think its pretty foreboding for any First Nation dealing with DFO.

What I am outraged about is the third argument. This decision was released on August 7, 2015. A federal election was called on Sunday, August 1. Some the text in this article caught my eye (http://www.theglobeandmail.com/news/politics/harper-promises-apprenticeship-tax-credit-if-conservatives-re-elected/article25816853/) – the existence of a government memo, allegedly released August 2, which outlines what the government can and can’t do during an election.

This memo is actually a big deal since the government is currently negotiating a new climate change deal (likely to be unveiled in December) and a new Pacific trade deal. Since it’s hard to find, here’s a link to it (http://www.pco-bcp.gc.ca/index.asp?lang=eng&page=convention&doc=convention-eng.htm)

It’s a brief memo and well worth reading. As I read it, I don’t see anything which would prohibit ongoing negotiations to settle aboriginal rights claims (particularly where settlement of those claims are likely in the public interest, are probably pretty routine – since the government, though apparently not DFO, is involved in all kinds of negotiation with aboriginal peoples).

What’s outrageous is that unless arguments occurred the Sunday the election was called (this memo was apparently released the next business day, according to the Globe and Mail), the Crown was making arguments about government policy that directly contradicted a policy statement (assuming the policy statement I offer is actually legitimate).

Thankfully, the court was unpersuaded by these arguments – instead opting to school the Parties (and myself, for that matter) on mediation, blogged about over here: http://rulelaw.blogspot.ca/2015/08/mediation.html. It’s a good thing because in my view, there’s a pretty good case to be made that the Crown may have misled the Court (I suspect it was inadvertent) and at the very least adopted a position in court which is adverse to current government policy.

I should point out I really feel for the Crown counsel who argued this case. I strongly suspect the lawyer didn’t even know about that memorandum. It’s not exactly easy to find, and I wouldn’t have looked myself, but for the Globe and Mail’s reporting (in fact, I would assume everything stops for an election). It’s also true this ground was not at all central to the Crown’s arguments.

At the same time, these arguments highlight that the Crown perceives aboriginal disputes to have a fairly substantive political element – clearly one that lies beyond the reach of DFO. It also highlights, once again in my mind (look how long it takes to negotiate treaties and claims agreements versus international treaties), the extreme difficulties of negotiation to resolve disputes surrounding aboriginal rights.