ABORIGINAL LAWPrepared by:
H.W. Roger Townshend
Tel: (416) 981-9454 • Fax: (416) 981-9350
Olthuis, Kleer, Townshend LLP
312- 229 College St
Toronto, ON M5T 1R4
The basic test for establishing an Aboriginal right remains that established in 1996 by a trilogy of cases: R. v. Van der Peet,  2 S.C.R. 507, R. v. N.T.C. Smokehouse Ltd,  2 S.C.R. 672, and R. v. Gladstone,  2 S.C.R. 723. To support an Aboriginal right, an activity must have continuity with a precontact activity which was integral to the distinctive culture of the relevant Aboriginal people. The constitutional protection of Aboriginal rights means that if a Crown action or legislation results in a prima facie infringement of a treaty or Aboriginal right, the Crown must "justify" that infringement if the action or legislation is to stand and be applicable.
Two BC cases this year relate to claims of Aboriginal rights to commercial fishing. This issue had been discussed in the 1996 trilogy — it is possible to establish a commercial fishing right, but it requires establishing a practice of a different character and scope than that required to establish a right to fish for food, social and ceremonial purposes.
In Lax Kw'alaams Indian Band v. Canada (A.G.),  S.C.C. 56, the plaintiffs failed to establish a right to fish commercially. The trial judge had found that trade in fish and fish products, with the exception of eulachon grease, was "low volume, opportunistic, irregular, [and] for [food, social and ceremonial] purposes". For the Supreme Court of Canada, this finding was fatal to the claim for a commercial fishing right (although the trial judge thought that trade in eulachon grease might have been integral to the distinctive culture of the plaintiffs, the right had not been pleaded in a species specific way, and so that question was never considered). Generally speaking, Aboriginal rights are not species specific, but in this case the facts were that it was only eulachon that had been traded. The Court specifically noted that if the evidence was that the ancient practice had been to harvest and trade whatever species were available, this would support a general commercial right for all species. Lax Kw'alaams also restated the test for establishing an Aboriginal right in a way that might be taken to suggest that regional and economic fairness should be considered in the course of defining the right. For this, the Court referred to R. v. Gladstone, which had suggested that regional and economic fairness might be a factor in justifying an infringement of Aboriginal rights, not a factor in the definition of the right. Perhaps this is what Lax Kw'alaams means.
The Supreme Court of Canada recently decided a leave to appeal application in Ahousaht Indian Band and Nation v. Canada (A.G.), 2011 BCCA 237. At trial in Ahousaht, the plaintiffs succeeded in establishing a right to fish and to sell the fish, although the trial Court stopped short of considering this to be a full scale "industrial" right, because the trade was not for the purpose of accumulating wealth. The trial Court was satisfied that the right should not be construed as being species-specific, since the evidence about the way of life was of a seasonal round, where species gained or lost importance according to their abundance. The trial Court therefore characterized the activity as fishing, considering it unduly restrictive to limit this to specific species. The trial Court also ruled that it was not appropriate to disqualify trade between kin (which often has a very wide meaning in Aboriginal cultures) as being commercial trade, since, for example, there was evidence that sometimes marriages were arranged precisely to facilitate trade. As well, the trial Court did not disqualify "gifts" – that is, gifts which were intended to be reciprocated – as trade, viewing this as a polite form of trade. The majority of the BC Court of Appeal accepted all these rulings. On leave to appeal, the Supreme Court of Canada remanded the case back to the BC Court of Appeal to be decided in accordance with Lax Kw'alaams.
One aspect of the ruling that deserves further attention as the case continues is the "accumulating wealth" issue. The trial Court had limited the scope of the commercial right since the ancient trade had not been for the purpose of accumulating wealth. That has not been part of the test for Aboriginal rights. The leading case on Aboriginal commercial harvesting rights is R. v. Gladstone, which relied on the amount and regularity of the trade as supporting a commercial harvesting right, limited only by the justified infringement doctrine. Gladstone did not require that the purpose of trade be the accumulation of wealth.
In Ahousaht, the BC Court of Appeal did vary the trial judgement on one point – it carved out geoduck clams from the Aboriginal harvesting right on the basis that it had only become practical to harvest this particular species with modern technology. This aspect of the decision is hard to reconcile with the established principle (expressed most recently in Lax Kw'alaams) that the Aboriginal right may evolve as the method of harvesting or the available species change. Perhaps the BC Court of Appeal will see fit to revisit this part of the decision on its reconsideration.TREATY AND STATUTORY INTERPRETATION
The basic principles of Aboriginal treaty interpretation are well established: 1) a treaty represents an exchange of solemn promises between the Crown and Aboriginal parties; 2) the honour of the Crown is always at stake, and no sharp dealings will be sanctioned; 3) ambiguities or doubtful expressions must be resolved in the favour of the Aboriginal party; 4) evidence other than the written text of the treaty must be considered, even in the absence of ambiguity on the face of the written text; and 5) treaties were intended to reconcile the goals and interests of the parties to the treaty at the time and should be interpreted in a way consistent with that. Many of these principles have been applied to the interpretation of statutes concerning Aboriginal peoples as well, and in fact some of these principles originated in statutory interpretation.
Historic treaties have been interpreted quite liberally. For example, in the leading case R. v. Marshall,  3 S.C.R. 456, a treaty term that on its face forbade the Aboriginal party from trading except at British "Truck houses" was found to imply a treaty right to fish and to trade fish.
Two recent trial level cases appear to have departed substantially from these principles of interpretation.
In the first of these, Keewatin v. Minister of Natural Resources,  O.N.S.C. 4801, the Court was faced with questions about Aboriginal harvesting rights and their infringement that required considering the interaction of the interpretation of Treaty 3, a historic dispute about the boundary of the Province of Ontario and its resolution, and the federal-provincial division of powers.
The written text of Treaty 3 provides a guarantee of harvesting rights throughout the treaty area, with the exception of lands which have been "taken up" for settlement or other purposes by the Government of Canada. However, after a lengthy analysis of the events leading up to Treaty 3, the goals, interests and knowledge of the parties to the treaty, and the treaty negotiations, the Court found that the Aboriginal parties clearly had been promised orally an unlimited and perpetual guarantee of harvesting rights. On the basic principles of treaty interpretation, this finding would usually lead to a reading out of the "taking up" clause from the treaty, leaving an unlimited harvesting right. This is not what Keewatin ruled, although in fairness to the Court, the Aboriginal parties had not asked for such a ruling. Rather, the Court ruled that the written clause in Treaty 3 was to be interpreted strictly to require Canada to authorize any taking up of land by Ontario.
Understanding the significance of this requires some background. At the time of Treaty 3, there was an ongoing dispute between Canada and Ontario about the location of the western boundary of Ontario, and about their respective jurisdictions. This dispute led to some of the leading early Aboriginal law jurisprudence. The result was that for the most part, Ontario's ownership of lands and resources was affirmed. Keewatin was a case that tested the limits of this, and behind the abstract legal question is a challenge to the validity of Ontario's forest management system.
The resolution of the historic federal-provincial dispute involved an 1891 statute that authorized an agreement between Canada and Ontario that provided that Treaty 3 harvesting rights did not apply on lands "taken up" by Ontario. This statute and agreement dealt with about 2/3 of the Treaty 3 area. The remainder of the Treaty 3 territory was added to Ontario in 1912, by legislation that said nothing about "taking up" lands, or about the impact of that on treaty harvesting rights. It was in this area added in 1912 that the dispute in the Keewatin case arose. However, the Court needed to analyze the broader context in order to make the rulings it needed to make.
The Court was of the view that the 1891 statute "amended" Treaty 3 in respect of the lands to which it applied, so that there Ontario could "take up" lands and thus make Treaty harvesting rights inapplicable. For the lands added to Ontario in 1912, the Court found no legislative intent to "amend" Treaty 3, and so applied the written text of Treaty 3 strictly. The result is that, in those lands, Ontario is not empowered by the treaty to unilaterally "take up" lands and thereby limit treaty rights. To do this Ontario needs Canada to cooperate by authorizing a "taking up" under the treaty (presumably, such an action by Canada would be subject to the "justified infringement" test if the impact rose to the level of a treaty infringement). What Ontario can do on those lands is issue land authorizations that do not have the effect of substantially interfering with treaty rights. A land use that would substantially interfere with treaty rights requires authorizations from both Canada and Ontario.
For this interpretation of Treaty 3, the Court relied on what it viewed as Canada's intention at Treaty 3 — to interpose itself to be able to protect treaty harvesting rights should the issues in dispute at the time be resolved in Ontario's favour. It is problematic that the Court relied on what was Canada's unilateral and secret intention to interpret the treaty (the intention of the Aboriginal parties, as found by the Court, was that no government could abridge their treaty rights). It is also problematic that the Court expressed the view that Canada could unilaterally "amend" the treaty.
The decision of the Court is somewhat puzzling since the Court could have arrived at the same result without so straining the established principles of treaty interpretation. The Court could have ruled, without engaging these problems, that the "taking up" clause was to be read out of the treaty entirely, but that the 1891 statute (partially) extinguished the treaty right, so that it did not apply on lands "taken up" by Ontario in the 1891 area. This is precisely the result the Court came to for such lands. For the 1912 lands, there would be an unlimited treaty right, but that would be subject to "justified infringement" on established constitutional jurisprudence. On established jurisprudence (R. v Morris,  S.C.C. 59), it would only be Canada which had the jurisdiction to justifiably infringe a treaty right on a division of powers analysis. This is the same result that the Court came to for those lands.
Keewatin is significant because it limits Ontario's powers to manage lands and resources, and interposes Canada into the situation. However, an application of R. v. Morris would lead to the same result, although Ontario is not willing to admit that. Keewatin needs to be read very closely before applying it because of the very specific and unique treaty and legislative history behind it. Keewatin is also a danger since it could be applied in ways that undermine well-established principles of treaty interpretation.
Another case, Ross River Dena Council v. Canada (A.G.),  Y.K.S.C. 4, involved the interpretation of an 1870 constitutional statute which added a huge tract of land to Canada, and provided that Aboriginal claims "will be considered and settled in conformity with the equitable principles which have uniformly governed the British Crown in its dealings with the Aborigines". There was general agreement that this included making treaties before opening the land for settlement. The issue before the Court was whether or not this was a binding legal obligation.
The Court found that the provision was not legally enforceable. The entirety of the evidence before the Court was given by a legal historian, who expressed the view that at the time, Parliament would not have understood this provision to create legally enforceable rights. The fact that Canada indeed did negotiate treaties was thought of as a matter of "executive grace" rather than a legal requirement. The Court accepted this evidence, and, almost exclusively on the strength of this, ruled the provision not to be enforceable.
The Court also discussed principles of statutory interpretation. Despite some discussion of the differences in statutory interpretation principles applicable to ordinary legislation and to constitutional texts, the Court essentially employed the general statutory interpretation principles (i.e., the ordinary meaning of the text, the legislative intent, and compliance with legal norms), and gave predominant weight to the original intention of Parliament. This is hard to reconcile with established principles of constitutional interpretation. In contrast to the principles used for interpreting ordinary legislation, the interpretation of constitutional statutes is usually thought to require a "dynamic approach", not "tied to the framer's original understanding", but "permitted to evolve in response to both linguistic and social change".
But the real nature of the problem actually lies deeper. Ross River in fact noted that lawyers and historians use the past for different purposes: "The lawyer uses the past to solve pressing legal problems in the present, whereas the historian is focused on understanding how people solved their problems in the past."
Ross River privileged the "historical" side of this dichotomy. In so doing, in my view, it misunderstood the nature of the interaction between law and history. In dealing with a historic dispute the role of the Court should not be to try to transport itself back in time to give the judgement that a Court would then have given. The law changes, and changes for good reasons. It would be inappropriate for a Court to ignore this reality, and solve the problem the way the law would have done in the past. In my view, the Ross River Court asked itself the wrong historical question — it should have tried to "use ... the past to solve pressing legal problems in the present", rather than resolve the issue the way "people solved their problems in the past".
For example, to shift the context slightly, it is probably true that at the time the historic treaties were signed, the Courts would not have enforced them. Crown obligations to Aboriginal people were often thought of as a "political trust" — a duty in the discretion of the Crown, but unenforceable by a Court. This doctrine was alive until it was decisively rejected by the Supreme Court of Canada in Guerin v. R. in 1984. That case was the impetus for a transformation of Aboriginal law. The Ross River methodology would seek to undo that transformation, and reinstate the law as it was thought to exist historically.
Courts now take a different approach to Crown obligations than they did historically. In interpreting treaties today, Courts certainly rely on historical evidence about the intentions and interests of the parties. This is an important part of understanding the context of treaties and is an appropriate use of the historian's approach. But Courts are not bound by the ideas the Crown parties to the treaties had about whether or not a Court would enforce the treaties at the time. Rather, modern Courts are faced with treaties containing promises made which were intended to be relied upon, and which were intended to be honoured. The Court may need historical guidance to understand precisely what the promises meant. But Courts now proceed on the basis that the Crown actually intended to keep its treaty promises, regardless of what lawyers might have said at the time about whether or not a Court could have forced the Crown to honour its treaty promises. Anything less would amount to approving deceit by Crown officials. Given a Crown intention to honour its promises and reliance by the Aboriginal party on such promises, a modern Court will enforce the treaty promises as it can best understand them.
Although Ross River was about statutory (in fact constitutional) interpretation, the type of analysis of legal history it undertook could be done equally for treaties. Ross River itself also noted that its analysis cast doubt on the justiciability of the Royal Proclamation, notwithstanding its inclusion in the Canadian constitution.
Having said all that, the Court did not explore the textual substance of the provision at issue. The Court simply proceeded on the basis that on its face the meaning was plain, but that the plain meaning was unacceptable, and required being tempered with the benefit of more context. However, it is not so clear that the meaning is plain. Conceivably, "will be considered and settled in conformity with the equitable principles which have uniformly governed the British Crown in its dealings with the Aborigines" is unenforceably vague. Such a ruling would not have been nearly as problematic for the development of jurisprudence.DUTY TO CONSULT AND ACCOMMODATE
The duty to consult and accommodate Aboriginal people when decisions are made that may affect their rights, interests or way of life has become a key principle of Aboriginal law, which has resulted in a large and growing body of law.
It has long been established that if a Crown action or legislation results in a prima facie infringement of a treaty or Aboriginal right, the Crown must "justify" that infringement if the action or legislation is to stand and be applicable. Part of the "justification" analysis includes an inquiry into whether the Aboriginal people in question were properly consulted.
The Crown also has a duty to consult with and accommodate Aboriginal people in respect of decisions that may affect lands to which they are asserting rights, even if those rights have not yet been "proven". (Haida Nation v. B.C. (Minister of Forests),  3 S.C.R. 511). This duty flows from the Honour of the Crown, which has become a key concept in Aboriginal law, leading to different rights and duties in different circumstances. The duty to consult and accommodate Aboriginal people is in fact independent of their substantive Aboriginal or treaty rights (Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage),  3 S.C.R. 388). The duty is both procedural (the Crown must follow the appropriate consultation procedures), and substantive (the Crown must make a decision which accommodates Aboriginal concerns, balancing them fairly with other societal interests).Threshold Issues About the Duty
The duty to consult and accommodate arises when the Crown knows or ought to know that Aboriginal rights or title may exist, and is considering action that may adversely affect such rights or title. To be meaningful, consultation and accommodation has to take place at the level of strategic resource use planning, not just at an implementation level. The Courts have also made clear that the threshold for triggering a duty to consult and accommodate is quite low, and that any impact on Aboriginal interests need not be obvious.The Content of the Duty
In sketching out the content of the duty of consultation, in Haida Nation, the Court ruled that there was a spectrum of consultation activities that might be required, ranging from discussing decisions to be made to securing the consent of the relevant Aboriginal group.
At one end of the spectrum of consultation and accommodation are cases where the "claim to title is weak, the Aboriginal right limited or the potential for infringement minor". In such cases, the duty would amount to a requirement to "give notice, disclose information, and discuss any issues raised in response to the notice". Even at this level, however, the discussions have to be undertaken "in good faith, and with the intention of substantially addressing" Aboriginal concerns.
At the high end of the spectrum, where the claims were relatively strong, and the potential adverse effects of the decision in question were relatively serious, formal participation in the decision-making process and the provision of written reasons might be required. For serious impacts on proven rights, consent of the Aboriginal group might be required.
There is a large and rapidly growing body of jurisprudence on the duty to consult and accommodate. By now, the general principles are fairly stable, and most cases turn on their facts. In 2011, however, one case brought some new issues to the fore.
West Moberly First Nations v. B.C. (Chief Inspector of Mines),  B.C.C.A. 247, leave to appeal refused Feb 23, 2012 (SCC), was about the duty to consult and accommodate in the context of the impacts of bulk sample mining exploration on a very fragile herd of caribou. The First Nation had a Treaty 8 harvesting right, although the First Nation had not hunted these caribou for some years due to the herd's vulnerability.
One issue discussed was how cumulative impacts are to be considered — that is, how should past impacts be considered, and how should the possibility of future impacts be considered? The Court came to a split decision, but all judges agreed that, while the consultation should be directed at the specific project and its impacts, past impacts were an important part of the context which could not be ignored. They also all agreed (for different reasons) that accommodation should not extend to trying to repair past impacts. For future impacts, the Court split 2:1 — the majority were of the view that it would be short-sighted to ignore even the possibility that advanced mining exploration could lead to full-scale mining.
Another issue raised by West Moberly is the need for reasons in a consultation process if the requests of an Aboriginal party are not accepted. All judges seemed to be of the view that, if Aboriginal requests are not accepted, a reasonable consultation process should provide an explanation of why such requests were either not necessary, impractical or unreasonable. The Court split 2:1 on whether the record of consultation met this standard, the majority finding that it did not.
The requirement of reasons is an important addition to the duty to consult and accommodate. Without it, consultation processes could become merely formalistic exercises of listening. Just listening long enough does not fulfil the duty — the decision maker needs to seriously consider and engage with what the Aboriginal group is saying. Reasons are a way of making sure this is so.CHARTER RIGHTS AND FEDERALISM
In Alberta (Aboriginal Affairs and Northern Development) v. Cunningham,  S.C.C. 37, the Supreme Court of Canada considered a challenge to the constitutional validity of the Alberta Métis Settlements Act. The applicants were members of a Métis community who were entitled to register as Indians under the Indian Act, and did so in order to obtain medical benefits. This registration, however, disqualified them from membership in their Métis community, and they challenged the section of the Métis Settlements Act which had this effect, as infringing their equality rights. The Court ruled that the Métis Settlements Act was an ameliorative program which was shielded by s. 15(2) of the Charter from equality challenges.
What is remarkable is that the case does not discuss at all whether or not the Métis Settlements Act is valid on a division of powers analysis. While the matter is not settled, it would seem that Métis are "Indians" within the meaning of s. 91(24) of the Constitution Act, 1867, and thus within exclusive federal jurisdiction. The Métis Settlements Act includes provisions about structures of Métis community governance, Métis lands, and Métis community membership. If Métis are s. 91(24) "Indians" the Métis Settlements Act is plainly unconstitutional. The Supreme Court of Canada, however, did not analyze or even mention this.