A reconciliation project

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

WHY RIGHTS MATTER

I have been gone for quite some time. In my absence the Supreme Court issued two major, and in my mind thoughtful, decisions in both the Tsilhqot’in and Grassy Narrows case. While I would love to delve further into these cases, I first wanted to issue a post on why rights discourse is important.

For some reason, I am often confronted by those who suggest my proclivity for rights-based arguments is unreasonable – that there are ‘many problems’ facing First Nations (and indigenous peoples more broadly), and that everyone’s efforts should be focused mainly on poverty alleviation as a first step, rather than ‘esoteric’ rights advocacy.

This post is about why rights matter. It’s a pretty incomplete argument.

I don’t think that anyone denies that indigenous peoples face a multitude of economic and social challenges – those that do can be confronted with volumes of statistics articulating the ‘gap’ between indigenous peoples and non-indigenous peoples in Canada. Even more shocking to me is the data gap itself – in many cases, there isn’t even data on social or economic conditions of aboriginal peoples to compare to the general population.

The government response to the identification of such gaps is often to stress the supposed truckloads of money expended on the welfare of aboriginal peoples.

Increasingly, advocates are challenging these representations by comparing funding for services for aboriginal persons, as opposed to amounts of funding provided to the general population. Perhaps not surprisingly, as there is a gap in outcome, so too there is a gap in funding for programs (particularly infrastructure, child and family services and education).

Working in aboriginal advocacy, one common refrain I hear from government is that although a tremendous gap exists, and although there may (no good government rep would acknowledge discriminatory treatment in funding) be some funding disparities, ‘we all know that money won’t solve everything’. I’ve even been told that ‘money won’t solve anything’.

I don’t necessarily disagree, I don’t think money solves everything. The government is in the business of printing it. If money solved everything and if government actually cared at all about indigenous peoples (which I think it does), then it could simply print more and more money to resolve those problems (setting aside minor issues regarding inflation and money supply, etc).

What’s the point of having money if you can’t spend it? Or alternatively, what’s the point of having money if you can only spend it they way someone else tells you to spend it?

That’s the real issue that rights advocacy addresses: control. While focusing on economic development is great, in absence of any sense of indigenous control of indigenous resources or economies, all of those gains are remarkably vulnerable to taxation (believe it or not), government regulation or government interference.

The issue isn’t only about inadequate resources, its about inadequate control. That’s not just in the present, but can be an ongoing concern. For example, if a particular business model results in prosperity for indigenous businesses, it is often the case that the government will intervene, quickly and harshly, to ‘regulate’ that ‘industry’.

To some extent, this is what occurred with the proliferation of casinos in the United States (in my mind, an already dubious economic proposition). In Canada, government efforts to regulate on-reserve cigarette production has moved beyond economic regulation and taxation to outright criminalization of the industry. I can only imagine how much those involved in the First Nations cigarette industry have an appreciation for rights discourse. They have witnessed the impact of government reaction to indigenous prosperity.

This government repealed a longstanding exemption of the Indian Act from scrutiny under the Canadian Human Rights Act. Want to guess what the first case heard by the Canadian Human Rights Tribunal involved? It didn’t have anything to do with gender discrimination, housing lists, access to services or even any operation of a First Nation government. It had to do with Economic Development.

The Beattie complaint (http://canlii.ca/t/2fgnd) involved a pretty unreasonable and inexplicable interference in the business affairs of a First Nations businessperson. The problem, so far as I could tell, is that because a proposed lease transaction was beyond the understanding of a government employee, the government refused to approve the transaction (as required under the Indian Act).

The Canadian Human Rights Tribunal, invoking the human rights of the complainant, required the Department to reconsider the lease and to substantially reform its policy for approving leases. In other words, if someone holds an on-reserve property interest (which is presumably worth something), they should be free to manage that interest how they want, particularly when it comes to entering into commercial transactions.

Its really not that different than being able to freely manage and dispose of one’s wealth in a way they choose. That’s not a matter of a ‘business case’ for recognition and implementation of rights: it’s more along the lines of there can be no ‘business case’ in absence of strong advocacy supporting recognition and implementation of rights. I suspect that those who are most successful in community-based businesses are likely the most likely to see this (though, to be fair, I’m not a business person)

Rights advocacy is important because it allows indigenous peoples a vehicle to seize control of our economic, environmental, social and cultural futures. Rather than focussing on creating incentives for other parties (business, government, NGOs) to support indigenous aspirations, rights advocacy is about shifting power to those who already have the strongest incentives to improve the lives of indigenous peoples – indigenous peoples themselves.

WHY RIGHTS MATTER

I have been gone for quite some time. In my absence the Supreme Court issued two major, and in my mind thoughtful, decisions in both the Tsilhqot’in and Grassy Narrows case. While I would love to delve further into these cases, I first wanted to issue a post on why rights discourse is important.

For some reason, I am often confronted by those who suggest my proclivity for rights-based arguments is unreasonable – that there are ‘many problems’ facing First Nations (and indigenous peoples more broadly), and that everyone’s efforts should be focused mainly on poverty alleviation as a first step, rather than ‘esoteric’ rights advocacy.

This post is about why rights matter. It’s a pretty incomplete argument.

I don’t think that anyone denies that indigenous peoples face a multitude of economic and social challenges – those that do can be confronted with volumes of statistics articulating the ‘gap’ between indigenous peoples and non-indigenous peoples in Canada. Even more shocking to me is the data gap itself – in many cases, there isn’t even data on social or economic conditions of aboriginal peoples to compare to the general population.

The government response to the identification of such gaps is often to stress the supposed truckloads of money expended on the welfare of aboriginal peoples.

Increasingly, advocates are challenging these representations by comparing funding for services for aboriginal persons, as opposed to amounts of funding provided to the general population. Perhaps not surprisingly, as there is a gap in outcome, so too there is a gap in funding for programs (particularly infrastructure, child and family services and education).

Working in aboriginal advocacy, one common refrain I hear from government is that although a tremendous gap exists, and although there may (no good government rep would acknowledge discriminatory treatment in funding) be some funding disparities, ‘we all know that money won’t solve everything’. I’ve even been told that ‘money won’t solve anything’.

I don’t necessarily disagree, I don’t think money solves everything. The government is in the business of printing it. If money solved everything and if government actually cared at all about indigenous peoples (which I think it does), then it could simply print more and more money to resolve those problems (setting aside minor issues regarding inflation and money supply, etc).

What’s the point of having money if you can’t spend it? Or alternatively, what’s the point of having money if you can only spend it they way someone else tells you to spend it?

That’s the real issue that rights advocacy addresses: control. While focusing on economic development is great, in absence of any sense of indigenous control of indigenous resources or economies, all of those gains are remarkably vulnerable to taxation (believe it or not), government regulation or government interference.

The issue isn’t only about inadequate resources, its about inadequate control. That’s not just in the present, but can be an ongoing concern. For example, if a particular business model results in prosperity for indigenous businesses, it is often the case that the government will intervene, quickly and harshly, to ‘regulate’ that ‘industry’.

To some extent, this is what occurred with the proliferation of casinos in the United States (in my mind, an already dubious economic proposition). In Canada, government efforts to regulate on-reserve cigarette production has moved beyond economic regulation and taxation to outright criminalization of the industry. I can only imagine how much those involved in the First Nations cigarette industry have an appreciation for rights discourse. They have witnessed the impact of government reaction to indigenous prosperity.

This government repealed a longstanding exemption of the Indian Act from scrutiny under the Canadian Human Rights Act. Want to guess what the first case heard by the Canadian Human Rights Tribunal involved? It didn’t have anything to do with gender discrimination, housing lists, access to services or even any operation of a First Nation government. It had to do with Economic Development.

The Beattie complaint (http://canlii.ca/t/2fgnd) involved a pretty unreasonable and inexplicable interference in the business affairs of a First Nations businessperson. The problem, so far as I could tell, is that because a proposed lease transaction was beyond the understanding of a government employee, the government refused to approve the transaction (as required under the Indian Act).

The Canadian Human Rights Tribunal, invoking the human rights of the complainant, required the Department to reconsider the lease and to substantially reform its policy for approving leases. In other words, if someone holds an on-reserve property interest (which is presumably worth something), they should be free to manage that interest how they want, particularly when it comes to entering into commercial transactions.

Its really not that different than being able to freely manage and dispose of one’s wealth in a way they choose. That’s not a matter of a ‘business case’ for recognition and implementation of rights: it’s more along the lines of there can be no ‘business case’ in absence of strong advocacy supporting recognition and implementation of rights. I suspect that those who are most successful in community-based businesses are likely the most likely to see this (though, to be fair, I’m not a business person)

Rights advocacy is important because it allows indigenous peoples a vehicle to seize control of our economic, environmental, social and cultural futures. Rather than focussing on creating incentives for other parties (business, government, NGOs) to support indigenous aspirations, rights advocacy is about shifting power to those who already have the strongest incentives to improve the lives of indigenous peoples – indigenous peoples themselves.

Canada’s Invisible Problem

UNICEF released a report this week, titled Children of the Recession, which asserts that Canada has fared relatively well in reducing child poverty, despite the ‘Great Recession’. What Canadians should be more troubled by is what the numbers don’t show.

One of the key measures relied upon by UNICEF is the low income cutoff measure. This number is based on survey data which excludes information from First Nations reserves.

Thus, while the gains cited by UNICEF are quite real, those gains omit any information regarding one of Canada’s most marginalized groups of children, First Nations children located on reserve.

To be clear, this is not a problem unique to the UNICEF report. The invisibility of First Nations on reserve has dramatic impacts across the public policy spectrum. Last week, it was revealed that temporary foreign workers are being employed on an Alberta reserve, which has a staggeringly high unemployment rate. How does this happen? First Nations unemployment statistics are not included in Employment and Social Development’s calculation of the regional unemployment rate because ESDC does not collect data on-reserve. Hence, regional unemployment rates near, or on, First Nations reserves appear to be artificially low.

Nor is the problem of invisibility limited to employment statistics. Our sisters, mothers, grandmothers and aunts remain Canada’s invisible victims. While the RCMP finally released a report last year, titled Missing and Murdered Aboriginal Women: A National Operational Overview, which confirmed what activists have been saying for years – that aboriginal women go missing and are murdered at alarming rates in this country. Yet, action to address Canada’s invisible victims remains elusive.

Two weeks ago, Canada even attempted to extend the invisibility of aboriginal peoples as ‘peoples’ in international negotiations. Despite the fact that the Constitution of Canada recognizes First Nations, Inuit and Metis as peoples, aboriginal peoples attempting to claim rights must demonstrate they are legitimate peoples in court and many First Nations citizens must prove their lineages in order to claim Indian status. The struggle for recognition is quite real.

The invisibility of First Nations children is a moral, economic and human rights challenge for Canada. Services for Canada’s invisible children are dramatically underfunded in comparison to those who count – that is those children who are counted. The invisibility of First Nations workers means devastation for reserve economies, and threatens a broader economy crippled by labour shortages. There is really only one place where many of these children and workers will eventually be counted – in prison and mortality statistics.

Canadians persistently hear calls for reconciliation between aboriginal peoples and Canada. We assert that there can be no reconciliation in the absence of meaningful recognition. That work cannot begin until Canada addresses the problem of invisibility of all aboriginal peoples.

Medical Experiments, Honouring the Apology and Crimes Against Humanity

Recent revelations about nutritional experiments in residential schools (here: http://www.cbc.ca/news/canada/nova-scotia/story/2013/07/17/mb-aboriginal-children-nutritional-experiments-reax-national.html).

These are matched with apparently well-known (not by me) experiments on tuberculosis (here: http://aptn.ca/pages/news/2013/07/24/first-nation-infants-subject-to-human-experimental-work-for-tb-vaccine-in-1930s-40s/) and apparently even ear infection medications (here: http://www.cbc.ca/news/canada/north/story/2013/08/08/tby-documents-show-kenora-residential-school-ear-experiments.html).

It is beginning to appear that indigenous children were involuntarily used in a range of medical experiments throughout the residential schools era. This probably shouldn’t come as a shock to anyone, including me, but it does.

Allegations that the federal government is not honoring the residential schools apology, or the Indian Residential Schools Settlement Agreement, among other things, by failing to turn over documents in an expeditious fashion, are generating a fair amount of outrage. I guess really on top of all these other revelations.

It should go without saying that failing to honor the Apology or the Agreement could be construed as a form of revictimization. What is one to do if they feel the Crown is not honoring the Apology or the Agreement?

An International Criminal Issue?

I have written in a past post on genocide (here: http://wp.me/s1AYud-genocide) that if people believe that they have evidence of an international crime, that they should action it. I also wrote that the Agreement, and the Truth and Reconciliation Commission, could be considered important forms of redress (or not, I mean, how does one redress genocide – it’s a big question).

So here I’ll delve into a couple of possible tactics to seek investigation or redress for Canada’s actions during the residential schools era. The first option would be to complain to the International Criminal Court. I am most certainly not an expert in International Criminal Law.

However, it seems very likely that residential schools era fulfilled the technical requirements for genocide (detailed in my earlier post) or at least crimes against humanity. One issue with genocide, as I understand it, is intent. While I have reservations about whether the requisite intent existed, I have heard plenty of assertions of what several government officials said about residential schools policy and the Indian Act itself, which, if true, would likely demonstrate intent.

Crimes Against Humanity would seem even easier to demonstrate. Such Crimes are defined by Article 7 of the Rome Statute (http://untreaty.un.org/cod/icc/statute/romefra.htm) as “any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) Murder;

(b) Extermination;

(c) Enslavement;

(d) Deportation or forcible transfer of population;

(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

(f) Torture;

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

(i) Enforced disappearance of persons;

(j) The crime of apartheid;

(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. “

It would seem the residential schools era (not even just the schools themselves!) would fulfill several of these criteria. For real legal eagles out there, Article 7(2) provides slightly more clarification of some of these criteria. Though I’m no expert in this area of law, I understand the distinguishing (perhaps dominant) characteristic of Crimes Against Humanity are not so much any specific acts, but rather a consistent and widespread pattern of discrimination.

It would be rather fascinating to me to engage in a discussion over whether any contemporary practices of Canada fit into any of these criteria. I would think there are several possibilities which could be worth exploring – a valuable exercise to the extent one thinks that the socio-economic gaps between aboriginal peoples and non-native citizens are the result of deeply ingrained and widespread practices (though that pesky intent requirement likely remains).

I guess one could attempt to raise these issues with the Prosecutor of the International Criminal Court. One difficulty is the Rome Statute did not come into force until 2002 or so, and it is generally difficult to impugn violations of human rights which occurred prior to the coming into force of an international treaty. One might argue that by failing to investigate (by dragging its feet on disclosure of documents), Canada is actually engaged in a ‘continuing violation’ of human rights. The Prosecutor would be required to at least examine the merits of such a communication, and complainants could conceivably state as much to the press.

Kevin Jon Heller of the Opinio Juris Blog (an awesome blog, by the way) basically deconstructs such an argument here: http://opiniojuris.org/2007/08/06/icc-submissions-and-the-continuing-violation-non-doctrine/. In pretty devastating fashion. I think he’s right (not just because he actually knows something, quite a bit, about the ICC and I don’t) – international human rights law is a different animal than international criminal law. For example, in general, criminal law frowns on ‘retroactive application’ to events which predated promulgation of the law. For a host of good reasons.

Indeed, the Prosecutor’s own FAQs (hardly a legal authority, but I think its pretty persuasive) states, “The Prosecutor has jurisdiction only over crimes committed after 1 July 2002, when the Rome Statute entered into force.” (you can check it out here: http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/faq/Pages/faq.aspx).

This leads me to believe that trying to push a residential schools argument through the ICC would likely be perceived as an abuse of process.

Of course, contemporary situations are another matter entirely. To push these, one would need to make a good faith attempt to have such crimes prosecuted in Canada before approaching the ICC. And probably have a pretty solid record on the nature of those violations since 2002.

Notwithstanding the limitations of using the ICC for residential schools era crimes, it is incredibly helpful to think of and frame allegations of genocide in the context of internationally accepted definitions of the term – as well as in terms of crimes against humanity. The reason is that the Residential Schools Settlement, and the Truth and Reconciliation Commission, aren’t simply the outputs of a massive class action – they are linked to an international crime (albeit one apparently impossible to prosecute in the ICC).

Inter-American Commission on Human Rights

The jurisprudence of the Inter-American Commission and the Inter-American Court (Canada hasn’t ratified the American Convention on Human Rights, so don’t plan on going to the Court anytime soon) seem very friendly to indigenous peoples. Both the Commission and the Court have issued numerous and groundbreaking judgments related to indigenous rights and to practices of states, some of which could be characterized as international crimes (for example, massacres).

Residential Schools would likely offer the Inter-American Commission something it rarely sees – a massive, protracted (over decades), and mechanized (institutional) suite of policies and practices allegedly (I still haven’t seen this proof) put in place to ‘kill the Indian, save the child’. These policies and practices resulted in any number of violations of human rights (even by the ‘standards of the day’).

The crux of a case before the Inter-American Commission may not need to rest on the actual violations themselves, but rather on the state’s duty to investigate. One of the innovations (well, probably) of the Inter-American system is that states have a positive obligation to investigate violations of human rights. In the Moiwana case (http://www1.umn.edu/humanrts/iachr/C/124-ing.html): an interesting case for a few reasons. Mainly, I like it because it articulates a duty to investigate in a relevant context. However, a close reader will note that the massacre at issue in Moiwana occurred prior to the state ratification of the relevant Convention. The Court concluded (at para 39) that, “in the case of a continuing or permanent violation, which begins before the acceptance of the Court’s jurisdiction and persists even after that acceptance, the Tribunal is competent to examine the actions and omissions occurring subsequent to the recognition of jurisdiction, as well as their respective effects.”

Moiwana may not be the foundational case in terms of the duty to investigate, or in terms of continuing violations, but it provides pretty solid statements on both issues.

The case articulates two principles. First, in the face of allegations of human rights violations, states are obligated to investigate and prosecute the violators. Second, that violations which had commenced prior to the state’s assumption of international obligations are subject to this duty to investigate. Indeed, under the Inter-American system, states may even have an obligation to provide redress for violations which occurred prior to accepting international obligations which are of a continuing or permanent nature.

Where the International Criminal Court likely lacks jurisdiction, it appears the Inter-American may be positioned to consider allegations that Canada is not investigating claims of medical experimentation (or, for that matter, other claims). Even better, the Inter-American Commission on Human Rights offers dispute resolution procedures which, at least, lead to facilitated dialogue between the state and the petitioners.

Given that there exists a live dispute over disclosure obligations, linked to a pretty comprehensive settlement agreement, it seems that the Inter-American Commission might well facilitate a friendly settlement – if nothing else to preserve the integrity of the residential schools agreement.

It is also possible that if the federal government has abandoned the residential schools agreement, admittedly an unlikely possibility (it is such a historic settlement), then the Inter-American Commission might be inclined to investigate the underlying violations which led to the settlement itself, in addition to Canada’s failure to investigate and remedy those violations.

An interesting possibility. Genocide and Crimes Against Humanity have been international crimes (and violations of international human rights) for decades. The difficulty indigenous rights advocates will encounter in actioning claims are primarily procedural. While this is frustrating, there are so many different procedures available to First Nations that one would think these issues could be raised in at least one of them. Canada’s failure to honour the residential schools apology and the settlement agreement may provide an opportunity to address broader issues with Canada regarding residential schools and the assimilation policies of Canada during the same era.

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.

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.

On Audits

I have written before about Attawapiskat First Nation and funding cuts (http://wp.me/p1AYud-V) and about consolidated funding agreements (http://wp.me/p1AYud-1M).

This post is a bit unusual, in that it raises no legal issues per se (but I’ll come back to that at the end), but demonstrates the relatively extreme amount of power that the government may exercise over First Nations – all through the power of “contract” (though we learned in the Attawapiskat case that a consolidated funding agreement is no ordinary contract).

Through these comprehensive agreements, in which the terms are effectively dictated to First Nations, AANDC is able to control what programs are delivered, how they are to be delivered and how results are to be reported under those programs. Doesn’t always (or often perhaps) leave a lot of room for local self-government, or more accurately, self-administration.

A more subtle point on such funding agreements is their length and complexity. The complexity of funding agreements means it can be very easy for First Nations to get ‘caught offside’ on some technical requirement (which may or may not be very important) and run afoul of its commitments.

The flip side of those funding arrangements is that it is also very easy for AANDC to run afoul of its responsibilities! When First Nations run afoul of their commitments, it is often raised by the department, and usually picked up by a number of press outlets as a ‘mismanagement’ or ‘corruption’ story. When the department runs afoul of its commitments (or is accused of sloppy administration), it is usually by the Auditor General, and similarly receives some degree of press coverage as an uncaring or incompetent department.

Audits are back in the news, it seems, as an audit, allegedly of Attawapiskat First Nation’s housing program, was leaked out recently. The release of this audit was accompanied by a series of relatively coherent lines alleging that the Audit concluded there is rampant mismanagement at Attawapiskat First Nation.

False.

This audit has nothing, or at best, very little to do with Attawapiskat’s actual finances. Page 2 outlines the scope of the audit. At no point does the “objective and scope” mention Attawapiskat First Nation. It does however state:

The objective of this internal audit was to “provide the Deputy Minister and Minister of AANDC with assurance that the AANDC management control framework in place was adequate and effective in ensuring compliance with Treasury Board and departmental policies and directives governing transfer payments and that AANDC monitoring, oversight, and reporting practices were effective and functioning as intended.”

Moreover, the recommendations that the Audit makes are not directed at Attawapiskat First Nation, but rather at AANDC. Specifically:

The Audit and Evaluation Sector recommends that:
1. The Ministerial Loan Guarantee process should be reviewed, in consultation with CMHC, giving consideration to the following:
• Developing stricter enforcement practices with respect to eligibility requirements and taking remedial action with regard to non-compliance;
• Implementing practices to certify completion of housing units by a suitably qualified professional according to National Building Code of Canada standards or an accepted equivalent set of standards;
• Conducting a risk-based periodic review of First Nation inspection records; and,
• Developing formal practices (e.g. Memorandum of Understanding between AANDC and CMHC) to require that the results of CMHC Physical Condition Reviews and client visit reports be shared with AANDC as a mandatory requirement of the eligibility process.

2. The Capital Facilities and Maintenance (CFM) Program terms and conditions should be reviewed, giving consideration to the following:
• Including eligibility requirements which require demonstrated financial management capability with respect to the First Nation’s housing program (e.g. Replacement Reserve Account, collection practices, reliable housing reports);
• Adding the requirement that a separate Housing Authority be established as a CFM eligibility
requirement;
• Discontinuing the practice of allowing minor core capital to be used for the purposes of debt
repayment; and,
• Clarifying housing report definitions and developing housing performance indicators which can be used to assess maintenance needs and establish a baseline on which to measure ongoing
performance.

Given that the audit was directed at AANDC management control systems, rather than at Attawapiskat FIrst Nation, it is entirely possible that transactions which lacked documentation may not have been undocumented at all – just undocumented at AANDC!

To be fair, it is quite possible that Attawapiskat First Nation does have weak financial controls. And that the ‘undocumented transactions’ lack proper documentation both at AANDC and in the community. This audit; however, was focused on and made conclusions about AANDC’s financial controls. To the extent the press represents this audit concludes Attawapiskat First Nations actual finances are in disarray, they are misleading the public.

To me,this episode is less about a ‘smear’ campaign (though I can see how one could reach that conclusion) and more about the inability of AANDC – an entity which is large, sophisticated and dictates the ‘rules of the game’ to First Nations, to manage increasingly unwieldy and complex financial arrangements. This case points to the growing need for genuine reform of administration, at the community, regional and national levels and in terms of financing, delivering and reporting on both funding and outcomes.

As is usually the case (whether AANDC or the Auditor General is doing the ‘accusing’), the need for administrative reform is going to be lost on politics — to my mind, the most unfortunate aspect related to the timing of this report’s release/leak. I don’t think AANDC is genuinely interesting in any meaningful reform (indeed, if administration is a problem at Attawapiskat, this report certainly doesn’t seem to be suggesting any community level solutions) and I certainly don’t believe Attawapiskat’s leadership, First Nations leadership or even First Nations grassroots are particularly interested, either (because they are consumed with the, I think reasonable, accusation this audit is being released as some kind of ‘smear’ to turn the press against Attawapiskat’s Chief).

And that’s really a shame.

Because the only serious indication I’ve seen that practice around funding agreements might change comes from the Attawapiskat case at the Federal Court, where the Court suggested that funding agreements may implicate the Honour of the Crown.

If First Nations Chiefs and AANDC officials can’t agree on how to meaningfully reform funding agreement policy, then it may be that the court’s may have to impose reform on them. It would be expensive, time consuming and uncomfortable – but it may be one of the few ways left to achieve progress in such a polarizing discussion (and an even more polarizing debate).

I’m sure many would prefer if reconciliation could be achieved through purely political processes (for a variety of reasons), but I think reconciliation can only work if courts are prepared to step into debates where political action and negotiation is unable to deliver any meaningful progress. But the alternative, at least on this issue, is no progress at all (and indeed, very little space for any reasoned debate).

Collective Rights

I’m reading a relatively good book by some guy Miodrag Jovanovic called Collective Rights: A Legal Theory (http://www.amazon.com/Collective-Rights-Miodrag-Jovanovi-263/dp/1107007380). If you don’t want to read the book, but want a 20 minute read on it (I really do recommend reading the book, though), Prof. Dwight Newman has issued a pretty damn good book review – available on SSRN (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2159894).

I really only read two books last year, the other being Karen Engle’s The Elusive Promise of Indigenous Development: Rights, Culture, Strategy (http://www.amazon.com/Elusive-Promise-Indigenous-Development-Strategy/dp/0822347695a). That, incidentally, is a must read if you work in indigenous rights advocacy. Possibly as well if you work in international human rights advocacy.

About the book
This is not a book review, so I’m not going to wade into Jovanovic’s arguments. I will offer that I find the work pretty compelling. Its not entirely convincing, and for me it raises several questions worthy of debate. For a book on legal theory, that’s about as good as it gets.

Collective Rights: A Legal Theory aspires to offer a coherent legal theory which explains what collective rights are and how they operate. This is a pretty important debate for indigenous peoples, as domestic and international courts, instruments such as the UN Declaration on the Rights of Indigenous Peoples, and a range of policy documents, many of which are advanced by indigenous peoples themselves.

However, at the point of implementation, courts, policy makers, and possibly indigenous peoples themselves grapple with what collective rights actually mean. This is particularly true where the spectre of conflict between individual rights and collective rights is raised – usually by opponents of collective rights and in some cases, any form of indigenous rights.

It is true that simply recognizing and affirming collective rights of indigenous peoples is the preferred way to proceed, but at some point, courts and policymakers will inevitably ‘wade in’ to the collective v. individual rights argument (especially when the argument itself is relatively trivial).

Why legal theory is important
Legal theory is perhaps one of the most important and underappreciated aspects of legal practice. It is rarely central to law school curricula, and most lawyers will likely tell you that legal theory has absolutely no relevance to their practice. This is probably true for those doing purely transactional (contracts, corporate due diligence etc) work that many lawyers aspire to spend their careers doing.

But for those working in law reform, legal theory is perhaps the single most important knowledge and skill set they will learn. Because legal theory is like the Force in Star Wars. It’s everywhere, but nobody can see it. A lot of people (in old school Star Wars) don’t even believe in it – or think its unimportant. But if you can learn to manipulate it, then you can do some pretty amazing things. Things, which to regular people in Star Wars appear to be impossible.

So it is with the law. Legal theory binds the rules and precedents of law together. It is everywhere in the law, even though legal theory is rarely expressly mentioned in judgments and probably never in legislation or regulation. Because legal theory is what ‘bind the law together’, though, it is incredibly helpful (with its dark-side cousin, ‘public policy’) to explain why longstanding legal rules require change. Or, more relevant to this discussion, how ‘new’ rules of law should be articulated and applied.

Why collective rights theory is important
Collective rights theory is particularly important for indigenous peoples right now. I’m actually shocked that with a large (compared to the past) and rapidly growing number of indigenous legal academics, very few (noone?) is actually doing serious work on this. The UNDRIP itself highlights this importance by explicitly articulating that several indigenous rights have both individual and collective dimensions. ‘Individual’ human rights are well understood, but the notion of collective human rights (or most collective rights) is not clearly understood by many. I’m not sure anyone understands how collective rights interact with individual rights, particularly in the indigenous context. Yet the silence from the Academy remains deafening (you may have already guess, but Jovanovic is not an indigenous legal scholar and did not focus this work on indigenous rights).

A theory of collective rights, which articulates what a collective right is, and how that right interacts with individual rights, would seem to be helpful in a number of other situations (outside those expressly mentioned in the UNDRIP). For example, s. 35(4) of Canada’s Constitution states that s. 35 rights are “guaranteed equally to male and female persons”. This seems to create a tension, within section 35 itself between collective aboriginal and treaty rights of aboriginal “peoples” and the individual rights of male and female “persons”, at least those related to gender equality.

A robust theory of collective rights might also assist indigenous peoples themselves, government negotiators and courts when attempting to determine the interaction of aboriginal title (which apparently includes reserve lands) and individual rights to property (not yet a constitutional right in Canada) – be they those of aboriginal ‘persons’ or non-aboriginal ‘persons’.

Again, the Act to repeal the exemption of the Indian Act from scrutiny under the Canadian Human Rights Act (http://laws-lois.justice.gc.ca/eng/AnnualStatutes/2008_30/page-1.html), which expanded the scope of the CHRA to a range of on-reserve issues, explicitly raises the need to balance “individual rights and interests against collective rights and interests”.

Without some kind of legal theory to explain how such balancing acts should occur, Canadian courts will simply develop a corpus of law based only on the facts of the cases brought before them, in the order they come. This is how the law works, and wouldn’t be a problem, except that it risks unprincipled development of the law. By that I mean it will be difficult, if not impossible, for First Nations, claimants and counsel to predict or determine whether their actions constitute a violation of the Canadian Human Rights Act, for example. This ‘chaos’ is easily avoided if a court can offer a principled vision of law when deciding cases. As much as I’m sure judges love to expound on legal theory and offer principles, its remarkably helpful for lawyers and especially the academy to help them out.

The other risk that unprincipled development of the law raises is the likelihood that a legal resolution which works in one case will create unintended consequences in many others. This is the ‘dark side’ of policy, though unintended consequences are usually explored by legal theorists (as Jovanovic). Courts; however, must decide on the cases in front of them. They cannot simply veer off on an exploration of policy implications (though I believe this happens with alarming frequency in aboriginal rights law and am quite critical of it). But litigants or amici (intervenors) can raise ‘unintended consequences’ arguments which may not influence the outcome of the case before the court, but allow the court to articulate rules which will guide the disposition of future cases.

These are important issues, which actually go to the core of the Crown’s (and probably the Court’s) reluctance to recognize rights of self-determination (or self-government, the two are quite distinct, but we like to jumble the concepts in Canada), aboriginal title, human rights and even treaty rights!

Collective Rights: A(nother) Legal Theory
Without getting into Jovanovic’s construct, I would note that this theory of collective rights follows a long and proud liberal tradition of starting with the individual and working out (Hobbes, Locke and possibly Bentham). I’ve never been a fan of this, and I’m not convinced that one must start with the presumption that individuals hold some rights and then ‘use’ those rights in some way to justify the existence of a collective right. This is despite the fact that this is the best explanation I have seen yet that follows this particular pattern.

If you’re educated in such matters, you may be suspicious of Hobbes and Locke (I don’t know so much about Bentham on indigenous issues) – and I’d say you should be. Why is another story for another day, but no friends of indigenous rights are these.

I think its folly to start with the individual. There are several reasons. But think about what a legal system actually is and how rights actually work. If you are in isolation, you can’t use rights for anything. In fact, I say you don’t have rights. The reason is that a legal system, and by extension rights, are essentially social constructs. By that I mean they can only exist if there is a group. One (The?) major function of a legal system is to provide order. Well, you don’t need order if you are alone, order is only necessary in a social situation.
I go so far as to suggest that rights can only exist where there some kind of a legal system (there are no rights in anarchy) – and I do believe that the international human rights regime is a global legal system – and has been for quite some time (longer than many others, I think).

I suggest it is not the collective right which must be ‘constructed’ from individual rights and interests, but rather it is the other way around! In other words, I say all individual rights and interests are derivative of some collective right or interest. We think of individual freedom and liberty as paramount because, I say, we have been brainwashed to think such things are paramount – they haven’t always been, even in cultures which had otherwise valid legal systems. We like them, indeed we prize them and value them so highly (like “democracy”) because we believe they are necessary to the types of collectives (i.e. governments, legal systems and societies) we prize and value. In fact, such rights are necessary for effective democracies (the flavour of our current century, but we are not far removed from ‘monarchy’ and ‘feudalism’)

And since I work in indigenous rights, I say those collective rights and interests are defined by reference to those indigenous nations which pre-dated European contact, those formed freely after European contact (as nations, confederacies and peoples were legitimately formed or altered in the colonial period, and continue to be today), or those formed freely by Europeans or others (giving rise to ‘states’).

And what do I mean by ‘formed freely’? What constitutes sufficient connection to be termed an indigenous people? Well, that’s a topic for some other time, but I would note these are issues the law of self-determination addresses.

My only claim here is one could construct a theory of collective/individual rights in which individual rights are derivative of collective rights – it doesn’t have to be the other way around.

In closing, I’ll again recommend the book Collective Rights: A Legal Theory, commend those who are already working on development of a legal theory of collective rights, and encourage the indigenous academy to focus on some of these issues in 2013.