A reconciliation project

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

Month: September, 2015

Keewatin and Inter-Jurisdictional Immunity

I never wrote anything about the two landmark decisions from the Supreme Court of Canada last year – despite the fact I wrote several posts about each, as they were working their way up on appeal. And while I have a lot to say about each of them, I figured I’d just drop a quick note about the Keewatin, aka Grassy Narrows opinion (http://www.canlii.org/en/ca/scc/doc/2014/2014scc48/2014scc48.html?autocompleteStr=grassy%20nar&autocompletePos=1).

At the outset, I have a much rosier view of this case than most people. Right out of the gate, the decision is a clear loss for the First Nation and it completely overturned the Court’s existing caselaw on treaty rights and interjurisdictional immunity (IJI). I also should say I more or less agreed with the trial judge and thought the Ontario Court of Appeal decision was horrible. It was. Notwithstanding my views on the merits, I hoped and fully expected that the SCC would do ‘something’ about IJI in these cases.

First and foremost, and I really can’t stress this enough, the case comes in at a thin 55 paragraphs. Compare that to Delgamuukw (209 paras), Van der Peet (322 paras) or even Tsilhqotin (153 paras, but pretty brief compared to an appellate decision of 346 paras and a trial decision consisting of a whopping 1382 paras). I’m a big fan of brevity because it seems to reduce the ambiguity in what the court is holding, and more important, why.

What is IJI (besides something which vexes law students)?

It’s about jurisdiction. Under the Constitution, there are some matters which are allocated to the provinces and some to the federal government. Those matters are mostly listed in sections 91 and 92 of the Constitution Act, 1867. IJI simply means that one level of government may not legislate on a topic allocated to the other level. Of course, all these areas are inter-related – so what you learn in law school is how to figure out when a level of government is meddling in another government’s jurisdiction.

As luck would have it, “Indians, and lands reserved for the Indians” is allocated to the federal legislature. What does that mean? It means if anyone can exercise legislative power over “Indians, and Lands reserved for the Indians”, it’s the federal Parliament – and only the federal Parliament. Any exercise of provincial legislative power which is held to be about “Indians, and Lands reserved for the Indians” is an illegal exercise of legislative power.

Think of IJI like an extremely blunt instrument because that’s exactly what it is. It’s like using a steamroller to crack open walnuts. There is no room in an IJI analysis for ‘cooperative federalism’ and no give and take – laws are simply valid or invalid. Most lawyers probably thought IJI was dead, or at least on its way out, in the wake of the Lafarge banking case (http://canlii.ca/t/1rmqz). That’s because they were reading quotes like this, “ For the reasons we gave in Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3, 2007 SCC 22 (CanLII), released concurrently, we agree with the approach outlined by the late Chief Justice Dickson in OPSEU v. Ontario (Attorney General), 1987 CanLII 71 (SCC), [1987] 2 S.C.R. 2, at p. 18, in which he characterized the arguments for interjurisdictional immunity as not particularly compelling, and concluded that they ran contrary to the “dominant tide” of Canadian constitutional jurisprudence.”

Neither of these cases mentioned a treaty rights case from just a year before, called R v. Morris (http://canlii.ca/t/1q64k). That case involved the successful application of IJI to a treaty hunting case, ousting provincial legislation which interfered with that treaty right.

At the time, I was completely confused by the 2007 banking cases. They seemed to suggest that IJI was all but dead, except in treaty rights cases, maybe. Morris wasn’t overruled in those cases, in fact it wasn’t even mentioned. This bothered me for quite some time, as its difficult to see why IJI should be preserved in the context of 91(24), and not anywhere else. To be really technical about it, even the distinctions where IJI is forcefully applied – or not applied at all – within 91(24) jurisprudence was already fairly unprincipled…and confusing.

There are those who would say that 91(24) offers First Nations rights ‘protection’. Remember that 91(24) is about jurisdiction: it’s not about whether the Crown can infringe on aboriginal rights, its about ‘which Crown’ (after this case, maybe ‘which government’) can infringe such rights. Section 35 and arguably some parts of the Charter are the constitutional provisions which offer protection for aboriginal and treaty rights. While I recognize there is a pretty steep conflict of interest for a province to be responsible for exploiting the same natural resources protected by treaty (of course, there’s also pretty strong incentives to be in treaty, as well), I’m not sure why that conflict shouldn’t be managed through the protections of s. 35, rather than the jurisdictional provision of 91(24).

And indeed, that’s exactly where the SCC went in both Tsilhqot’in and in Grassy Narrows. I’m well aware its an unpopular position to take, but I really don’t have much of a problem with that. In fact, I think the SCC really did First Nations, legislatures and the Crown a major favour by going in this direction. That’s despite my own caveats about First Nations jurisdiction (still invisible, and a major problem that it is).

Whether you like them or not (and I suspect on Grassy Narrows many fall into the ‘not’ group), the Court’s decisions in Tsilhqot’in and Grassy Narrows dramatically reshape the doctrine of interjurisdictional immunity. The Court noted that the Trial Judge in Tsilhqot’in relied on the Morris case, a case which came out before the Court’s decision in the banking cases. What they left out was it came out, like, months before those cases.

At this point, I might’ve been reading someone really just raging on the Court’s…erratic findings on IJI and section 35 rights. For example, at paragraph 138, the Court pointed out, “The ambiguous state of the jurisprudence has created unpredictability. It is clear that where valid federal law interferes with an Aboriginal or treaty right, the s. 35 Sparrow framework governs the law’s applicability. It is less clear, however, that it is so where valid provincial law interferes with an Aboriginal or treaty right. The jurisprudence leaves the following questions unanswered. Does interjurisdictional immunity prevent provincial governments from ever limiting Aboriginal rights even if a particular infringement would be justified under the Sparrow framework? Is provincial interference with Aboriginal rights treated differently than treaty rights? And, are commercial Aboriginal rights treated differently than non-commercial Aboriginal rights?“ The only thing missing was the once obligatory reference to s.88 of the Indian Act (don’t get me started).

It’s pretty gutsy and its pretty extreme for the Court to reflect on its own jurisprudence in this manner. It’s also pretty welcome, for my part, because it had been becoming increasingly difficult to make sense of IJI jurisprudence.

Even more interesting, the court picked up on the point that IJI is not about whether one may infringe a right, but rather about whom may infringe. Analogizing to Charter rights, the court noted section 35 rights “are held against government — they operate to prohibit certain types of regulation which governments could otherwise impose.

These limits have nothing to do with whether something lies at the core of the federal government’s powers.” (at para 142 of the Tsilhqot’in case). I have my own minor issue about this passage, basically wondering whether section 35 also requires certain types of Crown conduct. It clearly already does, in a range of circumstances.

The Court clarified the law around s.35 and IJI in pretty dramatic fashion. The court simply held “that the doctrine of interjurisdictional immunity should not be applied in cases where lands are held under Aboriginal title.”

Instead of worrying about whether the appropriate level of government is violating the rights of aboriginal peoples, the Court seems more interested in whether those rights are actually being violated. This eliminates a pretty powerful argument which First Nations have used to successfully strike down provincial laws, but it also means provinces have a much more central role to play in fulfilling the Crown’s treaty promises. I`ll expand on that in my next post.

How you can vote and sltill sleep at night

How you can vote and still sleep at night

This column is a response to Russell Diabo’s excellent and powerful commentary on why First Nations persons should not vote in the upcoming federal election (https://ricochet.media/en/534/first-nations-and-the-federal-election-an-exercise-in-self-termination) . In the end, I agree with Russ’s analysis and I’ll articulate why below. Before that, though, I think its worth pointing out that how people can justify taking a rights-based approach to First Nations issues, while still voting in federal elections.

It’s also a reaction to the shock and mild amusement I got from National Chief Perry Bellegarde calling for First Nations persons to vote in the upcoming federal election, while noting that he himself has never voted (http://www.cbc.ca/news/politics/canada-election-2015-assembly-first-nations-bellegarde-1.3212551). He cited a pretty extreme view of non-partisanship (even civil servants, who must be non-partisan, vote – though singing songs about it is a bit more of a grey area). This led me to a question: Can you vote, seek to advance indigenous rights and still sleep at night?

I see the law as little more than a series of discursive tools. And since I’m a serial contrarian, so I’ll take on the counterpoint – that it may be OK for some persons to vote.

At the outset, I will say that voting does require one to acknowledge one’s own Canadian citizenship. This is a bridge too far for a lot of persons and a lot of peoples. For example, particularly for some peoples, it can be very difficult to come up with a meaningful legal reason why indigenous peoples are subject to Canadian law. If you adhere to such arguments (which, again, are perfectly good), then I’m not sure it is possible for you to vote and still sleep at night.

Sovereignty does not need to be ‘zero sum’

The fundamental issue often raised by those who claim that First Nations persons shouldn’t vote is that in doing so, they are recognizing Canada’s sovereignty and implicitly, undermining the sovereignties of their own nations. This is a pretty powerful argument, especially to the extent indigenous peoples maintain and advance positions founded in sovereignty.

Does it undermine the sovereignty of one nation to participate in both its elections and in the elections of another nation? It seems some people object to voting in Canadian elections on the basis that it does. Is that assumption valid? It might help to look to examples in international practice to find out.

As luck would have it, there are likely thousands of persons in Canada and many thousands more worldwide, who find themselves in this very position. Dual citizens may already vote in multiple countries. Dual US-Canadian citizens, for example, can and do file absentee ballots to vote in US elections. In fact, some countries, such as Italy, have even built entire ‘overseas constituencies’, likely made up of some number of dual citizens! That means there is somebody sitting in the Italian Parliament right now, representing Italian citizens (including Italian-Canadian dual citizens) from the Americas.

Dual citizens of any combination of the United States, Italy, France and Canada (even with its new restrictions), as examples, are not any more or less loyal to their countries for voting in any elections (whether they are resident in a country or not). More important, it simply does not make a country less sovereign to allow dual citizens to vote.

What does this have to do with anything? Everything!

Say you are from an indigenous nation in treaty with Canada and you believe that treaty explicitly recognizes your nation’s sovereignty (it does, by the way), as well as Canada’s sovereignty. A true ‘nation-to-nation’ relationship, as contrasted to a purely domestic arrangement providing some degree of autonomy for your nation within a broader Canadian state (that might be called suzerainty, a term which is not in fashion these days). Well, then, you might consider yourself a dual citizen of your nation and of Canada – two equal and independent states, no different than being a dual citizen of Canada and, say, Italy.

All of a sudden, it might not look so bad to be voting. It doesn’t take anything away from your own nation’s sovereignty, and whatever happens in Canada’s elections, including how Canada itself deals with your nation, is probably quite relevant to you.

It’s quite true that the government of Canada, Canadian political elites and Canadian courts wouldn’t share these views. I’d say it’d even be a stretch to gain political or legal recognition out of the Canadian system (especially the political system) for meaningful autonomy.

And again, I have to stress that there exist indigenous peoples in North America who hold treaties which guarantee exactly the opposite: rather than integrating indigenous peoples into a broader sovereignty, they explicitly recognize that full indigenous sovereignty continues parallel to state sovereignty.  In fact, I could go so far as to suggest that persons from nations with such treaties could actually be violating their own treaty promises by voting in Canadian elections.

You’re already trying to influence Canadian politics

I really hate to break this to people, but a lot of us are already trying to influence Canadian law and policy. One pretty effective means for influencing law and policy in a democratic country is through electoral politics. Even some of those who are not voting are likely inclined to share their opinions regarding where Canada is getting it wrong.

For some, there is a world of difference between expressing your opinion, voting, providing money to a political party and joining a political party. Some of these, such as expressing an opinion, can be done by anyone. Voters have to be citizens (and possibly resident, I guess), I think only residents can donate and I have no idea what kind of restrictions there are on joining a political party. All of these activities rest on a spectrum of political engagement.

For others, these are all merely tactics on a spectrum of trying to influence a government – whether you see that government as foreign or domestic.

Other voters care what you think

I’m pretty sceptical of claims floating around that the First Nations vote could influence 51 ridings. Seems to assume all First Nations persons would vote strategically and all would vote for the same candidate. I think the number of ridings capable of being meaningful influenced, at least directly, by the First Nations vote, is much lower.

Even worse for all those supporting a particular party – the aboriginal MPs who won in the last election were split all across party lines. Which means if you’re thinking the aboriginal vote is going to oust the Conservatives, you may be mistaken. According to this article, 5 of the 7 aboriginal MPs elected in the 2011 federal election were from the Conservative Party http://www.thestar.com/news/canada/2011/05/03/7_aboriginal_mps_elected.html). Incidentally, I believe this past Parliament may have had more aboriginal MPs than any previous one. That should highlight the limits of relying only on electoral politics to advance change.

But First Nations, Inuit and Metis persons exercise considerable political influence in this country, not just because of the number of voters, but because other voters actually care about aboriginal issues – or at least what aboriginal persons think about other issues they care about. That may or may not influence individual voting choices, but it can have a pretty profound impact on public debate during the election period, which can actually translate into some kind of policy action in the ensuing government.

You don’t have to join a political party

Russ’s article is excellent in that it provides a very strong caution to those who think participating in elections is a particularly powerful tool to advance aboriginal rights. It isn’t. He tried that once, and did (I think) a pretty good job of influencing a party platform and raising the profile of aboriginal issues in electoral politics. I’d say he (and others, I should add) also did an excellent job of demonstrating the limits of electoral engagement.

I don’t think that experience is a reason not to vote, nor even not to join a political party and run for office. I do think that its extremely important to recognize there are some pretty severe limitations to relying on an electoral strategy to advance a rights agenda. I

This also seems to be a point that Pam Palmater makes at her indigenousnationhood blog (http://indigenousnationhood.blogspot.ca/2015/08/the-source-of-our-power-has-never-been.html

A Claim Delayed (in Alberta) is a Claim Denied. Period.

The case is Callihoo v Canada (http://canlii.ca/t/gjrhg). It’s hard for me to tell whether this is a test case or just an example of the Crown attempting to clear out some possibly vexatious litigation. It smells to me like a test case.

The heart of this very short decision is an attempt by Canada to invoke Rule 4.33 of the Alberta Rules of Civil Procedure. The rule more or less states that an action may be struck if there are no significant developments in the litigation in 3 years (The Court helpfully reproduces the rule at paragraph 20). I’m no expert in civil procedure – I know Ontario, for example, has a rule about delay, but that has substantially different criteria (meaning it’s a totally different rule in Ontario) than Alberta Rule 4.33.

First Nations litigation is often long, expensive and complex. I would expect that in most (in fact, in almost all) cases both First Nations and the Crown would consent to delays for any number of reasons. I mean, if I was asked for such consent, I would generally consider it professional courtesy to provide the consent. Unless I had reason (and pretty good reason, with some kind of evidence) for believing the delay was being requested in bad faith. The reason is I wouldn’t want to look like a jerk in front of the court for denying my colleagues the opportunity to put forward their best case. That reason, by the way, holds no matter which side of the aisle one is sitting on. And just to be clear, 4.33(1)(a) expressly allows counsel to consent to avoid a ‘dismissal for long delay’.

So when I saw this case, I had to assume there was some pretty egregious conduct – that is to say, some pretty extensive delay – which led to this motion. The record on First Nations actions (or lack thereof) to advance this case can be found at paragraph 8. There are two substantial points here.

First, the Court found that issuance of a Notice of Constitutional Question (NCQ) “is similar to a “housekeeping activity”” (para 34), meaning it does not significantly advance the action. Something for First Nations counsel pursuing cases in Alberta to keep in mind for the future.

Second, it seems clear that the First Nation changed counsel during the relevant time period. I suspect this isn’t uncommon and its really worth it for First Nations to consider how litigation is going to be managed if their counsel withdraw (or are fired, its unclear what happened here). The record notes that Counsel for the First Nation withdrew in December 2011. The next action noted in the record is one undertaken by one of the Plaintiffs themselves. This is important itself for two reasons.

First, change in counsel is one of those situations where one would reasonably assume that a delay is warranted (and grant consent). New counsel must familiarize themselves with the file and with the client (including client expectations). In a complex case (most First Nations cases are complex), this can take quite a bit of time. I’m actually a little bit surprised Canada didn’t grant consent – though it may be nobody asked for it.

The second point follows from the first. There is no record offered which identifies notice that new counsel had been retained by the First Nation. In fact, the NCQ was filed by the plaintiff. In other words, it looks like we may have an ‘self-represented plaintiff’ issue here. Self-represented (sometimes referred to as unrepresented) plaintiffs should flag a number of issues for attorneys and courts. One can’t assume that self-represented plaintiffs are familiar with the rules of civil procedure, with the relevant precedents or with the nuances of how to prosecute an action, generally. Indeed, many jurisdictions have specific rules of professional conduct specific to dealing with unrepresented parties.

Those rules don’t always apply to litigation.

Here, it seems pretty plain that the plaintiff wasn’t terribly sophisticated – the Court noted he served his NCQ on the wrong party (on the province, even though the province had been excused from the action).

But it just appears to be a pretty sharp (as in ‘sharp practice’) maneuver to proceed with by invoking Rule 4.33. While it might seem unfair, the Court pretty clearly outlined the harsh application of this rule in other circumstances (at paras 22 and 23). After a quick analysis of the Honour of the Crown as it relates to litigation (a mercifully quick analysis of this point at para 37), the Court dismissed the action (with costs!). It would’ve been nice to have the Court reflect on the merits of proceeding against an unrepresented plaintiff.

Having said that, it does appear that counsel was retained to deal with this motion, so this appears to have been an issue only during the 3-year time limit mandated by the Rule. The apparent ability of the plaintiffs to muster counsel to fight this motion, but not to move the action forward may be the reason costs were awarded here (I think its still a little harsh).

As I said at the outset, this reeks of a test case. The facts are particularly tilted in favor of the Crown. The Crown was facing (during the relevant time period) an apparently unsophisticated plaintiff (since they served the wrong ‘Party’) and the available precedents on the Rule suggest that dismissal is mandatory.

I’d really be curious to see whether federal Crown counsel facing civil litigation in Alberta courts start denying consent for cases in abeyance. It wouldn’t surprise me either way. If dealing with federal Crown attorneys, I wouldn’t expect any latitude for new counsel moving onto a case. Callihoo represents a pretty powerful tool in the arsenal of Crown defendants, at least in Alberta (as well as in whatever other jurisdictions have a ‘drop dead’ rule, similar to Rule 4.33)