Aboriginal Law and Equality in Canada

The recent decision of the Supreme Court of Canada in Alberta (Aboriginal Affairs and Northern Development) v. Cunningham 2011 SCC 37 strengthens the trend of the Supreme Court of Canada's trend to found its approach to aboriginal issue in both the equality provisions of the Canadian Chart of Rights and Freedoms as well as s. 35 of the Constitution Act, 1982. While this is a course of action that will cause purists on both sides of the aboriginal law debate to grumble ultimately it is a pragmatic result which sends a clear message to the Crown that the government has great freedom to act to relieve the circumstances of aboriginal people in Canada. More generally, this case sends a clear message that the Supreme Court of Canada is not open to the concept of "reverse discrimination" taking hold in Canada in such a way as to undermine the efforts of the government to alleviate the circumstances of disadvantaged people.

In Cunningham a challenge was mounted to the provisions of an Alberta statute that gave effect to a settlement with a group of Metis people. The core complaint was simple: the settlement and the legislation prohibited persons who were status Indians from participating in the settlement -- the plaintiff complained that this exclusion was discriminatory and so offended s. 15 of the Charter. The Alberta Court of Appeal agreed with this proposition and struck the offending exclusion down. The Supreme Court of Canada granted leave and ultimately upheld the exclusion on the basis that the settlement with the Metis was an ameliorative program protected by s. 15(2) of the Charter.

The reality for the Metis is that they largely fell through the cracks when it came to protecting a land base for them in the prairies. Indeed, the provisions of Numbered Treaties dealing with the Metis (or Half-Breds as they were called) largely seem to be directed at ensuring that they did not obtain a landbase and were excluded from the protections granted to Indians. As such Metis were seeing as having had to make a choice -- choose the Indian route and be assimilated into the regime governing Indians or choose the other option and receive an immediate benefit that was followed by assimilation into the generally applicable legal regime. What this approach did not contemplate was what in fact happened, namely that the Metis chose not to become "Indians" but did not assimilate into the non-aboriginal population. As result a culturally and economically distinct aboriginal population came into being that did not have even the modicum of protections offered to Indians in respect of their reserve lands.

Alberta entered into the settlement with the Peavine Metis Settlement largely as a means of starting to fill the gap created by this scenario. However, both the Metis and the Alberta government recognized that there was likely an overlap between the pool of apparently eligible Metis and persons who held status as Indians given the realities of aboriginal life on the prairies. Each party had incentives to address this overlap. The Metis were clearly concerned that the benefits they were receiving be diluted, particularly to the benefit of people they viewed (rightly or wrongly) as having received benefits through the Federal system. Alberta was similarly concerned to keep the beneficiary population as small as possible so as to keep the quantum of the settlement down. Alberta also likely did not want to confer an "aboriginal benefit" on aboriginal people who the provinces typically viewed as a Federal responsibility (ie the "Indians"). As a result of this concern the bar on status Indians was introduced.

Ultimately the Supreme Court of Canada held that the Peavine Metis Settlement and its supporting legislation were part of a program designed to ameliorate the historically disadvantaged state of the Metis in Alberta. As such the Court held that s. 15(2) of the Charter acted to protect the the program irrespective of the apparent discriminatory effect of the exclusion of Indians. In doing so the Court explicitly addressed the issue of reverse discrimination but also, and in some ways more importantly, the issue of addressing the disadvantages one group of oppressed people without addressing the disadvantages of another group of closely related oppressed people:

[39] First, s. 15(1) is aimed at preventing discrimination on grounds such as race, age and sex. Laws and government acts that perpetuate disadvantage and prejudice, or that single out individuals or groups for adverse treatment on the basis of stereotypes, violate s. 15(1) and are invalid, subject to justification under s. 1 of the Charter: Kapp; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396.

[40] Second, s. 15(2) is aimed at permitting governments to improve the situation of members of disadvantaged groups that have suffered discrimination in the past, in order to enhance substantive equality. It does this by affirming the validity of ameliorative programs that target particular disadvantaged groups, which might otherwise run afoul of s. 15(1) by excluding other groups. It is unavoidable that ameliorative programs, in seeking to help one group, necessarily exclude others.

[41] The purpose of s. 15(2) is to save ameliorative programs from the charge of “reverse discrimination”. Ameliorative programs function by targeting specific disadvantaged groups for benefits, while excluding others. At the time the Charter was being drafted, affirmative action programs were being challenged in the United States as discriminatory — a phenomenon sometimes called reverse discrimination. The underlying rationale of s. 15(2) is that governments should be permitted to target subsets of disadvantaged people on the basis of personal characteristics, while excluding others. It recognizes that governments may have particular goals related to advancing or improving the situation of particular subsets of groups. Section 15(2) affirms that governments may not be able to help all members of a disadvantaged group at the same time, and should be permitted to set priorities. If governments are obliged to benefit all disadvantaged people (or all subsets of disadvantaged people) equally, they may be precluded from using targeted programs to achieve specific goals relating to specific groups. The cost of identical treatment for all would be loss of real opportunities to lessen disadvantage and prejudice.

In the result the Supreme Court of Canada has been quite consistent when it comes to this issue in the context of aboriginal issues. In Lovelace, the court held that a program that benefited Indians but not non-status Indians did not offend the s. 15. In Kapp the court held that a fisheries program that gave certain aboriginal communities preferential openings not available to non-Indians did not offend the Charter. Now a program available to Metis but not status Indians is treated in a similar manner. There has been an underlying evolution in the approach to s. 15(2) which is of some significance however. In Lovelace the court held that the provisions were not discriminatory at all because the effect of s. 15(2) was to make it clear that such programs were not intrinsically discriminatory. By contrast Kapp and Cunningham suggest that the programs are discriminatory but are protected from detailed scrutiny.

This subtle change in emphasis is legally interesting and likely reflects a desire on the part of the court to send a message to government to get on with the task at hand by making it clear that efforts to alleviate the plight of aboriginal people will not be scrutinized with great care by the courts on s. 15 grounds. The court may be a little tone deaf however to the politics of describing these programs as discriminatory if their actual hope is for more work of this type to be undertaken by future governments. However, that being said it is significant that aboriginal people can now look at the government and say that the Charter is not an obstacle in moving on with settlements and positive programs.

There is a troubling underlying issue here which will continue to crop up in a variety of contexts -- that is what is the connection between government action for aboriginal people and the underlying rights protected by s 35. Aboriginal people do not see these actions as being discriminatory for very different reasons than the Charter analysis undertaken in Kapp and Cunningham would suggest. For aboriginal people these programs are often a means of recognizing, re-affirming or reinstating rights that had been taken away or overlooked. Thus such programs are no more discriminatory than a law that provides for the protection of fee simple title -- it may not benefit renters but that is because renters do not hold the underlying legal right at issue. However, the flip side of this argument was at play in Kapp -- namely that government action should be limited to those situations where rights can actually be proven or at least have been proven to the satisfaction of the relevant government. Absent such proof -- opponents of such programs would say -- government action cannot be justified.

In the end the Supreme Court of Canada has, consistent with its consultation and accommodation case law, taken a pragmatic course that will encourage -- or at least not stand in the way of -- good faith efforts on the part of the government to rectify the historical and modern light of aboriginal people. Now governments should get on with it.

Significant Decisions Concerning Blockades

The British Columbia Court of Appeal has rendered two significant judgments concerning the ability of First Nations and individual aboriginal people to defend themselves in actions arising out of alleged blockades.

In Moulton Contracting v. Behn 2011 BCCA 311 the Court of Appeal addressed the ability of individual aboriginal people to raise aboriginal law defences when they are sued for damages arising out of a blockade. The individual aboriginal people in this case raised a variety of defences (including that they did not participate in the blockade) but particularly relied upon two aboriginal law defences. First, they said that the authorizations in issues (timber sale licences) had been issued without proper consultation with their First Nation (the Fort Nelson First Nation). They also alleged that the authorizations, in the context of other development in their area, unjustifiably infringed the Treaty 8 rights they enjoyed.

The Court of Appeal upheld a decision striking out these aboriginal defences. First, the Court held that the decision to raise the aboriginal defences belonged exclusively to the First Nation to which the aboriginal people belonged. Thus if the First Nation chose not to raise the defences then the individuals could not raise them. Second, and in many ways more significantly, the Court also held that a challenge to an administrative decision -- whether by way of claim or defence -- could only be asserted in judicial review proceedings and the defendants' attempt to raise it in this case constituted a collateral attack. The Court of Appeal held that another attack on the defendants' defences, namely that the Province was free to infringe Treaty 8 rights, should not have been decided on a motion to strike.

As counsel for the unsuccessful defendants I will not comment on the correctness of the decision but will comment on some of its implications.

First, the collateral attack decision suggests that First Nations must be aggressive in challenging administrative decisions if they want to challenge them at all. This case clearly stands in the way of any First Nation that is thinking of asserting its rights through a blockade and even draws into question the ability of First Nations to challenge matters by way of civil actions well after the decision in question has been made. The Court of Appeal in effect suggests that the presumption of constitutionality has been revived for administrative decisions. In provinces such as Alberta which have express limitation periods with respect bringing judicial review applications this makes it particularly critical to act quickly in the face of such decisions being made. In other provinces (including British Columbia) reliance on a decision by third parties can severely limit the availability of relief and so it is equally important to act quickly in the face of decisions that are being considered for attack.

Second, individual aboriginal people have to be extremely careful in taking any action which may attract a claim for damages or even, potentially, criminal liability. This decision clearly suggests that they may not be able to raise aboriginal law defences at all if their First Nation does not support them at the time that the claim and defences are raised. Individual aboriginal people either exercising their rights or acting on the basis of a breach of rights they enjoy will need to obtain certain commitments from their First Nation that (1) they can raise the defences in question and (2) the First Nation itself will raise the defences.

This decision has implications outside of aboriginal law as it suggests that individual blockaders or picketers may be held liable damages arising out of interfering with business activities that may be otherwise illegal or unconstitutional.

No decisions have been made regarding whether or not an appeal will be taken from this decision.

The Court of Appeal tempered this decision somewhat in Moulton Contracting v. Fort Nelson First Nation 2011 BCCA 312 by overturning a decision to strike out the third party claim of the Fort Nelson First Nation against the Province for breaching the duty to consult. The Band, which has denied participation in the blockade, commenced a claim against the Province saying that if it is held liable for any damages as a result of the blockade then the Province should indemnify it on account of its breach of the duty to consult when issuing the relevant authorizations. The Court held that this did not amount to a collateral attack as it did not attack the Plaintiff's rights but only sought to hold the Province financially liable for its breach.

It is not known at this time whether the Province will seek leave to appeal.

Court of Appeal Rejects Province's Consultation Argument

The British Columbia Court of Appeal knocked British Columbia and Alberta back on its heels yesterday rendering a major consultation judgment in the West Moberly First Nations' challenge to mining exploration in its territory. The case concerned how the government had to approach consultation about Treaty 8 rights.

The Province's view was that the lower court had been wrong in saying that the Province had to look at the history of right to hunt and how it had been traditionally exercised when deciding how to go about consulting about decisions that could adversely affect treaty rights. Thus rather than looking at what was traditionally hunted (in this case caribou) or where traditional hunting grounds might be the Province's view was as long as the aboriginal people could hunt something somewhere all was good and there was not much to talk about.

The coal mining company involved in the case went even further. They argued that not only was the Province right the first judge was wrong in saying that the historic context was relevant. Thus, from their perspective the fact that the relevant caribou herd had been historically decimated by other development (such as forestry) was irrelevant -- the only thing that the governments and courts should be looking at when dealing with aboriginal complaints about the erosion of their rights are the effects of the specific project at hand looked at in isolation.

The Court of Appeal rejected both of these ideas. In a complex and divided decision a majority of the Court agreed that the right to hunt cannot be reduced to the right to the right to be able to hunt something, somewhere. Instead the Crown had to be held to its promises that signing a treaty did not mean that the Indians were agreeing to give up their way of life and turn their land over for wholesale development. Furthermore, in doing so, even if the court could not force the government to cure the ills of the past, it certainly had to look at the context of what was happening today -- and if that context was one that made the current effects that much worse (and so made the government's job that much harder), then so be it.

While this decision will have serious repercussions in British Columbia it strikes at the heart of Alberta's approach to the approval of development in Northern Alberta in Treaty 8 country. If this decision is followed (not a certain thing when dealing with the Government of Alberta) development of the oil sands and land use planning will have to be done very differently now. I suspect this will not go down well in Edmonton and Calgary and there are phone calls being made to encourage British Columbia to appeal this decision.

Cohen Commission and the Sale of Aboriginal Fish

If there is one thing that should come out of the Cohen Commission it is the idea that the first and only job of the Department of Fisheries and Oceans should be to advance conservation. What it should not be focused on is advancing the vested interests of commercial fishing outfits who despise the idea that they now have to share the fishery with the aboriginal fishermen who have gotten back into the fishery by way of the exercise of aboriginal rights.

The courts have spilled a lot of blood trying to articulate limits on what aboriginal people should be allowed to do with the fish they catch -- eat them; use them for ceremonies; share them with their friends; trade them for stuff; sell them a little bit; sell them a lot or sell them somewhere between a little bit and a lot but not enough to actually build up some wealth. While there may (or may not ) be good reasons for the courts engaging in this legal dance, DFO does not have to. The Kapp case showed that DFO actually has great latitude just to cut aboriginal people into the fishery on whatever terms work. DFO has largely declined to do this with respect the rights based fishery and focused a great deal of time and effort on trying to limit the sale of fish.

There are good reasons for DFO abandoning this approach despite the howls that will come from the forces opposed to any aboriginal fishery. Conservation is best served when the participants in the fishery clearly understand that the rules are there for exactly the purpose of conservation and not some other purpose. Getting buy-in to restrictions on gear, fishing times and fishing amounts would be a lot easier if aboriginal people believed that DFO were not trying to advance a different agenda of being "fair" to the Jimmy Pattisons of the world -- who hate the idea that they may have to face competition from small boat fishermen. Aboriginal people see rules being imposed that seem to really advance the agenda of minimizing their ability to participate in the fishery at all (trying fishing without a net because you can't sell your fish to buy the new type of net you need to meet the regulation) and so try to find ways of avoiding those rules.

In some cases they avoid the rules by choosing to sell the fish that they have caught lawfully. This does not create a conservation problem -- nature does not care if the dead fish are eaten before or after money has changed hands. In some cases they (like a certain number of non-aboriginal fishermen) fish more than they have been allocated (and then sell it to boot). This does pose a conservation problem because as with all poaching (aboriginal or non-aboriginal) it is hard to take into account when determining what level of fishing should be allowed that is consistent with there being a next generation of fish.

Wouldn't it make more sense to make peace with the aboriginal fishermen? Reach agreements with them on the amount that can be caught and then leave it up to the relevant communities to decide what happens to the fish. This would create more transparency and would reduce a lot of the resentment that aboriginal people feel toward DFO. It would create incentives for aboriginal leadership to work with DFO as now they would be seen as working to advance both conservation and the ability of their communities to set their own balance between the traditional and the modern.

Sadly, as Mark Hume's recent article shows, DFO and industry advocates are more focused on the idea that the Indians need to be kept down and kept out of the market. Like the reserves where they are allowed to have land as long as it is not easy for them to use it; in the fisheries it is all right to fish as long as they can show it was eaten by genuine aboriginal mouths and not used to build a sensible economic base. Does it really make sense that money is spent on this kind of enforcement (which does nothing for conservation) when it could be spent on better science, better policy and better enforcement designed to achieve conservation goals that serve everyone.

What's in a Name: Indian Affairs

There has been a great deal of fuss and feathers over the change in the name of the Department of Indian and Norther Affairs to the Department of Aboriginal and Northern Affairs. This change has been greeted with outrage in some corners and cheers in other corners. Personally I believe that the real test will be in what actually gets done as opposed to what the name is, but it is useful to understand the history and confusion around the term "Indian" and how it is used in our legal system.

There are three very different terms that float around in our legal history. Most famously today s. 35 of the Constitution Act, 1982 refers to the term "aboriginal" as in "aboriginal peoples". This term is the most expansive of terms and includes Inuit and Metis as well as the people we have traditionally referred to as "Indians". This category also likely includes "non-status" Indians -- a concept that needs no explanation.

In the Constitution Act, 1867 there is no discussion of the term "aboriginal" but there is mention of the "Indians". Section 19(24) assigns exclusive legislative authority in respect of the "Indians and Lands reserved for the Indians" to the Federal Parliament (as opposed to the legislatures). As is typically the case with the Constitution Act, 1867 no explanation is provided for the term "Indians".

Outside of the Constitution, the Indian Act defines a group of people known as the "Indians" who are informally referred to as "status Indians". For all practical purposes this definition amounts to "people who are on a list as of a certain date and are added to that list in accordance with certain rules". The rules amount to being descended from enough people on the list and not too many people off the list. There have been other definitions of "Indian" in the Indian Act over the years and the proper definition of who is an "Indian" remains a fruitful source of conflict.

It has long been known that the group of people who are status Indians is not the same as the group of people who are Indians for the purpose of the Constitution Act, 1867. In an old case called Re Eskimo the Supreme Court of Canada rejected the idea that the Federal government's definition of who is a status Indian covered everyone who was an Indian. Instead the Court held that Eskimos (as the Inuit were then called by non-aboriginal society) were "Indians" within the meaning of s. 91(24) of the Constitution Act, 1867.

So why does any of this matter? Section 35 is fundamentally different than s. 91(24): section 35 speaks to protecting aboriginal "rights" from both levels of government. Section 91(24) speaks to Federal jurisdiction. This jurisdiction is historically tied to an idea that one level of government is charged with giving special protection to the Indians. This protection manifests itself in a range of rights, programs and services which are administered by the Federal government or are provided for in Federal legislation. As a practical matter these protections serve as an extra layer of insulation between the assimilative forces intrinsic in provincial approaches to service delivery and land and resource management (for example, land use on reserve cannot be regulated by local municipal governments). On a social level the labeling of people as "status Indians" becomes an informal way of distinguishing "real" Indians from interlopers.

As can be imagined this categorization carries with it a huge amount of baggage. Non-status Indians (usual persons who are of "Indian" descent who have lost status due to the application of the Indian Act rules) resent the fact that they are frozen out of Federal programs and funding and are, in many ways, isolated from the communal benefits associated with bands. Indian bands are resentful of attempts to lump them with non-status Indians because the Federal government will only fund them for their "status" members while, as a practical matter, they are expected to provide services to their non-status members. This problem becomes particularly intense when we increasingly see children of status members losing their status despite being full community members in every practical sense of the word while funding and services are provided to status person who are living on-reserve but are not band members.

To understand the reaction of many groups to the change of name of the Department requires understanding the debate as to how to solve what everyone acknowledges is an untenable situation. One approach (heavily favoured by non-status people and some Indian bands and organizations) is to expand the definition of status Indian (or more generally Federal responsibility) to encompass all "true" Indians. These people will be removed from provincial programs and services under this model and placed into the parallel Federal system as well as receive the benefits of any additional Federal programs. The alternate approach favoured (or believed to be favoured) by the Federal government is to maintain a narrower definition of status Indian and over time remove all of these individuals from Federal protection and programs.

Thus when many Indian groups who cherish their special relationship with the Federal government see a move away from "Indian affairs" to "Aboriginal Affairs" they see (rightly or wrongly) language being used that suggests a move to sever that special relationship. By contrast non-status organizations, such as the Congress of Aboriginal People, see the move as signalling a recognition of broader Federal responsibility.

Ahousaht Decision Released by BC Court of Appeal

The British Columbia Court of Appeal brought down a major decision yesterday.

There has been some question whether the Courts would ever seriously recognize an aboriginal right to harvest a commercially valuable species of fish to sell. Eels and herring roe on kelp would be fine, but salmon, not so much. The Court of Appeal has now shown that as long as the proper record is laid in the trial court, such rights can in fact be recognized. In Ahousaht v. Canada (Attorney General) the Court of Appeal largely upheld the decision of Madam Justice Garson that the aboriginal people of the West Coast of Vancouver Island have a right to sell salmon and other traditionally harvested species (geoduck were excluded by the court because they were technologically unharvestable pre-contact). Even the dissenting judge would have recognized some right to sell (at the "moderate livelihood level recognized in Marshall).

There is much work to be done in implementing this decision and refining what it means but for now the NTC should savour its well-deserved victory. This case was an extended and important challenge to the policies and approaches of the Department of Fisheries and Oceans. It took determination and dedication to achieve and will have effects that will be felt for years and should lead to a re-shaping of Federal policy towards the fisheries.