I recently watched the Canadian Senate – a much maligned institution of late – hard at work.   In session, was the Senate Standing Committee on Aboriginal Peoples (APPA), which was only just established in 1990 after several generations of Canada’s interaction with Aboriginal Peoples post-Confederation in 1867, and many centuries of explorer and settler interaction with the land’s first inhabitants before that time.

 

Meeting on Wednesday, February 17, 2016,[1] and chaired by Dr. Lillian Eva Dyck, a Senator from Saskatchewan and a member of the Gordon First Nation,[2] the committee was engaged in an “Examination of federal government’s constitutional and legal responsibilities to Aboriginal Peoples,”[3] in the second of its 2 meetings on the subject.[4] That Wednesday’s witness list was highly impressive,[5] with equally impressive presentations and revelations of policy, procedure, and lived experience in practice.

 

 

ISSUES

Amongst the major topics discussed were the United States Western Hemisphere Travel Initiative (WHTI)[6] and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).[7] As a lawyer with legal work experience in both Canada and the United States, neither one of these instruments was new to me. However, a third – the Jay Treaty – actually was.

 

WHTI (Western Hemisphere Travel Initiative):

Initiated in 2 stages, first for air travel (effective from January, 2007) and then for travel by land and sea (effective from June, 2009), WHTI grew directly from some of the key recommendations of the 9/11 Commission and was codified in the Intelligence Reform and Terrorism Prevention Act of 2004.[8] WHTI mandates that all travelers to and from the United States who are citizens of Canada, Mexico, Bermuda, and the United States itself, have and present secure passports or other acceptable documentation proving identity (such as NEXUS Cards, Enhanced Driver’s Licenses, and the “in-Canada” Secure Certificate of Indian Status – but with caveats[9]), for such travel originating in the western hemisphere.[10]

 

UNDRIP (United Nations Declaration on the Rights of Indigenous Peoples):

As adopted by the General Assembly of the United Nations at its 107th plenary meeting on September 13, 2007, the United Nations Declaration on the Rights of Indigenous People (UNDRIP),[11] is “a comprehensive statement addressing the rights of indigenous peoples[12] (…) which “emphasizes the rights of indigenous peoples to maintain and strengthen their own institutions, cultures and traditions and to pursue their development in keeping with their own needs and aspirations.[13] Of current key relevance are Article 30[14] (territorial quiet enjoyment amidst planned military activities in the Arctic) and Article 36[15] (rights to societal cohesion and cultural vibrancy in a changing and more “bordered” world).

 

Article 30

  1. Military activities shall not take place in the lands or territories of indigenous peoples, unless justified by a relevant public interest or otherwise freely agreed with or requested by the indigenous peoples concerned.

 

  1. States shall undertake effective consultations with the indigenous peoples concerned, through appropriate procedures and in particular through their representative institutions, prior to using their lands or territories for military activities.[16]

 

Article 36

  1. Indigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders.

 

  1. States, in consultation and cooperation with indigenous peoples, shall take effective measures to facilitate the exercise and ensure the implementation of this right.[17]

 

Although UNDRIP is not binding International law, such declarations by the United Nations “represent the dynamic development of international legal norms and reflect the commitment of states to move in certain directions, abiding by certain principles.”[18] Indeed, the 1982 Canadian Charter of Rights and Freedoms, which enshrines at Article 35[19] a guarantee of the rights of Canada’s Indigenous Peoples, appears a step in the right direction ….. but then, there is that Jay Treaty …..

 

JAY TREATY:

With a short title in the name of its American lead negotiator, Chief Justice John Jay, and signed on November 19, 1794, this “Treaty of Amity, Commerce, and Navigation, Between His Britannic Majesty and The United States of America”, maintained U.S. neutrality and consolidated the peace between these two sovereign states that had remained shaky since the latter achieved its independence from the former.[20] The main contention with this Treaty cited by several of the First Nations witnesses appearing before the Senate Standing Committee on Aboriginal Peoples was that the Treaty rights to free passage of the persons and goods of Aboriginal peoples to and from the United States as guaranteed in Article 3,[21] only applied one way (to Canadians traveling to the United States which deems Canada’s recognized First Nations and Native Americans to be “American Indians” for purposes of the Treaty), but not to Americans traveling to Canada; even though many are also citizens of First Nations with lands, members, and long histories of travel, trading, and cultural interests and practice in both Canada and the United States. The fact that Canada can claim succession in interest to the rights and obligations of Great Britain viz-a-viz the United States, but deny recognition and ratification of the Jay Treaty, remains a contradiction.[22]

 

 

THE CORE POINT as REPEATED SORE POINT

As shown, there is still a major disconnect between policymaking, law enforcement, and true consideration of the status, needs, and special circumstances of the Aboriginal Peoples (as first inhabitants) of the American Continents (South America, North America,[23] and the Arctic into today’s Russia, as well as their relatives and trading partners in yesterday’s Russia, which today is Alaska.[24]

 

The WHTI seeks passports, but in Canada many Band members have Status Cards issued by the Bands with disparate membership rules and regulations. Besides which, while seeking to honour the terms of the Jay Treaty, the United States has no power to accord rights thereunder to the Inuit or Métis, as they are not “Indians” within the meaning of the Indian Act,[25] and several members will undoubtedly fall short of the 50% (“fifty percent”) bloodlines rule required for their unimpeded entry into the United States as “American Indians” under Jay Treaty terms.[26]

 

The UNDRIP lays-out norms of acceptable behavior towards indigenous peoples. However, there is a long history of past and continued unacceptable treatment across the length and breadth of both North America and South America, and the pointing fingers of blame keep wagging, but with no resolution. However, Canada’s recently-inaugurated Liberal government has made a stated[27] and demonstrated[28] commitment to a re-vamped relationship with Canada’s Aboriginal Peoples –including promised implementation of the UNDRIP,[29] and this has been noticed and warmly welcomed by the First Nations in both actions,[30] and words.[31]

 

Clearly then, the only way to conclusively move forwards, capitalize on this new energy, and solve the long and repeated lack of full consideration and consultation in policy-making,[32] treaty interpretation,[33] and policy implementation,[34] is certainly to work together, but perhaps it is time to do so within the context of a significant paradigm shift as I will now describe.

 

 

ONE PROPOSAL

I would propose that the new(er) national governments of North America work much more closely and in a far more collaborative and mutually respectful way, with the older and transnational Aboriginal residents of the continent who are impacted by their decisions, and who preceded them in time and space. I would propose a single, continental body with unequal representation of the newer (9 national “government” members) and the older (12 “aboriginal” members).

 

I would also propose, as the government members: 2 from each of Canada, Russia, the United States, and Mexico; with an additional Canadian member from Indian Oil and Gas Canada (IOGC) to sit on RICT.[35]

 

Inspired by the Senate Committee meeting to perform some research on individual memberships and geographic scopes of several First Nations and Aboriginal Peoples so as to better balance the interests of communities of all sizes, I would also propose as the aboriginal members: 4 from Canada, 5 from the United States, and 3 from Mexico. From Canada, one might invite representation from the Cree, Inuit, Métis, and Mohawk. From the United States, one might invite representation from the Cherokee, Chipewa, Choctaw, Navajo, and Sioux. And from Mexico, one might invite representation from the Apache, Maya, and Nahuatl.

 

With a rotating 5-month chairmanship/chairwomanship amongst the Aboriginal members only,[36] there would be full rotation every 60 months, or 5 years. Term limits of 5 years might also be applied to the aboriginal members, and term limits of 3 years for the government members; giving a joint turnover only once every 15 years, so that the entity would often have veteran Commissioners, but always a veteran staff.

 

Preferably based in Canada[37] due to those stated and demonstrated commitments earlier noted,[38] this “First Americans’ Continental Circle (or “Commission”) for Engagement, Enablement, Systems and Sustainability (FACES)”, as proposed, would also have and operate through 7 subcommittees, with potential Aboriginal (“a”) and government (“g”) Commissioner member numbers as follows:

 

CLNT: Culture, Language, Necessities of Life, and Tourism (2a/2g);

RICT: Resources, Industry, Commerce and Trade (1a/1g),

RINC: Restitution, Issues Management, Negotiations, and Consultations (1a/1g);

SASA: Studies, Administration, Statistics and Appointments (1a/2g);

SECO: Services to the Community, Education, Communications, and Outreach (1a/2g);

TIRA: Travel, Identification, Registration, and Access (1a/2g); and

TRLS: Treaty Right, Law, and Status (2a/2g).

 

 

ASSURANCES

Each of the Aboriginal Peoples and First Nations represented on the Commission has its own governance structures and systems that will in no way be replaced, pre-empted, or subsumed within the Commission. The old (and existing) paradigm of First Nations self-governance is for a one-on-one relationship with the Crown. However, this means that issues that may be common to several First Nations are still handled on a case-by-case basis, and severe inconsistencies have resulted. This new paradigm would serve to ensure that there is consistency of result through uniformity of buy-in and coordination of efforts – both among and between all participating national governments, and among and between all participating Aboriginal Peoples (whether actually present, or represented in interest).

 

Of course, this is merely proposed as a forum where everyone can get to and stay on the same page, and where platforms, positions, and policies common to some or all of the Aboriginal Peoples of North America can be formulated, put forward, and implemented, respectively. Furthermore, having grown up in diplomatic circles, I know that it is not uncommon for small pairs, groups, or teams to step aside and informally discuss other pressing issues of mutual interest to them in this convenient forum, such as ensuring peaceful Arctic exploration, navigation, and resource exploitation, or superpower politics in other parts of the globe, the details of which may not seem immediately relevant to the other Commissioners, but the solutions for which may well do all some lasting good in ensuring world peace.

 

These are just some thoughts spurred by a very informative Senate Committee meeting.

 

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Author:

Ekundayo George is a lawyer and sociologist. He has also taken courses in organizational and micro-organizational behavior, and gained significant experience in regulatory compliance, litigation, and business law and counseling. He is licensed to practice law in Ontario and Alberta, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America. See, for example: http://www.ogalaws.com. A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy; working with equal ease and effectiveness in his transitions to and from the public and private sectors. He is a published author on the National Security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal milieux.

Trained in Legal Project Management (and having organized and managed several complex projects before practicing law), Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant – sourcing, managing, and delivering on complex engagements with multiple stakeholders and multidisciplinary teams. Team consulting competencies include program investigation, sub-contracted procurement of personnel and materials, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, and other targeted engagements through tapping a highly-credentialed resource pool of contract professionals with several hundred years of combined expertise, in: Healthcare; Education & Training; Law & Regulation; Policy & Plans; Statistics, Economics, & Evaluations including feasibility studies; Infrastructure; and Information Technology/Information Systems (IT/IS) – also sometimes termed Information Communications Technologies (ICT). See, for example: http://www.simprime-ca.com.

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[1] Senate of Canada. Senate Committee on Aboriginal Peoples. Meeting schedule – Past Meetings. Visited March 4, 2016. Online:

<http://www.parl.gc.ca/sencommitteebusiness/Notice.aspx?parl=42&ses=1&comm_id=1001&Language=E&meeting_id=419810>

[2] Parliament of Canada. Members. Senator Biography. Lillian Eva Dyck. Visited March 4, 2016. Online: <http://www.parl.gc.ca/SenatorsBio/senator_biography.aspx?senator_id=2776&Language=E>

[3] Senate of Canada. Senate Committees. Senate Committee on Aboriginal Peoples meeting of Wednesday, February 17, 2016. Examination of federal government’s constitutional and legal responsibilities to Aboriginal Peoples. Visited March 4, 2016. Online: <http://www.parl.gc.ca/sencommitteebusiness/Notice.aspx?parl=42&ses=1&Language=E&comm_id=1001&meeting_id=419810>

[4] An additional meeting on this subject had just taken place on Tuesday, February 16, 2016, but with a different list of witnesses, being: Allan Clarke, Director General, Economic Research and Policy Development Branch, Lands and Economic Development (Indigenous and Northern Affairs Canada); Douglas Fairbairn, Legal Counsel (Department of Justice Canada); Claudia Ferland, Director General, Individual Affairs Branch, Resolution and Individual Affairs (Indigenous and Northern Affairs Canada); and Sheilagh Murphy, Assistant Deputy Minister, Lands and Economic Development (Indigenous and Northern Affairs Canada). See Senate of Canada. Senate Committees. Senate Committee on Aboriginal Peoples meeting of Tuesday, February 16, 2016. Examination of federal government’s constitutional and legal responsibilities to Aboriginal Peoples. Visited March 4, 2016. Online: <http://www.parl.gc.ca/sencommitteebusiness/Notice.aspx?parl=42&ses=1&Language=E&comm_id=1001&meeting_id=419796>

[5] Supra note 3. Listed as speakers, were: Grand Chief Abram Benedict (Mohawk Council of Akwesasne); Bill Erasmus, Regional Chief (Assembly of First Nations); Claudia Ferland, Director General, Individual Affairs Branch, Resolution and Individual Affairs (Indigenous and Northern Affairs Canada); Lisa Janes, Regional Director General, Northern Ontario Region (Canada Border Services Agency); David Millette, Director General, Negotiations – Central, Treaties and Aboriginal Government (Indigenous and Northern Affairs Canada); Rasennes Pembleton, Researcher, Aboriginal Rights and Research Office (Mohawk Council of Akwesasne); James W Ransom, Director of Tehotiienawakon (Mohawk Council of Akwesasne); and Joe Wild, Senior Assistant Deputy Minister, Treaties and Aboriginal Government (Indigenous and Northern Affairs Canada).

[6] United States Department of Homeland Security. Western Hemisphere Travel Initiative. Visited March 5, 2016. Online: <https://www.dhs.gov/western-hemisphere-travel-initiative>

[7] United Nations (UN). Declaration on the Rights of Indigenous Peoples. Visited March 5, 2016. Online: <http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf>

[8] United States Government Publishing Office (GPO). Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), Pub. L. 108–458—Dec. 17, 2004. Visited March 5, 2016. Online: <https://www.gpo.gov/fdsys/search/pagedetails.action?browsePath=108%2FPUBLIC%2F[400+-+499]&granuleId=&packageId=PLAW-108publ458&fromBrowse=true>

[9] Indigenous and Northern Affairs Canada (INAC) – formerly Aboriginal Affairs and Northern Development Canada (AANDC). Border Crossing. [emphasis added]. Visited March 5, 2016. Online: <http://www.aadnc-aandc.gc.ca/eng/1100100032380/1100100032381>

 

“AANDC is currently only issuing the in-Canada Secure Certificate of Indian Status. Until further notice, all applications for the border-crossing Secure Certificate of Indian Status will be converted to the in-Canada Secure Certificate of Indian Status. Individuals receiving a Secure Certificate of Indian Status will receive a letter providing this information.”

 

“For crossing the border into the United States (U.S.) via land ports of entry (which can include ferry and lake crossings), AANDC has been advised that, in the near term, U.S. border officials will accept both the SCIS and older Certificates of Indian Status as valid identity documents.

 

“The Government of Canada cautions individuals that the duration for the acceptance of these documents for border crossing purposes into the United States is entirely at the discretion of the U.S. Government. A list of documents approved for entering the United States can be found at Western Hemisphere Travel Initiative. Please note that travellers entering the United States by air continue to be required to present a valid passport or, in certain circumstances, a NEXUS card.”

 

“Please contact Passport Canada for information on passports and the Canada Border Services Agency for information on NEXUS cards.”

[10] Supra note 6.

[11] United Nations (UN). Declaration on the Rights of Indigenous Peoples. Visited March 5, 2016. Online: <http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf>

[12] United Nations (UN). Frequently Asked Questions on the Rights of Indigenous Peoples. What is the Declaration on the Rights of Indigenous Peoples? Visited March 5, 2016. Online. <http://www.un.org/esa/socdev/unpfii/documents/FAQsindigenousdeclaration.pdf>

[13] Id.

[14] Supra note 11, at Article 30.

[15] Supra note 11, at Article 36.

[16] Supra, note 14.

[17] Supra, note 15.

[18] United Nations (UN). Frequently Asked Questions on the Rights of Indigenous Peoples. Is the Declaration Legally Binding? Visited March 5, 2016. Online. <http://www.un.org/esa/socdev/unpfii/documents/FAQsindigenousdeclaration.pdf>

[19] Constitution of Canada. The Constitution Act, 1982, enacted as Schedule B to the Canada Act 1982 (UK), 1982, c 11Canada Act 1982 (the “Canada Act”). Visited March 5, 2016. Online: <http://laws-lois.justice.gc.ca/eng/Const/index.html>

 

Constitution act, 1982 –

PART II – RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA

 

Recognition of existing aboriginal and treaty rights

  1. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

 

Definition of “aboriginal peoples of Canada”

(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.

 

Land claims agreements

(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.

 

Aboriginal and treaty rights are guaranteed equally to both sexes

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons. (96)

 

Commitment to participation in constitutional conference

35.1 The government of Canada and the provincial governments are committed to the principle that, before any amendment is made to Class 24 of section 91 of the “Constitution Act, 1867”, to section 25 of this Act or to this Part,

(a) a constitutional conference that includes in its agenda an item relating to the proposed amendment, composed of the Prime Minister of Canada and the first ministers of the provinces, will be convened by the Prime Minister of Canada; and

(b) the Prime Minister of Canada will invite representatives of the aboriginal peoples of Canada to participate in the discussions on that item. (97)

[20] United States Department of State. Office of the Historian. Milestones 1784–1800. John Jay’s Treaty, 1794–95. Visited March 5, 2016. Online: <https://history.state.gov/milestones/1784-1800/jay-treaty>

[21] Yale Law School. Lillian Goldman Law Library. British-American Diplomacy. The Jay Treaty; November 19, 1794. [excerpt below with emphasis added]. Visited March 5, 2016. Online: <http://avalon.law.yale.edu/18th_century/jay.asp>

 

The Jay Treaty. Treaty of Amity, Commerce, and Navigation, signed at London November 19, 1794, with additional article Original in English. Submitted to the Senate June 8, Resolution of advice and consent, on condition, June 24, 1795. Ratified by the United States August 14, 1795. Ratified by Great Britain October 28, 1795. Ratifications exchanged at London October 28, 1795. Proclaimed February 29, 1796.

Treaty of Amity Commerce and Navigation, between His Britannick Majesty; and The United States of America, by Their President, with the advice and consent of Their Senate.

 

ARTICLE 3.

“It is agreed that it shall at all Times be free to His Majesty’s Subjects, and to the Citizens of the United States, and also to the Indians dwelling on either side of the said Boundary Line freely to pass and repass by Land, or Inland Navigation, into the respective Territories and Countries of the Two Parties on the Continent of America (the Country within the Limits of the Hudson’s Bay Company only excepted) and to navigate all the Lakes, Rivers, and waters thereof, and freely to carry on trade and commerce with each other. But it is understood, that this Article does not extend to the admission of Vessels of the United States into the Sea Ports, Harbours, Bays, or Creeks of His Majesty’s said Territories; nor into such parts of the Rivers in His Majesty’s said Territories as are between the mouth thereof, and the highest Port of Entry from the Sea, except in small vessels trading bona fide between Montreal and Quebec, under such regulations as shall be established to prevent the possibility of any Frauds in this respect. Nor to the admission of British vessels from the Sea into the Rivers of the United States, beyond the highest Ports of Entry for Foreign Vessels from the Sea. The River Mississippi, shall however, according to the Treaty of Peace be entirely open to both Parties; And it is further agreed, That all the ports and places on its Eastern side, to whichsoever of the parties belonging, may freely be resorted to, and used by both parties, in as ample a manner as any of the Atlantic Ports or Places of the United States, or any of the Ports or Places of His Majesty in Great Britain.

 

All Goods and Merchandize whose Importation into His Majesty’s said Territories in America, shall not be entirely prohibited, may freely, for the purposes of Commerce, be carried into the same in the manner aforesaid, by the Citizens of the United States, and such Goods and Merchandize shall be subject to no higher or other Duties than would be payable by His Majesty’s Subjects on the Importation of the same from Europe into the said Territories. And in like manner, all Goods and Merchandize whose Importation into the United States shall not be wholly prohibited, may freely, for the purposes of Commerce, be carried into the same, in the manner aforesaid, by His Majesty’s Subjects, and such Goods and Merchandize shall be subject to no higher or other Duties than would be payable by the Citizens of the United States on the Importation of the same in American Vessels into the Atlantic Ports of the said States. And all Goods not prohibited to be exported from the said Territories respectively, may in like manner be carried out of the same by the Two Parties respectively, paying Duty as aforesaid

 

No Duty of Entry shall ever be levied by either Party on Peltries brought by Land, or Inland Navigation into the said Territories respectively, nor shall the Indians passing or repassing with their own proper Goods and Effects of whatever nature, pay for the same any Impost or Duty whatever. But Goods in Bales, or other large Packages unusual among Indians shall not be considered as Goods belonging bona fide to Indians. No higher or other Tolls or Rates of Ferriage than what are, or shall be payable by Natives, shall be demanded on either side; And no Duties shall be payable on any Goods which shall merely be carried over any of the Portages, or carrying Places on either side, for the purpose of being immediately reimbarked, and carried to some other Place or Places. But as by this Stipulation it is only meant to secure to each Party a free passage across the Portages on both sides, it is agreed, that this Exemption from Duty shall extend only to such Goods as are carried in the usual and direct Road across the Portage, and are not attempted to be in any manner sold or exchanged during their passage across the same, and proper Regulations may be established to prevent the possibility of any Frauds in this respect.

 

As this Article is intended to render in a great Degree the local advantages of each Party common to both, and thereby to promote a disposition favourable to Friendship and good neighbourhood, It is agreed, that the respective Governments will mutually promote this amicable Intercourse, by causing speedy and impartial Justice to be done, and necessary protection to be extended, to all who may be concerned therein.”

 

[22] While some might say that the War of 1812 between Britain and the United States voided all treaties between them – including the Jay Treaty, it remains a fact that the Treaty of Ghent (1814) in the ninth of its 11 Articles “specifically” restored all of the rights and terms of the Jay Treaty as they applied to American Indians (provided that they cease and desist with all hostilities upon notification of the Treaty’s signing) but yet again, with no direct Indigenous consultation or seat at the negotiating table. See Yale Law School. Lillian Goldman Law Library. British-American Diplomacy. Treaty of Ghent; December 24, 1814. [excerpt below with emphasis added]. Visited March 5, 2016. Online: <http://avalon.law.yale.edu/19th_century/ghent.asp>

 

Treaty of Peace and Amity between His Britannic Majesty and the United States of America.

 

ARTICLE THE NINTH.

“The United States of America engage to put an end immediately after the Ratification of the present Treaty to hostilities with all the Tribes or Nations of Indians with whom they may be at war at the time of such Ratification, and forthwith to restore to such Tribes or Nations respectively all the possessions, rights, and privileges which they may have enjoyed or been entitled to in one thousand eight hundred and eleven previous to such hostilities. Provided always that such Tribes or Nations shall agree to desist from all hostilities against the United States of America, their Citizens, and Subjects upon the Ratification of the present Treaty being notified to such Tribes or Nations, and shall so desist accordingly. And His Britannic Majesty engages on his part to put an end immediately after the Ratification of the present Treaty to hostilities with all the Tribes or Nations of Indians with whom He may be at war at the time of such Ratification, and forthwith to restore to such Tribes or Nations respectively all the possessions, rights, and privileges, which they may have enjoyed or been entitled to in one thousand eight hundred and eleven previous to such hostilities. Provided always that such Tribes or Nations shall agree to desist from all hostilities against His Britannic Majesty and His Subjects upon the Ratification of the present Treaty being notified to such Tribes or Nations, and shall so desist accordingly.”

 

[23] I will limit my observations and conclusions to the North American continent and the Arctic.

[24] The degree of this interconnectedness was highlighted by Bill Erasmus, Regional Chief (Assembly of First Nations), as he noted that his own people, members of the Dene Nation were now, and had long been, present as residents, and/or actively trading in Alaska (while it was in Russia), North America, and Mexico. This is a staggering geographic reach. For a brief biography of Regional Chief Erasmus, please see: Assembly of First Nations (AFN). Chief Willy (Bill) Erasmus, B.A. Visited March 5, 2016. Online: <http://www.afn.ca/en/chief-willy-bill-erasmus-b.a>

[25] A hyperlink identifying those “Federally recognized Canadian Indian Bands” that can certify ancestry and Indian ancestry for purposes of U.S. implementation of the Jay Treaty can be found on the website of the United States Customs and Immigration Service (USCIS) under, Green Card for an American Indian Born in Canada. Visited March 5, 2016. Online: <https://www.uscis.gov/green-card/other-ways-get-green-card/green-card-american-indian-born-canada> . However, that link leads directly to a list of Canada’s officially recognized Indian Bands at Aboriginal Affairs and Northern Development Canada (AANDC) – as now renamed Indigenous and Northern Affairs Canada (INAC), under First Nation Profiles. Visited March 5, 2016. Online: <http://pse5-esd5.ainc-inac.gc.ca/fnp/Main/Search/SearchFN.aspx?lang=eng>

[26] 8 CFR §289.1   Definition.

 

The term American Indian born in Canada as used in section 289 of the Act includes only persons possessing 50 per centum or more of the blood of the American Indian race. It does not include a person who is the spouse or child of such an Indian or a person whose membership in an Indian tribe or family is created by adoption, unless such person possesses at least 50 per centum or more of such blood. [Emphasis added].

 

Code of Federal Regulations, Title 8 (Aliens and Nationality), Chapter I – DEPARTMENT OF HOMELAND SECURITY, Subchapter B – IMMIGRATION REGULATIONS. Visited March 4, 2016. Online:<http://www.ecfr.gov/cgi-bin/ECFR?page=browse>

[27] Susana Mas. CBC News. Trudeau lays out plan for new relationship with indigenous people. Posted December 8, 2015, on cbc.ca. Visited March 5, 2016. Online: <http://www.cbc.ca/news/politics/justin-trudeau-afn-indigenous-aboriginal-people-1.3354747>

[28] Id. Recalling the 5 promises of the Liberal election platform, the Prime Minister prioritized: (1) the launch a national public inquiry into missing and murdered indigenous women (as already started); (2) making significant investments in First Nations education; (3) lifting the two per cent cap on funding for First Nations programs; (4) implementing all 94 recommendations from the Truth and Reconciliation Commission; and (5) repealing all legislation unilaterally imposed on indigenous people by the previous government.

[29] Id. “The prime minister also vowed to implement all 94 of the recommendations from the Truth and Reconciliation report, starting with the UN declaration on the rights of Indigenous Peoples.”

[30] Canada NewsWire. Media Advisory – Rt. Hon. Prime Minister Justin Trudeau to Visit Tsuut’ina First Nation. Visited March 4, 2015. Online: <http://www.morningstar.com/news/canada-news-wire/CNW_20160226C2785/media-advisory-rt-hon-prime-minister-justin-trudeau-to-visit-tsuutina-first-nation.html> Honoured with the receipt of a headdress at the event along with the Prime Minister, was the Assembly of First Nations Chief, Perry Bellegarde.

[31] See e.g. Tiar Wilson. CBC News. Hopeful indigenous reaction to Justin Trudeau’s cabinet picks. Posted November 4, 2015, on cbc.ca. Visited March 5, 2016. Online: <http://www.cbc.ca/news/aboriginal/aboriginal-leaders-react-cabinet-choices-1.3303972> Assembly of First Nations Chief Perry Bellegarde was especially pleased with the recognition afforded to Canada’s Aboriginal Peoples in the appointment of two MPs from Canada’s First Nations to significant Cabinet positions – Jody Wilson-Raybould, regional chief of the B.C. Assembly of First Nations was named as Canada’s minister of Justice and Attorney General, and Hunter Tootoo of Nunavut was named as Canada’s minister of fisheries and the Canadian Coast Guard.

[32] One example of policymaking in Canada without proper consultation (if at all), is the entire Indian Residential Schools program, as now and conclusively agreed.

[33] The Jay treaty and its one-way impact is a clear, contemporary, and lasting example of a treaty that could have been very easily interpreted in a different and more inclusive way that was consistent with its framers’ intentions, a long time ago.

[34] Countless examples of disastrous policy implementation in the United States were seen in the mass and forced dislocations of several indigenous communities; as accompanied by other actions that some have called genocide.

[35] See text, below.

[36] This rotation might be by ascending commissioner age, descending commissioner age, alphabetic nation name, alphabetical commissioner name, or as the Aboriginal Commissioners (AC), themselves, may otherwise provide.

[37] There are a several additional reasons for Canada to provide a home base of operations for the Commission:

 

(I) FUNDING – Indian Tribes and Indian Bands have jurisdiction over their own members and can therefore (I think in most if not all cases, as subject to local laws and their ability to exercise powers tantamount to taxation), levy modest assessments against the “on-reserve” income of their citizens and generate sometimes significant “own source revenues”. See e.g. Daniel Schwartz. CBC News. How does native funding work? Posted February 6, 2013, on cbc.ca. Visited March 7, 2016. Online: <http://www.cbc.ca/news/canada/how-does-native-funding-work-1.1301120> Counting all of the Tribes and Bands across Canada, Mexico, and the United States, the significant funds so raised can be matched singly, doubly, (or even more, now that the 2% funding cap for First nations programs in Canada will soon be history), by those 3 national governments of North America that have the most direct stake in the Commission, its work, and its ultimate beneficiaries. Of course, these 3 parties would also pay the way for their own 9 members on the Commission.

 

(II) VALUE – With such a large number of Indian Tribes geographically based in the United States, including several with significant business and resource industry interests and revenues, the exchange rate of United States dollars to Canadian dollars will likely prove quite advantageous to them in money that invariably goes further in a friendly neighbouring country with a stable government and a well-educated, multicultural, and multilingual population.

 

(III) LEVERAGE – As host to the United Nations Secretariat, the International Finance Corporation (World Bank), and the International Monetary Fund (IMF), amongst others, the United States has seen significant and sustained multipliers in the local economies where these entities are based (New York and Washington, D.C.), and political leverage. Canada is already host to the International Civil Aviation Organization (ICAO) in Montreal. Establishing the proposed Commission in Alberta at this time, would provide a much needed economic boost to both that province and Western Canada, and immeasurably boost Canada’s standing, and diplomatic and political credentials in the international community due to first mover advantage. Such an initiative would also show that Canada was living up to Prime Minister Trudeau’s call for a new dawn in “sovereign to sovereign relationships” with Canada’s Aboriginal People – especially by extending that new dawn to all of the Aboriginal Peoples of North America.

 

[38] See supra, notes 27–31 and accompanying text.

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On Thursday, June 26, 2014, the Supreme Court of Canada released a landmark decision on a major B.C. dispute over aboriginal title and related rights.[1] Since that time, three more cases in the Supreme Court of Canada and provincial Courts of Appeal have cited to that decision,[2] in making their own substantial rulings on Aboriginal title and rights in Grassy Narrows,[3] Tyendinaga,[4] and Corporation Makivic.[5] The question now, with all parties agreeing that the definition and scope of Aboriginal title has been expanded beyond what the Crown had hitherto understood it to mean and encompass, is whether this new, wider path will bring more consensus or more conflict in the field of Aboriginal Law. This blog post will explore some of the issues and conclude that there is indeed a fork in the road, either way, but that the Crown and Canada’s Aboriginal Nations, individually and collectively, all have but one path to take – that of good faith cooperation in consultation and accommodation; as mandated by (and if necessary, reviewed under), the laws of Canada pre- and post- patriation.

 

 

BASES OF LAW:

A maze of elements makes-up the field of Aboriginal Law in Canada. This includes the Indian Act,[6] and the precedent prior to it in the Treaties with the Crown over the early years[7] that cover much of what is Canada today, the Constitution Act,[8] and the Canadian Charter of Rights and Freedoms.[9] Tacked-onto this, are the various federal[10] and provincial laws that do or may impact protected aboriginal rights in the realms of sovereignty, resource management, and land stewardship. A full or more complete coverage of all of these is far beyond the scope of this blog post. However, a brief overview of some of the more pertinent parts of this mix is necessary for a better understanding of Tsilhqot’in’s seminal role.

 

The Constitution Act, 1867[11]

Section 91(24) of the Constitution Act, 1867, reserves unto the federal Parliament the power to make laws over “Indians, and lands reserved for Indians”. As this takes supremacy over provincial powers in section 92(13) “property and civil rights in the province”, the federal government and the Indian Act – which was the attempt to meet the mandate of section 91(24) – are the logical starting point. However, section 92A (non-renewable natural resources, forestry resources and electrical energy), further shows that the provinces are co-partners with the central government in Aboriginal relations due to both the resource-heavy focus of the Canadian economy, and the concentration of Aboriginal rights and title on land and the fruits of land. Not surprisingly, this is a recurring point of contention in the clashes on Aboriginal rights and title. Also of note in these disputes are section 92(5) – “management and sale of the public lands belonging to the province and of the timber and wood thereon”, and section 109 –

109. All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all Sums then due or payable for such Lands, Mines, Minerals, or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise, subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same. (Emphasis added in italics).[12]

 

Treaties

Between 1871 and 1921 (post-Confederation), Canada entered into a total of 11 treaties with the First Nations located within most of the Canadian contiguous territory, but excluding the Métis, the Inuit, and many of the First Nations of British Columbia.[13] Sequentially numbered, these 11 treaties were concluded in the following years, regarding the following land areas and regions, and with the following peoples:[14]

Treaty 1 (1871) – covering Southern Manitoba and Saskatchewan, and entered into with the Ojibway and Cree First Nations.

Treaty 2 (1871) – covering Southern Manitoba and Saskatchewan, and entered into with the Ojibway and Cree First Nations.

Treaty 3 (1873) – covering Southeastern Ontario (Lake of the Woods region), and entered into with the Ojibway First Nation (Saulteaux).

Treaty 4 (1874) – covering Southern Saskatchewan (Qu’Appelle region), and entered into with the Cree and Ojibway (Saulteux) First Nations.

Treaty 5 (1875) – covering Central-northern Manitoba, and entered into with the Ojibway (Saulteux) and Swampy Cree First Nations.

Treaty 6 (1876) – covering Central Saskatchewan and Alberta, and entered into with the Plains and Woodlands Cree First Nations.

Treaty 7 (1877) – covering Southern Alberta, and entered into with the Blackfoot and other First Nations.

Treaty 8 (1899) – covering Northern Alberta and the Northeast portion of British Columbia, and entered into with the Cree, Dene, Dogrib, and other First Nations.

Treaty 9 (1905) – covering Northern Ontario (James Bay region), an entered into with the Cree, Ojibway, and other First Nations.

Treaty 10 (1906) – covering Northern Saskatchewan (Peace River region), and entered into with the Dene First Nation and Métis Peoples, amongst others.

Treaty 11 (1921) – covering the western portion of the Northwest Territories, and entered into with the Dene First Nation and Métis Peoples of the Mackenzie region, amongst others.

The Canadian federal government and the provinces are co-equal partners in confederation, and so the provinces as “provincial Crowns”, are charged with administering those treaties that touch and concern the lands within their respective boundaries, on behalf of the “federal Crown”. As such, the federal government and the provinces are co-equally bound in entering into, enforcing, and honouring those treaties; indeed so much so, that in a number of cases both the federal and respective provincial governments, will join as parties in treaty disputes and ongoing negotiations under the Crown duty to consult and accommodate. Also, when the federal government is the counterparty, the salutation or caption reads “the Queen in Right of Canada”, and when a province is a party the salutation or caption reads “the Queen in Right of – ” that province.

 

The Indian Act[15]

The Indian Act represents an attempt by the federal government to occupy the field with respect to aboriginal matters. Coverage ranges from the definition of who is and is not an Indian under the Act, the maintenance of band lists, regulation of reserve lands and band councils, internal governance of reserve lands, band membership, property and trading, and the management of moneys flowing to and from reserves, and as held or managed on behalf of Indians by the Crown or its agents. However, one carve-out at section 88, fully in line with Canadian sovereignty and provincial legislative authority, is key:

88. Subject to the terms of any treaty and any other Act of Parliament, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that those laws are inconsistent with this Act or the First Nations Fiscal Management Act, or with any order, rule, regulation or law of a band made under those Acts, and except to the extent that those provincial laws make provision for any matter for which provision is made by or under those Acts.

 

The Canadian Charter of Rights and Freedoms[16]

Canada does have a separate Bill of Rights (as does the province of Quebec). However, it is this Charter of Rights and Freedoms (the Charter) that is most commonly used by Aboriginal and other Canadians alike, in their attempts to redress perceived violations of their rights. The Charter (being sections 1 through and including 34 of the Canada Act, 1982), recognizes the primacy of the Constitution Act, 1867:

52(1). The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

And, along with fundamental freedoms, mobility rights, legal rights, equality rights, and linguistic rights, there are additional provisions specifically protecting Canada’s Aboriginal peoples. These include sections 22, 25, and 35.

 

Rights and privileges preserved

22. Nothing in sections 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Charter with respect to any language that is not English or French. (Emphasis added).

 

Aboriginal rights and freedoms not affected by Charter

25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including

(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and

(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.

 

Recognition of existing aboriginal and treaty rights[17]

35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

 

Definition of “aboriginal peoples of Canada”

(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.

 

Land claims agreements

(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.

 

Aboriginal and treaty rights are guaranteed equally to both sexes

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

Under section 35.1, Canada also undertakes to: (i) convene a constitutional conference, and (ii) “invite representatives of the aboriginal peoples of Canada to participate in the discussions on that item”, before any changes are made to section 91(24) of the Constitution Act, 1867 (above); section 25 of the Canada Act, 1982 (above); or to section 35 (including by implication any subparts, such as 35.1, also).

Again, however, there are two carve-outs that add a degree of freedom for both the federal and provincial Crowns to temporarily curtail any rights – Aboriginal or non-Aboriginal – through sections 33 and 1.[18]

 

Exception where express declaration

33(1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

 

Operation of exception

(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

 

Five year limitation

(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

 

Re-enactment

(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).

 

Five year limitation

(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).

 

Section 1, which is part of the Charter, provides:

Rights and freedoms in Canada

  1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. (Emphasis added).

By this mandate, the Supreme Court has established a test (the “Oakes Test”),[19] in holding that:

“To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be “of sufficient importance to warrant overriding a constitutionally protected right or freedom,”” (…) (citations omitted).

 “Second, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. This involves “a form of proportionality test”” (…) (citations omitted).[20]

 

 

THE LANDMARK RULING:

 

Tsilhqot’in:

This case involved a series of questions with regard to Aboriginal Law in Canada. The trial judge had found that: (i) by a given definition of Aboriginal title; (ii) Aboriginal title existed in the subject lands; (iii) (iii) and by breaching its constitutional duty to consult and accommodate prior to issuing logging licenses under the Forest Act of British Columbia with regard to those lands;[21] (iv) the Crown had made an unjustified incursion onto those lands and in violation of that Aboriginal title. Core questions at the Supreme Court of Canada (S.C.C.), were therefore: (a) what is the proper test for Aboriginal title; (b) did the trial judge err in finding that it existed in those lands; (c) did the Crown breach its duty to consult and accommodate before issuing the licenses; and (d) was the incursion unjustified under the law?[22]

The Tsilhqot’in Nation is a group of 6 bands[23] in British Columbia that share a common culture and history. “They lived in villages, managed lands for the foraging of roots and herbs, hunted and trapped. They repelled invaders and set terms for the European traders who came onto their land.”[24] However, like hundreds of other Aboriginal groups in British Columbia, they have unresolved land claims, lack treaties with both the federal and provincial Crowns, and consider the land as having always belonged to them.[25] The actual claim involves a sparsely populated area of 200 people (mostly from the 3,000 member Tsilhqot’in Nations), which covers roughly five percent of the total Tsilhqot’in territory, and it arose from the 1983 grant by British Columbia of a forest license to Carrier Lumber Ltd. After a bridge blockade, demands for a right of first refusal over logging by the originating Xeni Gwet’in First Nation, a Compliant amended in 1998 to include all Tsilhqot’in Nations, and a trial that began in 2002 and ended in 2007, the trial Judge – The Honourable Vickers, J. of the British Columbia Supreme Court – applied the test for Aboriginal title laid-down by Lamer, C.J. in Delgamuukw,[26] and ruled in 2007, that Aboriginal title was properly applicable for a part of the claim area, as well as some lands outside the claim area; but he did not make any declaration of title.[27]On this basis, he concluded that the Tsilhqot’in had established title not only to village sites and areas maintained for the harvesting of roots and berries, but to larger territories which their ancestors used regularly and exclusively for hunting, fishing and other activities.”[28]

In 2012, the British Columbia Court of Appeal reversed that ruling, and found that title had not been established; although admitting that the Tsilhqot’in Nation “might” be able to prove its claim to Aboriginal title at some point in the future.[29]It held that to prove sufficient occupation for title to land, an Aboriginal group must prove that its ancestors intensively used a definite tract of land with reasonably defined boundaries at the time of European sovereignty.”[30] The B.C. Court of Appeal further ruled that their rights with regard to the rest of the claimed lands (on the spectrum of Aboriginal rights identified in earlier caselaw),[31] were “confined to Aboriginal rights to hunt, trap and harvest (…).[32]

At the S.C.C. and regarding the first and second core questions identified above, the S.C.C. found that the proper test for Aboriginal title had been used at trial, and that there was indeed sufficient occupation of a continuous and exclusive nature, to support the finding at trial of valid Aboriginal title; with the province having failed to show “(…) that the conclusions of the trial judge are unsupported by the evidence or otherwise in error. Nor has it established his conclusions were arbitrary or insufficiently precise.”[33]

On the issue of infringement, the S.C.C. first acknowledged that Section 109 of the Constitution Act, 1867, makes the Crown’s residual title to land subject to Aboriginal title,[34] and then summarized the resultant rationale for the constitutional, legal need to justify any and all infringements of those rights.[35] In identifying and applying the test[36] for infringement justifications, the S.C.C. stated at para. 77:

To justify overriding the Aboriginal title-holding group’s wishes on the basis of the broader public good, the government must show: (1) that it discharged its procedural duty to consult and accommodate, (2) that its actions were backed by a compelling and substantial objective; and (3) that the governmental action is consistent with the Crown’s fiduciary obligation to the group: Sparrow.[37]

Prior to the establishment of title, the Crown owes a duty to consult, and accommodate if necessary, the interests of the Aboriginal group concerned. “At this stage, the Crown may continue to manage the resource in question, but the honour of the Crown requires it to respect the potential, but yet unproven claims.”[38] Once title is established, however, a greater duty is owed; all prior actions by the Crown with regard to the land (including legislation, if applicable) must be reconsidered and may be abandoned or recalled if and as necessary to preserve the interests[39] of the Aboriginal group in that land; and absent consent and accommodation, or justified incursion under s. 35 of the Constitution Act, 1982, the project or proposed use cannot lawfully proceed.[40]

On the third core question, the breached duty to consult found at trial, the S.C.C. agreed that there had been a clear breach by the Crown of its fiduciary and constitutional duty to consult and accommodate:

The Crown’s duty to consult was breached when Crown officials engaged in the planning process for the removal of timber. The inclusion of timber on Aboriginal title land in a timber supply area, the approval of cut blocks on Aboriginal title land in a forest development plan, and the allocation of cutting permits all occurred without any meaningful consultation with the Tsilhqot’in.[41]

Finally, the S.C.C. turned to the fourth core question, and the issue of justification for the infringement. The Court agreed with the holding in Delgamuukw, namely that “(…) notwithstanding s. 91(24), provincial laws of general application apply proprio vigore to Indians and Indian lands.[42] However, the Sparrow factors also required consideration and weighing, to whit: “(1) whether the limitation imposed by the legislation is unreasonable; (2) whether the legislation imposes undue hardship; and (3) whether the legislation denies the holders of the right their preferred means of exercising the right (at p. 1112).”[43]

Finding, first, that there was an implied right of the province within the Forest Act, to regulate all lands “under claim for aboriginal title” prior to the actual establishment of Aboriginal title (to avoid the unwelcome result of those vast tracts of British Columbia lands being left entirely unregulated),[44] the S.C.C. considered the doctrine of paramountcy (federal law prevails where it is impossible to comply with both federal and provincial law on the same subject, or where the provincial law “frustrates the purpose” of the federal law);[45] and the doctrine of interjurisdictional immunity (“where laws enacted by one level of government impair the protected core of jurisdiction possessed by the other level of government”),[46] to conclude that the trial Judge improperly applied interjurisdictional immunity to find infringement when the same conclusion could have been reached by applying the more “complete and rational” Sparrow factors approach, to an analysis of s. 35 of the Constitution Act, 1982.[47] The S.C.C. therefore allowed the Appeal and granted a declaration of Aboriginal title in favour of the Tsilhqot’in.[48]

 

 

ITS IMMEDIATE AFTERMATH:

Subsequent to Tsilhqot’in, we must consider three additional cases decided on the subject of Aboriginal law in Canada. Grassy Narrows First Nation v. Ontario (Natural Resources) was decided in the S.C.C.,[49] Tyendinaga Mohawk Council v. Brant was decided in English-speaking Canada’s Court of Appeal for Ontario,[50] and Corporation Makivik c. Québec (Procureure générale) was decided in French-speaking Canada’s Court of Appeal of Quebec.[51] I will address these cases in their chronological order.

 

Grassy Narrows:

The Grassy Narrows First Nation, successors in interest to the Aboriginal signatories, had originally taken issue with Ontario’s interpretation of Treaty 3 of 1873.[52] The Treaty had been made between the Ojibway and Canada, but the province of Ontario had “stepped into the shoes” of Canada in follow-on implementation that would impact their Aboriginal rights by issuing clear-cut licenses to Resolute FP Canada Inc. (formerly Abitibi-Consolidated Inc.), in 1997.[53] The Grassy Narrows First Nation had launched their action to set aside those licenses for violating their harvesting rights under Treaty 3.  Referred to as the Keewatin tract, the disputed portion of land covered by the treaty – originally property of the Dominion of Canada – had later been annexed to Ontario through the Ontario Boundaries Extension Act, S.C. 1912, c. 40. This firmly gave Ontario the right to manage the Treaty and “take-up” the subject lands as and when needed.[54]

The Ojibway yielded ownership of their territory, except for certain lands reserved to them. In return, the Ojibway received annuity payments, goods, and the right to harvest the non-reserve lands surrendered by them until such time as they were “taken up” for settlement, mining, lumbering, or other purposes by the Government of the Dominion of Canada.[55]

The trial judge ruled that Ontario did not have the authority to take-up the treaty lands, or to infringe on the Aboriginal harvesting rights. The Ontario Court of Appeal reversed, and the S.C.C. agreed that Ontario did indeed have full authority under sections 92A, 92(5), and 109,[56] to take-up the subject lands without any reference to or approval from the federal government in a 2-stage process;[57] but “subject only to the legal limits imposed by the honour of the Crown and s. 35 of the Constitution Act, 1982.” [58] As the Chief Justice wrote in her Opinion, in the unanimous decision of the 7 Justices there present:

Ontario has exclusive authority under the Constitution Act, 1867 to take up provincial lands for forestry, mining, settlement, and other exclusively provincial matters. Federal supervision is not required by the Constitution.[59]

Attempts to cite the doctrine of interjurisdictional immunity considered in Tsilhqot’in, as a bar against provincial taking-up of Aboriginal lands and infringing treaty rights, were dismissed as inapplicable.[60]

 

Tyendinaga:

In a largely internal dispute, the Tyendinaga Mohawk Council sought clarification of the interpretation and application of certain sections of the Indian Act,[61] as they touched and concerned lands on the actual reserve of that First Nation, and a building that was situated on the territory of that First Nation.[62] The Respondents had made an offer to purchase some lands, not followed through, borrowed money and constructed a building on the lands which they occupied for a time, and then abandoned. They never repaid those loans, but returned several years later to make a low offer for the lands (which was rebuffed), and then forcibly re-occupied the building that they had erected, to claim it as their own. Later, they “sold” the land and building to a third party, which then operated there over the Council’s objections.[63]

The Chief of the Mohawks of the Bay of Quinte First Nation (MBQ) then launched a suit to regain possession of the lands and building and recover damages, and the trial judge granted a mandatory inunction, along with general and special damages of $250,000 and $50,000, respectively.[64] After the substance of the malfeasing parties’ appeals were dismissed, MBQ sought to enforce its win through writs of seizure and sale against other properties of their opponents that had not been the subject of the action. However, the sheriff refused on the advice of the Attorney General of Ontario that s. 29 of the Indian Act exempted reserve lands from seizure.[65] As a result, MBQ sought a Motion to force compliance in the transfer of Certificates of Possession for those unrelated lands,[66] which now brought the Attorney General of Canada’s participation on behalf of the Indian Lands Registrar, to reiterate the discretionary authority of the Minister of Aboriginal Affairs and Northern Development in “(…) the examination, registration and recording of documents such as leases, allotments, designations and permits that grant an interest or licence in First Nation lands. This includes the transfer of possession of reserve lands.[67]

The motions judge found that s. 29 (exemption of real property from seizure) and s. 89(1),[68] which prohibited the seizure of personal property of an Aboriginal person or Band by anyone other than another Aboriginal person or a Band, worked in unison; and that the Ontario Superior Court therefore had jurisdiction to order completion of all papers, subject to the Indian Act, that were needed to transfer the Certificates of Possession back to the MBQ,[69] as the said Certificates of Possession represented “merely evidence of the allotment of possession of reserve land by a band council to an Indian band member.”[70]

The Appellate Justices agreed, and as LaForme J.A. wrote in his opinion for the Ontario Court of Appeal, barring specific exceptions set-out by Parliament:

Ontario Superior Courts have “plenary and inherent jurisdiction to hear and decide all cases that come before them, regardless of whether the law applicable to a particular case is provincial, federal or constitutional” (…)[71]

The court reiterated that Aboriginal title was sui generis and quite distinct from fee simple,[72] and the appeal was dismissed with costs.

 

Corporation Makivik:

The appellants sought relief from a ruling of the Quebec Superior Court that upheld certain changes to Quebec hunting regulations (altering the start of the hunting season from November 1, 2011, to October 15, 2011, and allowing hunting of Caribou of the George River herd), despite alleged non-adherence to consultation provisions of the James Bay and Northern Quebec Treaty.[73] The Inuit and Cree had signed this Treaty in 1975, with the Naskapi joining them in 1978 through the Northeastern Quebec Treaty.[74] To manage the Treaty,[75] which divided the lands into three categories, a joint committee of 16 members (with complex voting rules and a rotating chairperson position), was established with Aboriginal, provincial, and federal representatives to “study, manage and, in some cases, to monitor and regulate the hunting, fishing and trapping.”[76]

Despite a finding that there had been significant declines in the caribou populations of the George River herd (eastern area of the subject lands) and the Leaf River herd (western area of the subject lands),[77] and a resulting push by indigenous representatives for a complete moratorium on sport hunting,[78] the Quebec Minister of Natural Resources and Wildlife (the “Minister”) responded to deadlock and impasse on the joint committee by taking unilateral action with regard to hunting season start dates, and the number of permits to be issued.[79] As a result, Aboriginal members of the joint committee demanded that the ministry suspend implementation of the stated measures,[80] a federal representative on the joint committee informed the Minister that he had violated the consultation process in several ways,[81] and the appellants launched their suit in Quebec Superior Court for declaratory and injunctive relief.[82] Then, with an Aboriginal representative in the rotating presidency, the joint committee issued a new recommendation that reflected the Aboriginal wishes, which the Minister refused to accept; opting instead to finalize the ministry’s earlier unilateral actions with Ministerial Order MO 2011-026.[83]

The Quebec Superior Court conceded that changes to the hunting season start date were serious matters that required consultation, but then ruled that the “serious and detailed exchanges” taking place on the joint committee sufficiently apprised the Minister of all party positions that any failure to further consult that committee before finalizing the Caribou hunting regulations, as amended, was a mere good faith “procedural” error not warranting any voiding of that action or of those regulations.[84]

Writing for the Quebec Court of Appeal, The Honourable Pierre J. Dalphond, J.C.A., reviewed some of the grounding law of Aboriginal rights and treaty lore in Canada, and rejected the government’s position that the matter was moot due to the end of the disputed hunting season – the offending rules were still in effect, the underlying issues were likely to re-appear, and the parties needed process guidance for their future dealings.[85] Reviewing the legislative framework, Dalphond J.C.A. also concluded that the joint committee should not have been so hastily brushed-aside by the Minister:

I conclude from this analysis of chapter 24 that the parties to the Convention have established exhaustive procedures for the co-management of hunting, fishing, and trapping in the territory, at the heart of which is found the joint committee, a special entity.[86] (Emphasis added).

Furthermore, the Minister’s obligation to once again consult if he has decided to not follow a recommendation of the joint committee clearly shows the obligation to take into consideration the interests of Aboriginal peoples and respond, rather than to impose his vision of affairs, except in those situations that might justify some curtailment of this co-management process.[87]

Citing to Delgamuukw, Dalphond, J.C.A. first noted that sliding scale in the scope of the Crown’s duty of consultation and accommodation,[88] and then he assessed the specific provisions of Chapter 24 to conclude that the Minister had committed numerous breaches of the agreed process – the unilateral pronouncement of Caribou hunting season date changes, inattention to the concerns of Aboriginal representatives on the joint committee, blatantly ignoring a subsequent resolution of the joint committee without any explanation or reasons given, failing to have follow-up consultations after that resolution, and not submitting proposed regulations to the joint committee prior to their adoption.[89] Furthermore, these violations of treaty rights and of the duty to consult could not be justified for reasons of emergency, conservation, or otherwise under s. 35 of the Constitution Act, 1982.[90]

As a remedy, Dalphond, J.C.A., noted that invalidation would cause undue complication, as the impugned regulations had been amended several times since their original passage, and also because sudden changes might spur additional court challenges from affected parties.[91] Hence, he recommended that the Quebec Court of Appeal allow the appeal, reverse the decision below of the Superior Court, and welcome the original motion of the appellants for a declaration that the Minister had violated their rights and the duty to consult; while awarding costs to the appellants and preserving their rights to claim compensation for the damages that they had suffered as a result of these violations.[92]

 

 

THE ROAD AHEAD:

Tsilhqot’in resolved the proper test for Aboriginal title, application of the Crown’s duty to consult and accommodate, and the test for justifications of the breach of Aboriginal rights, being s. 35 of the Constitution Act, 1982.[93] Grassy Narrows considered the respective federal and provincial roles in the “taking-up” of treaty lands, as well as whether paramountcy or interjurisdictional immunity was the proper yardstick to define the limits of their respective jurisdictions.[94] Tyendinaga clarified alleged inconsistencies in the Indian Act and re-affirmed the jurisdiction of Justices of the Superior Courts over all matters properly before them.[95] Finally, Corporation Makivic stands for the dual proposition that the duty to consult cannot be taken lightly, and that historic violations of Aboriginal or treaty rights are not moot issues when the offending legal regimes are still in effect, the circumstances surrounding those past violations are still prevalent, and the parties need the court’s guidance for their future dealings.[96]

This line of cases further clarifies the distinction between Aboriginal rights (whether central or peripheral as “rights short of title”), and Aboriginal title, which is supported by some pre-sovereignty occupation that need not be complete across the entire tract of land (Tsilhqot’in) or unchanging (Delgamuukw).[97]

Conclusive evidence of pre-sovereignty occupation may be difficult to come by. Instead, an aboriginal community may provide evidence of present occupation as proof of pre-sovereignty occupation in support of a claim to aboriginal title. What is required, in addition, is a continuity between present and pre-sovereignty occupation, because the relevant time for the determination of aboriginal title is at the time before sovereignty.[98]

Tsilhqot’in and subsequent caselaw clarified and consolidated the law and the applicable tests to be used when considering questions of Aboriginal title and its elements (Sparrow, Delgamuukw), Aboriginal rights and their contents (Van der Peet, Adams), the spectrum of the Crown’s duty and honour in consultation and accommodation (Haida Nation), which level of government can extinguish Aboriginal rights and/or take-up and further manage Aboriginal lands and treaty compliance (Mikisew, Grassy Narrows), and which level of courts has first instance jurisdiction over matters of Aboriginal law (Tyendinaga). With these better defined rules and parameters, the fact that larger tracts of land may now be subject to central and peripheral aboriginal rights, and that violations of those rights may always be alleged (Ekuanitshit, Wabauskang) should not cause undue consternation to either side. However, this only holds so long as the established processes are followed in good faith, and shortcuts such as those taken in Corporation Makivik, are not resorted to when that critical and mandatory constitutional process (of consultation and accommodation) proves too slow for some. In any case, all matters can always be appropriately reviewed (Dunsmuir, Enge), and judged in accordance with the similarly critical and constitutional process of s. 35 balancing (or Oakes, if applicable), because the courts will not shy-away from declaring violations of rights and processes; that much is crystal clear. Practicality and common sense, though, limit appropriate remedies (Delgamuukw, Tsilhqot’in, Corporation Makivik).

In the words of Lamer, CJ, “[l]et us face it, we are all here to stay.”[99]

More specifically, what s. 35(1) does is provide the constitutional framework through which the fact that aboriginals lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown.  The substantive rights which fall within the provision must be defined in light of this purpose; the aboriginal rights recognized and affirmed by s. 35(1) must be directed towards the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown. [100]

So, even if it takes time and can get a little bit acrimonious, we “really” have no choice but to all just ………………… get along!

 

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Author:

Ekundayo George is a lawyer and a sociologist. He has also taken courses in organizational and micro-organizational behavior, and has significant experienced in business law and counseling (incorporations, business plans, contracts and non-disclosure agreements, teaming and joint venture agreements), diverse litigation, and regulatory compliance practice. He is licensed to practice law in Ontario, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America (U.S. business advising, outsourcing and cross-border trade, technology contracts, and U.S. financing). See, for example: http://www.ogalaws.com. A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy. He is a published author on the National Security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal milieux.

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[1] Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (CanLII), [2014] S.C.J. No. 44, docket number 34986, released June 26, 2014. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/2014/2014scc44/2014scc44.html<

[2] Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48 (CanLII), docket number 35379, released July 11, 2014; Tyendinaga Mohawk Council v. Brant, 2014 ONCA 565 (CanLII), docket number C57655, released July 30, 2014; and Corporation Makivik c. Québec (Procureure générale) 2014 QCCA 1455 (CanLII), docket numbers 500-09-022212-112, and 500-09-022213-110 (500-17-064940-110), released August 14, 2014.

[3] Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48 (CanLII), docket number 35379, released July 11, 2014. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/2014/2014scc48/2014scc48.html?searchUrlHash=AAAAAQAbZ3Jhc3N5IG5hcnJvd3MgZmlyc3QgbmF0aW9uAAAAAAE< This case has itself, already been cited by the Ontario Superior Court on that specific duty to consult, in Wabauskang First Nation v. Minister of Northern Development and Mines et al, 2014 ONSC 4424 (CanLII), court file 585/12, released August 28, 2014. Online: >http://www.canlii.org/en/on/onscdc/doc/2014/2014onsc4424/2014onsc4424.html?searchUrlHash=AAAAAAAAAAEAFDIwMTQgU0NDIDQ4IChDYW5MSUkpAAAAAgAsL2ZyL2NhL2NzYy9kb2MvMjAxNC8yMDE0Y3NjNDgvMjAxNGNzYzQ4Lmh0bWwALC9lbi9jYS9zY2MvZG9jLzIwMTQvMjAxNHNjYzQ4LzIwMTRzY2M0OC5odG1sAQ< In Wabauskang, a panel of the Ontario Divisional Court (appellate), was called upon to review – and quash or suspend – a decision of the Ontario Ministry of Northern Development and Mines to accept a mine Production Closure Plan (PCP) in light of claims by the Wabauskang First Nation of failure to properly consult and accommodate by the Crown. In defining the duty to consult, the court cited in paragraph 199 of its own ruling to Haida Nation v. British Columbia (Ministry of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511¸ at para. 16:

The government’s duty to consult with Aboriginal peoples and accommodate their interests is grounded in the honour of the Crown. The honour of the Crown is always at stake in its dealings with Aboriginal peoples. It is not a mere incantation, but rather a core precept that finds its application in concrete practices.

The Application was dismissed, as the court found that Ontario had both established a reasonable process to determine the degree of consultation required, reasonably carried out that duty in light of any new material arising (Wabauskang, at paras. 202-4), and did not improperly delegate any substantive Crown duty to consult and accommodate, to the mine developer (Wabauskang, at paras. 229-30). The four escalating levels of consultation considered by Ontario and the mine developer, in light of the Haida Nation ruling, were: no consultation, notification only, standard consultation, and enhanced consultation (Wabauskang, at para. 21).

One week prior thereto, the Federal Court of Appeal also dismissed an application for judicial review in another claim of failed and/or insufficient consultation and accommodation, in Council of the Innu of Ekuanitshit v. Canada (Attorney General), 2014 FCA 189 (CanLII), docket number A-196-13, released August 22, 2014.   Online: >http://www.canlii.org/en/ca/fca/doc/2014/2014fca189/2014fca189.html?searchUrlHash=AAAAAAAAAAEAFDIwMTQgU0NDIDQ0IChDYW5MSUkpAAAAAgAsL2ZyL2NhL2NzYy9kb2MvMjAxNC8yMDE0Y3NjNDQvMjAxNGNzYzQ0Lmh0bWwALC9lbi9jYS9zY2MvZG9jLzIwMTQvMjAxNHNjYzQ0LzIwMTRzY2M0NC5odG1sAQ< In Ekuanitshit, the issue was consultations prior to an Order of the Governor in Council approving the federal government’s response to the Report of the Joint Review Panel, Lower Churchill Hydroelectric Generation Project, in Newfoundland and Labrador.   The Innu of Ekuanitshit (hailing into court the federal ministers of Fisheries and Oceans, Transport, and Natural Resources along with the federal Attorney General and Nalcor Energy, the developer), claimed that a federal conclusion that the energy, socioeconomic, and environmental benefits of the hydroelectric plant project outweighed its adverse environmental effects, was reached without sufficient or even proper consultation. The questions presented were whether the Judge at trial had erred in finding: (i) that the actions of the Governor in Council and others were compliant with law; and (ii) that the Crown had not breached its duty to consult and seek accommodation measures on those Project elements likely to have a prejudicial effect on their Aboriginal rights.

The court, however, ruled on the first question at para. 73, that: “(…) the fact that the Governor in Council and responsible authorities exercised their discretion to approve a project whose scope was defined by the minister with the statutory authority to do so tends to favour the reasonableness of the impugned decisions, rather than the reverse. “ And on the second question, it further ruled at para. 122, that:

The appellant has not demonstrated, in the circumstances of this case, that the government neglected its duty to consult prior to the issuance of the order. Therefore, in light of the evidence in the record, I am of the view that the judge did not err in finding that the appellant was consulted in an adequate manner and that the mitigating measures address, for now, its concerns. Indeed, the consultation conducted at this stage, given the strength of the claim and the seriousness of the adverse impact that the government-proposed measure would have on the asserted right, meets “the idea of proportionate balancing” referred to in Haida Nation. (Haida Nation at para. 39; Tsilhqot’in Nation at para. 79).

[4] Tyendinaga Mohawk Council v. Brant, 2014 ONCA 565 (CanLII), docket number C57655, released July 30, 2014. Court of Appeal for Ontario. Online: >http://www.canlii.org/en/on/onca/doc/2014/2014onca565/2014onca565.html?searchUrlHash=AAAAAQAaVHllbmRpbmFnYSBNb2hhd2sgQ291bmNpbCAAAAAAAQ<

[5] Corporation Makivik c. Québec (Procureure générale) 2014 QCCA 1455 (CanLII), docket numbers 500-09-022212-112, and 500-09-022213-110 (500-17-064940-110), released August 14, 2014. Court of Appeal of Quebec. Online: >http://www.canlii.org/fr/qc/qcca/doc/2014/2014qcca1455/2014qcca1455.html?searchUrlHash=AAAAAQATY29ycG9yYXRpb24gbWFraXZpawAAAAAB<

[6] The Indian Act, R.S.C., 1985, c. I-5. Government of Canada. Online: >http://laws-lois.justice.gc.ca/eng/acts/i-5/<

[7] See Infra, notes 13-14 and accompanying text.

[8] Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.), R.S.C. 1985. Government of Canada. Online: >http://laws-lois.justice.gc.ca/eng/Const/index.html<

[9] The Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, C-11 (Charter). Government of Canada. Online: >http://laws-lois.justice.gc.ca/eng/Const/page-15.html<

[10] See e.g. Part 2 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c-11, Infra, note 16.

[11] Constitution Act, 1867. Supra, note 8.

[12] In accordance with this section, the provinces have enacted their various forestry laws and regulations, and the federation has enacted the Indian Oil and Gas Act, R.S.C., 1985, c. I-7, and the Indian Oil and Gas Regulations, 1995, SOR/94-753, as managed by Indian Oil and Gas Canada (IOGC) to regulate the “exploration and development of oil and gas on First Nations Reserve lands in Canada”.   Online: >http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-i-7/latest/rsc-1985-c-i-7.html< (Act); >http://www.canlii.org/en/ca/laws/regu/sor-94-753/latest/sor-94-753.html< (Regulations).

[13] Numbered Treaties Key, Part f, Chapter 6.1.4 – Aboriginal Peoples and the Growing Nation of Canada.

Government of Manitoba, Department of Education and Advanced Learning, K-12 Curriculum, Grade 6 Social Studies Blackline Masters. Online: >http://www.edu.gov.mb.ca/k12/cur/socstud/foundation_gr6/blms/<

[14] Id.

[15] The Indian Act. Supra, note 6.

[16] The Canadian Charter of Rights and Freedoms. Supra, note 9.

[17] Schedule B, Part 2 to the Canada Act 1982, 1982, c. 11 (U.K.). “Rights of the Aboriginal Peoples of Canada”. This is not part of the Canadian Charter of Rights and Freedoms, but it is an integral part of the Canada Act, 1982. Government of Canada. Online: >http://laws-lois.justice.gc.ca/eng/Const/page-15.html<

[18] See e.g. R v. Oakes, Infra note 19, at para. 65:

The rights and freedoms guaranteed by the Charter are not, however, absolute. It may become necessary to limit rights and freedoms in circumstances where their exercise would be inimical to the realization of collective goals of fundamental importance. For this reason, s. 1 provides criteria of justification for limits on the rights and freedoms guaranteed by the Charter. These criteria impose a stringent standard of justification, especially when understood in terms of the two contextual considerations discussed above, namely, the violation of a constitutionally guaranteed right or freedom and the fundamental principles of a free and democratic society.

[19] R v. Oakes, 1986 CanLII 46 SCC, [1986] 1 S.C.R. 103, at paras. 69-70, docket number 17550, released February 28, 1986. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/1986/1986canlii46/1986canlii46.html<

[20] A fuller discussion of the sub-elements of this test and its application in Canada’s courts since it was created, is beyond the scope of this blog post. However, it is important to note here, that there is a marked difference between the Oakes test for justification of constitutional infringements, and the test on judicial review for whether the decision of a lower court or tribunal should be left to stand. The latter standard of review test – with a standard of “correctness” (on questions of law – including within the Aboriginal Law context, the existence and extent of a duty to consult), and a standard of “reasonableness” (on questions of fact, and questions of mixed law and fact – including within the Aboriginal Law context, the actual process and results of consultation), was originally articulated in Dunsmuir v. New Brunswick, 2008 SCC 9 (CanLII). However, it was more recently and succinctly encapsulated in Enge v. Mandeville et. al., 2013 NWTSC 33, (CanLII). There, the court cited to paras. 47-50 of Dunsmuir, in stating in its own para. 22, on reasonableness, that:

The reasonableness standard is one of deference and involves the review and analysis of the decision-maker’s reasoning process and decision.  The question is not whether the decision is correct but whether it is within a range of acceptable and rational outcomes. The focus is on the outcome and on the process of articulating the reasons.  Applying the reasonableness standard involves a search for justification, transparency and intelligibility in the decision-making process.

Thence, it further stated at its own para. 23, on correctness:

The correctness standard does not involve deference to the decision-maker and a reviewing court will undertake its own analysis of the issues.  If the court does not agree with the decision, it will provide the correct answer.  The question is whether the decision was correct.

See generally, Enge v. Mandeville et al., 2013 NWTSC 33 (CanLII), at paras. 22-28, docket number S-1-CV-2012000002, released June 20, 2013 (corrected June 27, 2013). Supreme Court of the Northwest Territories. Online: >http://www.canlii.org/en/nt/ntsc/doc/2013/2013nwtsc33/2013nwtsc33.html<; Dunsmuir v. New Brunswick, 2008 SCC 9, (CanLII), docket number 31459, released March 7, 2008. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/2008/2008scc9/2008scc9.html<

[21] Forest Act, R.S.B.C. 1996, c. 157. Online: >http://www.bclaws.ca/Recon/document/ID/freeside/96157_00<

[22] Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (CanLII), [2014] S.C.J. No. 44, docket number 34986, released June 26, 2014. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/2014/2014scc44/2014scc44.html<

[23] See generally, The Canadian Encyclopedia. Tsilhqot’in (Chilcotin) – Contemporary Activities. Visited September 24, 2014. Online: >http://www.thecanadianencyclopedia.ca/en/article/chilcotin-tsilhqotin/< These 6 bands are: the ‘Esdilagh First Nation (Alexandria Band); Tsi Del Del First Nation (Alexis Creek First Nation); Yunesit’in First Nation (Stone Band); Tl’etinqox-t’in First Nation (Anaham Band); Tl’esqox (Toosey Band); and the Xeni Gwet’in First Nation (Nemiah Band), which peoples prevail throughout the Chilcotin Plateau of west-central British Columbia.

[24] Tsilhqot’in, supra note 22 at para. 3.

[25] Id. at paras. 3-4.

[26]

In order to make out a claim for aboriginal title, the aboriginal group asserting title must satisfy the following criteria: (i) the land must have been occupied prior to sovereignty, (ii) if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation, and (iii) at sovereignty, that occupation must have been exclusive.

Delgamuukw v. B.C., 1997 CanLII 302 (SCC) at para. 143, [1997] 3 SCR 1010, released December 11, 1997. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/1997/1997canlii302/1997canlii302.html<

[27] Tsilhqot’in, supra note 22 at paras. 5-7.

[28] Id. at para. 27.

[29] Id. at para. 8.

[30] Id. at para. 28.

[31]

The picture which emerges from Adams is that the aboriginal rights which are recognized and affirmed by s. 35(1) fall along a spectrum with respect to their degree of connection with the land.

At the one end, there are those aboriginal rights which are practices, customs and traditions that are integral to the distinctive aboriginal culture of the group claiming the right. However, the “occupation and use of the land” where the activity is taking place is not “sufficient to support a claim of title to the land” (at para. 26 (emphasis in original)). Nevertheless, those activities receive constitutional protection.

In the middle, there are activities which, out of necessity, take place on land and indeed, might be intimately related to a particular piece of land. Although an aboriginal group may not be able to demonstrate title to the land, it may nevertheless have a site-specific right to engage in a particular activity.

At the other end of the spectrum, there is aboriginal title itself. As Adams makes clear, aboriginal title confers more than the right to engage in site-specific activities which are aspects of the practices, customs and traditions of distinctive aboriginal cultures. Site-specific rights can be made out even if title cannot. What aboriginal title confers is the right to the land itself. [With additional spacing, here].

Delgamuukw v. B.C., 1997CanLII 302 (SCC) at para. 138, [1997] 3 SCR 1010, per Lamer, C.J., citing to the Court’s earlier ruling in Adams (R v. Adams, 1996 CanLII 169 (SCC)). Released December 11, 1997. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/1997/1997canlii302/1997canlii302.html< See also R v. Adams, 1996 CanLII 169 (SCC), [1996] 3 SCR 101, released October 3, 1996. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/1996/1996canlii169/1996canlii169.html<

[32] Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (CanLII), at para. 8, [2014] S.C.J. No. 44, docket number 34986, released June 26, 2014. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/2014/2014scc44/2014scc44.html<

[33] Id. at para. 61.

[34]

What remains, then, of the Crown’s radical or underlying title to lands held under Aboriginal title? The authorities suggest two related elements — a fiduciary duty owed by the Crown to Aboriginal people when dealing with Aboriginal lands, and the right to encroach on Aboriginal title if the government can justify this in the broader public interest under s. 35 of the Constitution Act, 1982.  Id. at para. 71.

[35]

The right to control the land conferred by Aboriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders. If the Aboriginal group does not consent to the use, the government’s only recourse is to establish that the proposed incursion on the land is justified under s. 35 of the Constitution Act, 1982.   Id. at para. 76.

[36] Interestingly, the 3-part test actually applied here by the S.C.C., from Sparrow, differs from the more recent (at that time) 2-part test as later enunciated in Delgamuukw.

The test of justification has two parts, which I shall consider in turn. First, the infringement of the aboriginal right must be in furtherance of a legislative objective that is compelling and substantial.

Delgamuukw, supra note 31, at para. 161.

The second part of the test of justification requires an assessment of whether the infringement is consistent with the special fiduciary relationship between the Crown and aboriginal peoples.

Delgamuukw, supra note 31, at para. 162.

[37] Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (CanLII), at para. 77, [2014] S.C.J. No. 44, docket number 34986, released June 26, 2014. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/2014/2014scc44/2014scc44.html< citing to R. v. Sparrow, 1990 CanLII 104 (SCC), [1990] 1 SCR 1075. Released May 31, 1990. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/1990/1990canlii104/1990canlii104.html<

[38] Id. at para. 113.

[39] Although the Aboriginal group with an ownership interest has the exclusive right to occupy and use the land, it cannot be used in such a way – whether by that group or by the Crown – as to diminish the interest of future generations in that “group title” held or claimed. As stated by Lamer, C.J., when speaking of the impacts of an altered usage during a period of continuous and exclusive Aboriginal occupation, on any claim for Aboriginal title:

I would like to make it clear that the fact that the nature of occupation has changed would not ordinarily preclude a claim for aboriginal title, as long as a substantial connection between the people and the land is maintained. The only limitation on this principle might be the internal limits on uses which land that is subject to aboriginal title may be put, i.e., uses which are inconsistent with continued use by future generations of aboriginals.

Delgamuukw v. B.C., 1997CanLII 302 (SCC) at para. 154, [1997] 3 SCR 1010, released December 11, 1997. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/1997/1997canlii302/1997canlii302.html<

[40] Supra note 37, at paras. 91-2.

[41] Id. at para. 96.

[42] Delgamuukw, supra note 39, at para. 179. See also Tsilhqot’in, supra note 37 at paras. 105-6.

[43]Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (CanLII), at para. 104, [2014] S.C.J. No. 44, docket number 34986, released June 26, 2014. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/2014/2014scc44/2014scc44.html< citing to R. v. Sparrow, 1990 CanLII 104 (SCC), [1990] 1 SCR 1075. Released May 31, 1990. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/1990/1990canlii104/1990canlii104.html<

[44] Id. at para. 115. [Emphasis added].

[45] Tsilhqot’in, supra note 43, at para. 130.

[46] Id. at para. 131.

[47] Tsilhqot’in, supra note 43, at paras. 135, 151-2.

[48] Id. at para. 153. Despite its having been specifically alluded to in Delgamuukw, (as reproduced verbatim below), it is interesting to note that the S.C.C. made no mention whatsoever of, or provision for, compensation on account of the infringement. I surmise that the issue may well have been left un-pleaded, or already settled.

In keeping with the duty of honour and good faith on the Crown, fair compensation will ordinarily be required when aboriginal title is infringed. The amount of compensation payable will vary with the nature of the particular aboriginal title affected and with the nature and severity of the infringement and the extent to which aboriginal interests were accommodated.

Delgamuukw v. B.C., 1997CanLII 302 (SCC) at para. 169, [1997] 3 SCR 1010, released December 11, 1997. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/1997/1997canlii302/1997canlii302.html<

[49] Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48 (CanLII), docket number 35379, released July 11, 2014. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/2014/2014scc48/2014scc48.html?searchUrlHash=AAAAAQAbZ3Jhc3N5IG5hcnJvd3MgZmlyc3QgbmF0aW9uAAAAAAE<

[50] Tyendinaga Mohawk Council v. Brant, 2014 ONCA 565 (CanLII), docket number C57655, released July 30, 2014. Court of Appeal for Ontario. Online: >http://www.canlii.org/en/on/onca/doc/2014/2014onca565/2014onca565.html?searchUrlHash=AAAAAQAaVHllbmRpbmFnYSBNb2hhd2sgQ291bmNpbCAAAAAAAQ<

[51] Corporation Makivik c. Québec (Procureure générale) 2014 QCCA 1455 (CanLII), docket numbers 500-09-022212-112, and 500-09-022213-110 (500-17-064940-110), released August 14, 2014. Court of Appeal of Quebec. Online: >http://www.canlii.org/fr/qc/qcca/doc/2014/2014qcca1455/2014qcca1455.html?searchUrlHash=AAAAAQATY29ycG9yYXRpb24gbWFraXZpawAAAAAB<

[52] See supra note 14, and accompanying text. See also Corporation Makivik, at paras. 24, 26. The Wabauskang Nation joined Grassy Narrows First Nation in the Appeal, as their own traditional territory includes lands that run through the Keewatin tract. Alberta, British Columbia, Manitoba, Saskatchewan, and several other First Nations were also represented as Intervenors on the Appeal.

[53] Supra note 51, at para. 18

[54] Id. at paras. 2-3.

[55] Id. at para. 2.

[56] See text, supra, at The Constitution Act, 1867.

[57] Supra note 51, at para 4.

[58] Id. at paras. 12, 50. The Ontario trial court, Ontario Court of Appeal, and Supreme Court of Canada all agreed on this limitation.

[59] Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48 (CanLII) at para. 30, docket number 35379, released July 11, 2014. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/2014/2014scc48/2014scc48.html?searchUrlHash=AAAAAQAbZ3Jhc3N5IG5hcnJvd3MgZmlyc3QgbmF0aW9uAAAAAAE<

[60] Id. at 53. See also, Delgamuukw v. B.C., 1997CanLII 302 (SCC), [1997] 3 SCR 1010, released December 11, 1997. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/1997/1997canlii302/1997canlii302.html<

Where the federal Crown has already extinguished Aboriginal rights by Treaty (being a sole and exclusive Constitutional right of the federal Crown), or where there has been a surrender of Aboriginal title (which again, can only go to the federal Crown as provided by law), then the provincial Crown takes title to the land except as otherwise provided. This provincial right was reinforced in Grassy Narrows with an actual transfer of the subject lands to Ontario having occurred subsequent to the enactment of that subject Treaty 3 of 1873:

Thus, although on surrender of aboriginal title the province would take absolute title, jurisdiction to accept surrenders lies with the federal government. The same can be said of extinguishment — although on extinguishment of aboriginal title, the province would take complete title to the land, the jurisdiction to extinguish lies with the federal government. Delgamuukw, at para. 175.

For additional background on the limits to provincial taking-up of treaty lands, see also Mikisew Cree First nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69 (CanLII), [2005] 3 S.C.R. 388, released November 24, 2005. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/2005/2005scc69/2005scc69.html<

[61] See supra, note 15, The Indian Act, and accompanying text.

  1. Reserve lands are not subject to seizure under legal process.

89(1). Subject to this Act, the real and personal property of an Indian

or a band situated on a reserve is not subject to charge, pledge,

mortgage, attachment, levy, seizure, distress or execution in favour

or at the instance of any person other than an Indian or a band.

[62] Tyendinaga Mohawk Council v. Brant, 2014 ONCA 565 (CanLII) at para. 3, docket number C57655, released July 30, 2014. Court of Appeal for Ontario. Online: >http://www.canlii.org/en/on/onca/doc/2014/2014onca565/2014onca565.html?searchUrlHash=AAAAAQAaVHllbmRpbmFnYSBNb2hhd2sgQ291bmNpbCAAAAAAAQ<

[63] Id. at paras. 5-7.

[64] Id. at paras. 8-11.

[65] Id. at paras. 9-15.

[66] Id. at paras. 16-18.

[67] Tyendinaga Mohawk Council v. Brant, 2014 ONCA 565 (CanLII) at para. 19, docket number C57655, released July 30, 2014. Court of Appeal for Ontario. Online: >http://www.canlii.org/en/on/onca/doc/2014/2014onca565/2014onca565.html?searchUrlHash=AAAAAQAaVHllbmRpbmFnYSBNb2hhd2sgQ291bmNpbCAAAAAAAQ<

[68] See supra, note 61.

[69] Supra note 67, at paras. 21-31.

[70] Id. at para. 21.

[71] Id. at para 40, citing to Ordon Estate v. Grail, [1998] 3 S.C.R. 437, at paras. 44-45.

[72] Id. at para 61, citing with approval to Delgamuukw v. B.C., 1997 CanLII 302 (SCC) at para. 115, [1997] 3 SCR 1010, per Lamer, C.J. Released December 11, 1997. Court of Appeal for Ontario. Online: >http://www.canlii.org/en/ca/scc/doc/1997/1997canlii302/1997canlii302.html<

See also Delgamuukw, at para. 125:

The content of aboriginal title contains an inherent limit that lands held pursuant to title cannot be used in a manner that is irreconcilable with the nature of the claimants’ attachment to those lands. This limit on the content of aboriginal title is a manifestation of the principle that underlies the various dimensions of that special interest in land — it is a sui generis interest that is distinct from “normal” proprietary interests, most notably fee simple.

See also supra note 60. The Ontario Court of Appeal also cited Tsilhqot’in for delineating the content and scope of Aboriginal title, which leaves only a residual interest to the Crown:

In simple terms, the title holders have the right to the benefits associated with the land — to use it, enjoy it and profit from its economic development. As such, the Crown does not retain a beneficial interest in Aboriginal title land.

Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (CanLII) at para. 70, [2014] S.C.J. No. 44, docket number 34986, released June 26, 2014. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/2014/2014scc44/2014scc44.html<

Also related to these actual “title rights”, are certain “rights short of title”, as succinctly identified in Delgamuukw by Lamer, C.J.:

These rights will likely be intimately tied to the land and may permit a number of possible uses. However, unlike title, they are not a right to the land itself. Rather, as I have suggested, they are a right to do certain things in connection with that land. If, for example, it were established that the lands near those subject to a title claim were used for hunting by a number of bands, those shared lands would not be subject to a claim for aboriginal title, as they lack the crucial element of exclusivity. However, they may be subject to site-specific aboriginal rights by all of the bands who used it. This does not entitle anyone to the land itself, but it may entitle all of the bands who hunted on the land to hunting rights. Hence, in addition to shared title, it will be possible to have shared, non-exclusive, site-specific rightsDelgamuukw, at para. 159.

[73] Corporation Makivik c. Québec (Procureure générale) 2014 QCCA 1455 (CanLII), docket numbers 500-09-022212-112, and 500-09-022213-110 (500-17-064940-110), released August 14, 2014. Court of Appeal of Quebec. Online: >http://www.canlii.org/fr/qc/qcca/doc/2014/2014qcca1455/2014qcca1455.html?searchUrlHash=AAAAAQATY29ycG9yYXRpb24gbWFraXZpawAAAAAB< See also James Bay and Northern Quebec Native Claims Settlement Act, S.C. 1976-77, c. 32. Online: >http://www.canlii.org/en/ca/laws/stat/sc-1976-77-c-32/latest/sc-1976-77-c-32.html<

[74] Id. Corporation Makivik, at para. 10. See also An Act Approving the Agreement Concerning James Bay and Northern Québec, CQLR c C-67. Online: >http://www.canlii.org/en/qc/laws/stat/cqlr-c-c-67/latest/cqlr-c-c-67.html<

[75] The Treaty is referred to as a “Convention” in the original French text of this judgement. Chapter 24 of that Treaty – Hunting, Fishing and Trapping, covers over 35 pages and is further referred to in this post as “Chapter 24”. See e.g. Infra, note 86 and accompanying text.

[76] Corporation Makivik, supra note 74, at para. 11-13.

[77] Id. at paras. 14-17.

[78] Id. at paras. 21, 30.

[79] Corporation Makivik c. Québec (Procureure générale) 2014 QCCA 1455 (CanLII) at paras. 32-34, docket numbers 500-09-022212-112, and 500-09-022213-110 (500-17-064940-110), released August 14, 2014. Court of Appeal of Quebec. Online: >http://www.canlii.org/fr/qc/qcca/doc/2014/2014qcca1455/2014qcca1455.html?searchUrlHash=AAAAAQATY29ycG9yYXRpb24gbWFraXZpawAAAAAB<

[80] Id. at para. 35.

[81] Id. at para. 36.

[82] Id. at para. 37.

[83] Id. at paras. 38-41.

[84] Corporation Makivik c. Québec (Procureure générale) 2014 QCCA 1455 (CanLII) at paras. 52-45, docket numbers 500-09-022212-112, and 500-09-022213-110 (500-17-064940-110), released August 14, 2014. Court of Appeal of Quebec. Online: >http://www.canlii.org/fr/qc/qcca/doc/2014/2014qcca1455/2014qcca1455.html?searchUrlHash=AAAAAQATY29ycG9yYXRpb24gbWFraXZpawAAAAAB<

[85] Id. at paras. 51-57.

[86] Id. at para. 67.

[87] Id. at para. 71.

[88] Delgamuukw v. B.C., 1997 CanLII 302 (SCC) at para. 168, [1997] 3 SCR 1010, released December 11, 1997. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/1997/1997canlii302/1997canlii302.html<

The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases, when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title. Of course, even in these rare cases when the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands.

[89] Corporation Makivik c. Québec (Procureure générale) 2014 QCCA 1455 (CanLII) at paras. 87-93, docket numbers 500-09-022212-112, and 500-09-022213-110 (500-17-064940-110), released August 14, 2014. Court of Appeal of Quebec. Online: >http://www.canlii.org/fr/qc/qcca/doc/2014/2014qcca1455/2014qcca1455.html?searchUrlHash=AAAAAQATY29ycG9yYXRpb24gbWFraXZpawAAAAAB<

[90] Id. at paras. 95-99. See also supra, note 17 and accompanying text.

[91] Id. at paras. 100-107.

[92] Id. at paras 108-9.

[93] Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (CanLII), [2014] S.C.J. No. 44, docket number 34986, released June 26, 2014. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/2014/2014scc44/2014scc44.html<

[94] Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48 (CanLII), docket number 35379, released July 11, 2014. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/2014/2014scc48/2014scc48.html?searchUrlHash=AAAAAQAbZ3Jhc3N5IG5hcnJvd3MgZmlyc3QgbmF0aW9uAAAAAAE<

[95] Tyendinaga Mohawk Council v. Brant, 2014 ONCA 565 (CanLII), docket number C57655, released July 30, 2014. Court of Appeal for Ontario. Online: >http://www.canlii.org/en/on/onca/doc/2014/2014onca565/2014onca565.html?searchUrlHash=AAAAAQAaVHllbmRpbmFnYSBNb2hhd2sgQ291bmNpbCAAAAAAAQ<

[96] Corporation Makivik c. Québec (Procureure générale) 2014 QCCA 1455 (CanLII), docket numbers 500-09-022212-112, and 500-09-022213-110 (500-17-064940-110), released August 14, 2014. Court of Appeal of Quebec. Online: >http://www.canlii.org/fr/qc/qcca/doc/2014/2014qcca1455/2014qcca1455.html?searchUrlHash=AAAAAQATY29ycG9yYXRpb24gbWFraXZpawAAAAAB<

[97] Delgamuukw v. B.C., 1997 CanLII 302 (SCC) at para. 124, [1997] 3 SCR 1010, released December 11, 1997. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/1997/1997canlii302/1997canlii302.html<

In conclusion, the content of aboriginal title is not restricted to those uses which are elements of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right.

[98] Id. at para. 152.

[99] Id. at para. 186.

[100] R v. Van der Peet, 1996 CanLII 216 (SCC) at para. 31, [1996] 2 SCR 507, released August 21, 1996. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/1996/1996canlii216/1996canlii216.html?searchUrlHash=AAAAAQAQciB2IHZhbiBkZXIgcGVldAAAAAAB <

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