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ADDRESSING CONFLICT WITH THE CROWN - A First Nation Policy Perspective
ADDRESSING CONFLICT WITH THE CROWN - A First Nation Policy Perspective
ADDRESSING CONFLICT WITH THE CROWN - A First Nation Policy Perspective
for the
Indigenous Bar Association’s
20th Annual Fall Conference
October 23‐25, 2008
Toronto, Ontario
Trudeau & Chrétien Legacy
s. 37 FMC’s on Aboriginal Matters
S. 35 was only included in constitution due to pressure
from Aboriginal groups along with public support.
S. 35 was re‐introduced into draft constitution with the
word “existing” added to the clause at the insistence of
Western Premiers. The intent was to limit or restrict
future interpretations of the clause.
S. 37 provided for a First Ministers’ Constitutional
Conference on Aboriginal Matters within 1 year of the
constitution coming into force.
s. 37 FMC’s on Aboriginal Matters
S.37 provided that the purpose of the FMC was to
“identification and definition” of what rights would be
included in the constitution.
FMC 1983 was held in the spring with representatives
of the four National Aboriginal Organizations (AFN,
ITC, NCC, MNC).
FMC 1983 agreed on a constitutional amendment that
provided for further FMC’s on Aboriginal Matters,
which were held in 1984, 1985 and 1987.
s. 37 FMC’s on Aboriginal Matters
The amended s. 37 process changed from explicitly
identifying and defining what rights would be
included in the constitution to merely having “agenda
matters that directly affect the aboriginal peoples of
Canada”.
Despite having a number of agenda items, the
amended s. 37 process focused on whether the right to
self‐government was an inherent right vs. a contingent
right, subject to Crown agreement.
The FMC’s ended in 1987 without any agreement
between the NAO’s and First Minister’s.
Chronology of s. 35 Containment
1990 SCC Sparrow decision sets out justification framework
for assessing assertion of s. 35 rights.
1992 Charlottetown Accord rejected by referendum.
1995 federal government unilaterally issues an “Aboriginal
Self‐Government “ policy that sets out the scope and
content of negotiating delegated self‐government,
although the government refers to the policy as an
“Inherent Right Policy”.
1996 SCC Van der Peet decision narrows definition of
Aboriginal rights "... to constitute an ancestral right, an
activity must be an element of a custom, practice or
tradition forming an integral part of a distinct culture of the
Aboriginal group which claims the right in question”
Chronology of s. 35 Containment
1996 Final Report & Recommendation of the Royal
Commission on Aboriginal Peoples (RCAP) is released
and subsequently ignored and shelved by the federal
government.
1997 federal government tries to pass Indian Act
Optional Modification Act, it dies when election is
called.
1997 SCC Delgamuukw decision sets out legal
principles and test for Aboriginal Title. Canada ignores
the ruling and maintains CCP.
Chronology of s. 35 Containment
2000‐2003 Canada tries to pass First Nations
Governance Act over widespread opposition, Bill dies
with prorogation of Parliament.
2003 Canada proclaims the Specific Claims
Resolution Act.
2004 SCC Haida/Taku decisions on Crown’s duty to
consult and duty to accommodate on assertion of
Aboriginal Rights.
2005 SCC Mikisew decision adds Treaty Rights to
Crown duty to consult/accommodate.
Chronology of s. 35 Containment
Other recently passed federal legislation affecting First
Nations involves a number of areas, including
commercial and industrial development on reserve,
land management, oil and gas and moneys
management, taxation and financial and statistical
management.
Since the adoption of s. 35, the Crown has tried to take
advantage of the legal and political uncertainty of the
scope and content of Aboriginal & Treaty rights by
obtaining concessions through agreements.
Chronology of s. 35 Containment
Through arbitrary self‐government and land claims
policies the federal Crown has developed self‐serving
negotiation positions, which are offered to First
Nations as a “take it or leave it” proposition.
In negotiations the Crown governments routinely take
advantage of the poverty and tied funding of First
Nations knowing the cost of launching and sustaining
litigation asserting, proving & defending s. 35 Rights is
beyond the ability of most First Nations.
Reconciliation = Surrender
The SCC has in numerous cases referred to reconciliation
as the basic purpose of section 35, including the following
statements:
“S.35(1) provides the constitutional framework through
which Aboriginal peoples who lived on the land in distinctive
societies with their own practices, traditions and culture are
acknowledged and reconciled with the sovereignty of the
Crown.” (Van der Peet); and,
“Treaties serve to reconcile pre‐existing Aboriginal
sovereignty with assumed Crown sovereignty, and to define
Aboriginal rights guaranteed by s.35 of the Constitution Act,
1982. Section 35 represents a promise of rights recognition.
... This promise is realized and sovereignty claims reconciled
through the process of honourable negotiation.” (Haida);
RCAP Recommendation 1.16.2
The SCC while noting the RCAP report in some
instances fails to address the RCAP recommendation
regarding the assertion of Crown sovereignty:
[that the] Federal, provincial and territorial
governments further the process of renewal by
(a) acknowledging that concepts such as terra nullius
and the doctrine of discovery are factually, legally and
morally wrong;
(b) declaring that such concepts no longer form part of
law making or policy development by Canadian
governments;
RCAP Recommendation 1.16.2
(c) declaring that such concepts will not be the basis of
arguments presented to the courts;
(d) committing themselves to renewal of the
federation through consensual means to overcome the
historical legacy of these concepts, which are
impediments to Aboriginal people assuming their
rightful place in the Canadian federation; and
(e) including a declaration to these ends in the new
Royal Proclamation and its companion legislation.
Courts are Part of the Crown
While the SCC decisions have been more generous in
their interpretation of the scope and content s. 35
rights than Crown governments, the evidentiary
requirements to meet the legal tests and the court
costs are largely prohibitive for most First Nations.
Despite the s.35 “recognition and affirmation” of
Aboriginal and Treaty rights in the constitution, the
legislative and policy trend of the federal government
since 1982 has been to deny the inherent right to self‐
government in favour of delegated authority to bands.
Reconciliation = Surrender
In comprehensive claims agreements the Crown
governments seek assimilation of First Nations and
extinguishment of Aboriginal Title and exchange of
Aboriginal rights for more limited “Treaty” rights.
In comprehensive claims agreements the Crown seeks
a “non‐assertion of rights” clause.
In specific claims agreements the Crown refuses to
return land offering only cash as settlement. This has
been rejected by Six Nations, Tyendinaga &
Kahnawake.
First Nations‐Crown Conflicts
First Nations have had a variety of responses to Crown
avoidance and denial of s. 35 Aboriginal/Treaty Rights.
There are the high profile conflicts between First
Nation peoples and the Crown governments. Some of
these are Lubicon Lake, Oka, Ipperwash, Gustafson
Lake, Barriere Lake, Burnt Church, Grassy Narrows,
Caledonia, and more recently KI (Big Trout Lake) and
the Ardoch Non‐Status Algonquins.
The last two examples saw the leadership going to jail
for ignoring injunctions against them.
Rules of Engagement
When First Nations assert they have rights beyond
what Crown governments are prepared to negotiate
within policy frameworks, the police or military force
has been used to impose the Crown government’s
interpretation of the limit of s. 35 rights.
So as we have seen the assertion of First Nation rights
can lead to criminal charges and convictions and not
just civil proceedings.
Many First Nations, particularly grassroots people, do
not understand the complexities of Canada’s
Aboriginal constitutional law.
Rules of Engagement
The SCC decisions in Haida/Taku/Mikisew have now
set out the legal principles and guidelines for the duty
to consult & if necessary accommodate First Nations
when an activity or project may potentially affect First
Nation rights/interests in traditional territory.
The SCC has placed the “burden of proof” on First
Nations who assert s. 35 rights.
Most First Nations have not had the financial support
to professionally document and substantiate their
historic and contemporary connection to their lands to
meet the legal standards of proof.
Rules of Engagement
Some provincial governments like Quebec and
Ontario have issued post‐Haida interim
consultation/accommodation guidelines.
The federal government has issued post‐Haida
internal consultation guidelines to their officials,
attempting to limit their responsibility to federal
projects or activities.
First Nations are still not properly funded to prepare
for consultations or accommodation negotiations with
Crown governments or Third Parties.
Capacity Building
First Nation (bands) need funding to organize
internally to manage consultation requests from
Crown governments and/or Third Parties.
First Nations need in‐house or outside consultants to
provide independent technical/scientific advice on
natural resource management/regional planning
issues.
First Nations need to develop modern methods of
keeping track of consultations ie. Developing a
database to track the status of consultations.
Information Management
community knowledge
government reports
researchers
industry
} letters
maps } decision
academics databases
stories
interest groups
interpretation
Conclusion
To reduce the threat of First Nations‐Crown conflicts
over natural resource developments/regional planning
on Aboriginal Title/Treaty Territories, First Nations
need support for capacity building and information
management/interpretation.
Crown governments need to revise policies and laws to
be consistent with the SCC legal principles and
guidelines set out in recent case law, including
Delgamuukw and Haida/Taku/Mikisew. Third Parties
with an interest should be part of the process.
Conclusion
The conditions for “reconciliation” between First
Nations and the Crown won’t be in place until the
federal self‐government and land claims policies are
revised to be consistent with the law.
Canada’s domestic policy and law should be measured
against the international standards set out in the U.N.
Declaration on the Rights of Indigenous Peoples and
the gaps identified and reported to the relevant U.N.
bodies and agencies.