Conceptual Frameworks for Government Aboriginal Relations

A Clash of Frameworks

It is at times hard to read some of the commentary (particularly Christie Blatchford's) on the Idle No More movement given its racist narrative of corrupt Indian chiefs, benighted Indians and desperate poverty arising out compromised medieval cultures that should be left behind.  However, read it we should, as it reminds us that there are very different perceptions as to what aboriginal-government relations are all about.  Not recognizing that there is this gap in perceptions is at the heart of the failure of aboriginal policy over the last two hundred years.  In a fundamental way aboriginal people and governments have been talking past each other. They approach the issues they are discussing informed by entirely different frameworks.   This is made even more complex when one considers that the constituencies served by the leadership of aboriginal and non-aboriginal communities often see the issues through entirely different frameworks again (and are generally not homogeneous in this regard).

In my view there have been three major frameworks that have structured the government-aboriginal relationship over the last 250 years: (1) the political framework; (2) the welfare (or humanitarian) framework and  (3) the legal rights framework.  None of these frameworks is pure nor have they been at nay time uniformly shared by all members of each side of the framework.

So with that here is the first of three posts that will make up a short primer on some of the different frameworks that serve to support the ongoing discussions about Crown-aboriginal relationships.

The Political Framework

The oldest and most important framework for government-aboriginal discussions has been the political framework.  When the colonial powers first arrived in North America they were faced with a complex political state of affairs.  First, there were the political rivalries that existed between colonial powers -- France and England wanted the same land and the same resources.  Over time this evolved so that there was a new colonial rivalry between the British North American colonies and the emergent United States of America.  Even within Canada there were and are ongoing political disputes over jurisdiction over resources between the federal and provincial governments and even between rival provincial governments (cue Northern Gateway and Muskrat Falls).

Second, there was the reality that the land that the colonial powers were interested in occupying was de facto occupied by a number of relatively populous (although recently plague stricken) national aboriginal powers who had well-established proprietary feelings about the lands that the colonial powers occupied.  It was fairly clear fairly early on that these groups were not merely going to turn their lands over to the colonial powers and fade into the woods.

Third, there was the complex interplay between the various aboriginal powers who had their own competing interests for access to lands and resources.  This interplay at times manifested itself in the form of inter-tribal alliances and at times in the form of inter-aboriginal warfare.

In the early colonial period (say to the end of the War of 1812) (this period is referred to by historians as the Sixty Years' War)  we see the relationship between aboriginal nations and the Crown being almost entirely managed in a classic political framework using political tools.  That is, we see relationships being mediated by diplomacy, warfare and alliances which are driven by perceptions of military and political advantage.  There was a clear sense of internal affairs as opposed to external affairs and a great interest in managing the relationships out of pure reasons of self-interest.  This is even reflected in the language that is used to describe aboriginal people who are generally described as "nations" rather than or as well as "tribes" or (more recently) "bands" (see for example, The Royal Proclamation of 1763).  The political importance of the aboriginal government relationship in this period is most obviously manifested in the act that the management of aboriginal relations was kept out of the hands of the petty colonial local colonial officials and was managed by imperial military officials.

While it is tempting to think that this period of political relations came to an end at the end of the early 19th century this oversimplify subsequent Canadian history even if looked at from a purely non-aboriginal perspective.  Two examples of this continued political thread are the negotiation of the numbered treaties in the early post-Confederation period and the appointment of the Royal Commission on Aboriginal Peoples.  After the end of the Sixty Years War the aboriginal people of Canada have rarely (if ever) been viewed as being a military threat to the sovereignty of Canada but they have continued to be viewed as a threat to the internal security of Canada and the process of settling and developing a very large and remote interior that largely remained (and remains) "Indian country."  For example, Huyshe, a member member of the Wolsley Expedition, which as on its way westward to deal with the Red River Resistance, wrote the following about the Ojibway in the area of Lake of the Woods in 1870:

Although I do not think it possible that they could ever combine in any large numbers for such a purpose, yet there is no doubt that 100 determined men might have inflicted tremendous loss on the troops with comparative impunity; for, thoroughly acquainted with the vast network of lakes, they could have fired on the boats as they passed through narrow channels, or blocked up portages, and done much mischief in a variety of ways, while to have attempted to pursue them through the woods and lakes would have been madness. They move about in the neatest possible little birchbark canoes, just large enough to hold three men, and so light as to be portaged by one man with ease for long distances

These concerns about security continued into the 1870's and 1880's and were found to be a key motivator in  Canada negotiating Treaty 3 in 1873.  There the concern was that Canada had to get settlers across northern Ontario and compete a railway link through Ojibway territory by the end of 1876 (in order to fulfill the Terms of Union with British Columbia) without fear of molestation or interference by the aboriginal populations.  In Ottawa there were serious ongoing concerns about the willingness of the Ojibway to allow this to happen given their expressed concerns about the Dawson Route having been put through largely without their consent and without any real compensation.  Ottawa recognized it could force the issue but that this would involve the costs involved in assembling and maintaining troops on the Canadian Shield.  Ultimately Canada was motivated to make peace for this reason rather than war, as recently noted by Madam Justice Sanderson in the Keewatin decision:

[724]         I find that the Commissioners and Canada recognized that it was in Canada's strategic interest to promote peace and friendship with these Ojibway, to prevent unhappy Ojibway from attacking travelers on the Dawson Route and to allow surveyors and builders of the CPR to meet their December 31, 1876 deadline for completion of the Treaty 3 portion. I find that Canada wanted to avoid the significant costs of stationing troops in the area.

What Ottawa and the Commissioners quite sensibly recognized was that irrespective of the niceties of law or the ability to bring force to bear, Canada is large country that depends upon the operation of infrastructure that is largely undefended and that cannot be in any practical sense be defended from unhappy aboriginal people in remote areas.  Alexander Morris, the former Lieutenant-Governor of Manitoba and the Northwest Territories recognized this and alluded to it in the opening of his book "The Treaties of Canada with the Indians of Manitoba and the Northwest Territories" where he says:

One of the gravest of the questions presented for solution by the Dominion of Canada, when the enormous region of country formerly known as the North-West Territories and Rupert's Land, was entrusted by the Empire of Great Britain and Ireland to her rule, was the securing the alliance of the Indian tribes, and maintaining friendly relations with them. The predecessors of Canada--the Company of Adventurers of England trading into Hudson's Bay, popularly known as the Hudson's Bay Company--had, for long years, been eminently successful in securing the good-will of the Indians--but on their sway, coming to an end, the Indian mind was disturbed. The events, that transpired in the Red River region, in the years 1869-1870, during the period when a provisional government was attempted to be established, had perplexed the Indians. They, moreover, had witnessed a sudden irruption into the country of whites from without. In the West, American traders poured into the land, and, freighted with fire-water, purchased their peltries and their horses, and impoverished the tribes. In the East, white men took possession of the soil and made for themselves homes, and as time went on steamboats were placed on the inland waters--surveyors passed through the territories--and the "speaking wires," as the Indian calls the telegraph, were erected. What wonder that the Indian mind was disturbed, and what wonder was it that a Plain chief, as he looked upon the strange wires stretching through his land, exclaimed to his people, "We have done wrong to allow that wire to be placed there, before the Government obtained our leave to do so. There is a white chief at Red River, and that wire speaks to him, and if we do anything wrong he will stretch out a long arm and take hold of us before we can get away." The government of Canada had, anticipating the probabilities of such a state of affairs, wisely resolved, that contemporaneously with the formal establishment of their rule, there should be formed alliances with the Indians.

Similarly, the events around Oka and later Ipperwash Park were largely security and political problems not legal and military problems.  There was little doubt that the actions of the aboriginal people in those cases were against the law and that ultimately they could be put down by the use of either military or police force.  However, everyone in power at the time recognized (at least until the Harris Government made the decision to "get the f--king Indians out of the park") that to do so would create a political problem which would sully the image of Canada and set relations between the aboriginal people and the government back years if not decades.  Furthermore, all governments recognized that there would be significant costs involved in dealing with series of these types of disputes both in terms of direct policing costs and  indirect costs flowing from economic disruption.   Both of these events let to inquiries or commissions that recognized that roadblocks and occupations arose out of ongoing feelings of discontent about broken promises and failed treaty relationships.  Both reports recognized that the real solutions lay in renewed political efforts designed to find modern methods of resolving these grievances.

Analyzing these issues in a political framework involves a fundamentally different type of engagement than dealing with them in a legal or welfare framework.  Political frameworks tend to require real consideration of the importance of symbolism; require meaningful and public acknowledgement of respect and legitimacy;  require the engagement of political (rather than bureaucratic) actors; and generally require openness to solutions that are outside of unilaterally established frameworks.  This framework also inevitably involves a direct assessment of power dynamics (how much pain can one side inflict on the other) and turns in many ways on political will and political consequence.  It also requires recognizing that the world is unpredictable and that political events cannot always be controlled -- particularly if disputes are allowed to fester or drift close to the edge (as the US fiscal cliff negotiations are showing us).

What we are seeing today in the Idle No More campaign is a fundamentally political campaign in action.  The aboriginal players are using classic political actions of the militarily weak communities to make the politically powerful suffer political pain.  Chief Spence's hunger strike is a tactic directed at politically and morally shaming the current government (which is a dangerous proposition when you are dealing with people who largely seem to be shameless).  It also is designed to be a rallying point for members of the aboriginal community.  The round dances in public places are designed to create low scale public disruption and also create as sense of community solidarity.  The blockade at the CN rail crossing at Sarnia is designed to create economic pain in the non-aboriginal community and to provoke a confrontation.  All of this is fundamentally political in nature and not about the law or judicial process.

Of course, political issues are at play on the other side of the equation as well.  Prime Minister Harper recognizes that the Idle No More movement is a political movement and does not want it to grow.  As such the government's reactions have been largely designed to deny the process political legitimacy in a number of ways.  One has been by denying the movement any direct political recognition at the symbolic level (thus no meetings with Prime Minister or Governor General).  Another has been to try to move the issues into other frameworks (for example, into the social welfare framework by highlighting social welfare programs or the legal framework -- through injunctions).  A third response -- which is actually a very interesting response -- has been to try to move the political framework away from Chief Spence and various rights holding bodies (First Nations, tribal associations and the like) to the national and regional chief's organizations, such as the AFN.  This move is particularly interesting both because it is designed to create internal divisions (pitting Chiefs and local leaders against the AFN, if possible) but also because it comes at a time when the current government has significantly weakened these organizations by reducing their funding and delegitimized them in the eyes of many aboriginal people by failing to act on the Crown -First Nations Gathering earlier this year.

It is in this context that the Christie Blatchford's view of the world have to be understood.  From her perspective there is no genuine political issue here except the failure to enforce the law.  When one reads her articles what can be seen is a classic welfare framework analysis of government-aboriginal relations.  That is: the only question that matters is why are aboriginal individuals as individuals not better off in the classic liberal sense of the world -- that is as self-reliant, individual citizens.  The fact that these individuals frame their claims around political entities that mean a lot to them is something which she frankly cannot see and does not care to see as she sees the political fight as being over (I am sure that over a few scotches with her right wing pals, she has expressed the view, one way or another, that "we won and conquered them and they should just knuckle under and accept that").  What experience shows however is that the political framework for these disputes is still a very real one and, in fact, for most aboriginal people probably the most important one.  Thus any admonition from Stephen Harper or Christe Blatchford that the focus should be on "jobs, jobs, jobs" will be met by the answer that the real issue is "R-E-S-P-E-C-T."

Idle No More and the Courts

The Idle No More movement is a direct consequence not only of government policy but also judicial policy.

With the Sparrow decision in 1990 there was the growth of hope in aboriginal nations that perhaps the courts would become a means of achieving recognition of their rights.  The reality has been disappointing both from procedural and substantive perspectives.Substantively the jurisprudence has failed to address legitimate aboriginal concerns in two fundamental ways.

 First, the courts have largely taken a "not too much" perspective in respect of aboriginal and treaty rights -- that is, they have taken an approach to the definition of rights that ensures that the aboriginal people get "not too much" as a result of their constitutionally protected.  Unfortunately, as most recently demonstrated by the Tsilhqot'in decision, the standard that the courts have set for "not too much" seems to be "not enough that it would cause any settler to feel disturbed".  The effect of all of this has been to leave most aboriginal people feeling that the western idea of "aboriginal and treaty rights" actually is "not very much at all and certainly not anything like what we had."  This phenomena is manifest in the geographic extent of the rights (see the Tsilhqot'in decision), the subject matter of the rights (see Lax Kw'alaams) and and political reach of the rights (see Adams Lake).

This shortfall in the jurisprudence manifests itself in the context of consultation and reconciliation as well.  As matters have evolved, the doctrines of reconciliation and consultation/accommodation have drifted towards an assumption of economic assimilation.  That is, to the extent that an aboriginal group is interested in taking a "cut of the action" (but not to big a cut) consultation and reconciliation work well by creating incentives for governments and companies to enter into impact benefit agreements.  On the other hand, the doctrines of reconciliation and consultation do not work well when aboriginal people want to oppose a project because of concerns about cultural or traditional interests in land.  While governments and companies will typically be open to discussing "site specific" issues, concerns about maintaining wilderness areas, minimizing environmental risk or respecting spiritual concerns are not really open for discussion.  Raising such concerns will typically receive the response "First Nations don't have a veto."  This issue is playing itself out most dramatically in the ongoing Enbridge Northern Gateway hearings.

The judicial approach to procedure aboriginal and treaty rights procedure has rendered the law both inaccessible and lacking in utility for most First Nations and almost all aboriginal persons.  The inaccessibility arises from the fact that aboriginal and treaty rights litigation typically requires specialist lawyers, experts and extensive archival research to prove even the simplest points.  This renders the costs associated with this type of litigation astronomical and particularly so when imposed upon the poorest people in Canada.  The lack of utility flows from the hopeless delays associated with most aboriginal and treaty rights litigation, This usually means that the subject matter of the dispute has been compromised by the time that the case is complete or there is no effective remedy available.  These delays make the substantive problems worse since as time goes by there are fewer elders to provide oral history evidence and there are a fewer persons who have a history of using the land.

One school of thought would say that all this just means that aboriginal people are entitled to less than they think.  This would certainly be the view of the governments and many in industry.  That view however is not convincing to most aboriginal people who merely see these results confirm the view that the game is rigged in favour of the house.  No number of court judgments admonishing aboriginal people that they merely wandered over their lands, that their lives were nasty, brutish and short or that they were simple hunters and gathers without political or social norms governing their lands will convince aboriginal people that it was so.  Such judgments will particularly not convince them that some logging or mining company that obtained a piece of paper from a distant government has a better claim to their territory than they do.

The failure of the courts to face up to this is only serving to discredit the courts and lead aboriginal people -- starting with the youth -- to turn away from the courts and turn to confrontation.  In some way this is good as it leads to a focus on developing and fostering a community vision of what they want. It also revives commitment in the next generation to carrying the cause forward.  In other ways though this is a negative development since real progress is going to come from finding ways to change and move the legal framework so that that vision becomes part of the Canadian vision. In the end though the failure to really deal with the vision of aboriginal people about their pace in Canada has actually eroded the rule of law.  The rule of law has little credibility in the eyes of aboriginal people when they see promises made about respect for their rights which are routinely rendered unenforceable and meaningless by an insensitive and impractical justice system.

SCC Refuses to Hear s. 87 Tax Appeals

The Supreme Court of Canada has sent a strong message that it did in fact intend to extend the application of the s. 87 tax exemption by dismissing CRA's applications for leave to appeal in the Robertson and Ballantyne cases.  Now we just have to wait to see if CRA gets the message operationally.

The Tax Exemption: Another Nail in the Commercial Mainstream's Coffin.

In a recent decision (that I was involved in together with Sarah Hansen of Miller Thomson LLP) the Tax Court again had an opportunity to look at the future of the commercial mainstream test in the post-Bastien/Dube landscape.  The decision of Justice Pizzitelli in Dickie v. The Queen 2012 TCC 242 confirms the view held by many that after the Supreme Court of Canada's recent decisions in Bastien and Dube there is little significance to the concept of the "commercial mainstream" as a limit on the application of the tax exemption contained in s. 87 of the Indian Act.  This case is interesting because of its application of the principles from the recent Supreme Court of Canada jurisprudence to the context of business income.

Mr. Dickie ran a business from the Fort Nelson First Nation reserve.  Mr. Dickie through a sole proprietorship known as Deer River Holdings bid on brush clearing contracts offered by companies in the oil and gas industry operating in the vicinity of Fort Nelson.  Mr. Dickie (together with his wife) would undertake pre-bidding qualification work, prepare bids, make bids and assemble and train crews to perform the work once bids were obtained.  The work crews were drawn from a very wide area and the work (for the most part) was done off reserve.  Invoices were sent out to customers from the reserve and payment was made by cheque to the reserve or by wire transfer to a local bank.  What is noteworthy about Mr. Dickie's role in the operation is that he carried out all of his functions exclusively from his on-reserve base.  He himself did not participate directly in the cutting of trees or clearing of brush off-reserve.

The Canadian Revenue Agency re-assessed Mr. Dickie and held that his income from the business of Deer River Holdings was earned off reserve and not eligible for the s. 87 exemption because the physical activity that led to the generation of the gross revenue was carried out off-reserve and because the business competed in the commercial mainstream.  Mr. Dickie argued that the exemption applied because the management functions he carried out were carried out entirely on-reserve and because the off-reserve activities were carried out in the traditional territory of the Fort Nelson First Nation they were not truly in the commercial mainstream.  M. Dickie also argued (on appeal) that the commercial mainstream test had no significant role in this case in any event.

Justice Pizzitelli held that both sides took an overly black and white position and instead applied a balanced analysis which ultimately found that there were significant connecting factors establishing the reserve as the situs of the business.  This particularly flowed from the "nomadic" nature of the physical labour which meant that the management and other such functions were necessarily disconnected from the location of the labour) and the fact that the administrative and business functions were not merely incidental but involved significant effort on the part of Mr. Dickie.  As Justice Pizzitelli found they were "an essential and significant part of its business operations."  Justice Pizzitelli rejected Mr. Dickie's reliance on the fact that the operations were carried on in the Fort Nelson First Nation Traditional Territory on the basis that this area was just too large and the connection to the work too tenuous to provide a connection to the reserve that could weigh in favour of the taxpayer.

What is most interesting about the judgment is how Justice Pizzitelli approaches the issue of the "commercial mainstream."  He characterized CRA's approach to this issue as being one of asking whether or not the business in question was "Indian enough" and held that this was a wholly irrelevant factor.  In the end the question to be addressed had to be "is this income situated on reserve?" even if to allow the exemption to apply in such circumstances would give the aboriginal people a business edge.  Here is what the court said:

[66]        Having regard to the above, it is my view that the term “commercial mainstream” is now a misnomer. Competition with non-aboriginals is the more accurate category that describes the real reason for the existence of the factor. Clearly, categorizing it as suggesting it must describe the “non-Indianness” of the activity, as demonstrated by the earlier examples, are clearly inappropriate. However, as counsel for the Appellant pointed out, the Supreme Court of Canada also recognized, in the continuation of the quote utilized by the Respondent’s counsel in its argument above from Cromwell J. in Bastien Estate, that while La Forest J. in Mitchell noted that the purpose of the legislation is not to permit Indians to “acquire, hold and deal with property in the commercial mainstream on different terms than their fellow citizens,” it was clear that, “even if an Indian acquired an asset through a purely commercial business agreement with a private concern, the exemption would nonetheless apply if the asset were situated on the reserve. … it must be remembered that the protections of ss.87 and 89 will always apply to property situated on a reserve.”

[67]        It is thus clear to me that, whether the aboriginal competes with non‑aboriginals or not, the question of competition per se, or the “commercial mainstream” which I feel are one and the same, is irrelevant. The question is whether the property is situated on the Reserve and this had nothing to do with whether the same property can be owned by non-aboriginals and exist off reserve. In my view, any consideration of this “commercial mainstream” or “competition with non-aboriginals” factor is irrelevant to the determination of whether the Appellant’s business income is situated on the Reserve and I assign no weight to it. It may be an aid in defining the nature of a business and the location of its business activities above, but no presumptive weight can be given to it in the manner it has been utilized in the past.

[68]        Moreover, it must be emphasized that just because a finding that a property is situated on a Reserve may lead to a competitive advantage given an Indian over a non-Indian does not give reason to negate the finding it is situated on a Reserve. Any advantage such finding may render is in my view the exact advantage that was contemplated by section 87 of the Act.

This is a welcome decision.  It sends a message that the Indian Act does not have to be approached as being intended to keep aboriginal people isolated or frozen in time.  Instead they are allowed -- like any Canadians -- to use what assets and rights they do have to advance their lot in life and improve their personal and family economic circumstances.  

Nunavut Lands Claim Decision

The decision of the Nunavut Court of Justice in NTI v. Canada (Attorney General), 2012 NUCJ 11 is finally available and makes for interesting reading for those interested in the question of the degree to which the courts will hold Canada accountable for the implementation of modern treaties.  This case is a cautionary tale for both aboriginal peoples and Crown.  For aboriginal people contemplating ratifying a modern treaty the facts of this story send an important message about the degree to which they can expect Canada to act with good intentions and honourably based upon political good will: don't expect it to happen.  Before the litigation commenced Canada clearly dragged its heels in implementing a major promise made in the Nunavut Lands Claim Agreement; finally only acted in the face of litigation; and aggressively resisted any timely adjudication of its dispute with NTI or any meaningful remedy once litigation commenced.  In a word, Canada acted throughout as a bully.

For Canada the cautionary tale lies in the outcome of the case.  While the judgment is a dense read (not made easier by the unfortunate typeface and formatting used by the court) with many procedural twists and turns the core message that comes through in the end is one of outrage.  Justice Johnson clearly came to the view that Canada was a bully throughout and essentially was shirking honouring ts obligations under the treaty to the extent that it could and trying to delay and avoid any real consequence for disregarding its obligations.   In Justice Johnson's judgment there is a clear sense that this is no way to encourage any meaningful form of reconciliation with aboriginal people and that the Courts cannot allow such conduct to go unsanctioned.  Given Canada's conduct Justice Johnson was willing to cut through significant legal thickets to provide a timely and meaningful remedy.

The judgment is lengthy and much of it focuses on technical questions concerning whether or not summary judgment is available in the circumstances.  In the end though this case boils down to a few relatively simple observations.   First, under Section 12.7.6 of the NLCA thre is a requirement for general monitoring to collect and analyse information on the long term state and health of the ecosystemic and socio-economic environment in the Nunavut Settlement Area.  Government, in co-operation with the NPC, shall be responsible for developing a general monitoring plan and for directing and coordinating general monitoring and data collection.  Under the NCLA there is a schedule established for planning and implementing this general monitoring plan (which is called the Nunavut General Monitoring Plan or NGMP).  Canada was ultimately responsible for implementing and financing the NGMP.

Second, despite being prodded by NTI for several years to get on with planning and implementing the NGMP, Canada declined to move forward with this obligation until NTI commenced this action in the Nunavut Court of Justice.  Finally in 2010, several years behind schedule, Canada implemented the NGMP.

Third, the Inuit were collectively worse off because of Canada's failure to implement the NGMP as they were deprived of the performance of the their agreement but also because they were deprived of the knowledge and data that would have come from a properly implemented monitoring program.  However,the loss suffered by the Inuit because of this breach is very difficult to put into numerical or cash terms.

Fourth, Canada undoubtedly benefited from its foot-dragging as essentially it avoided several years of monitoring costs.  Canada's savings were somewhere between $11,000,000 and $14,000,000.

The two real substantive questions before the Court were these: (1) did Canada breach the Nunavut Lands Claim Agreement and (2) what damages should be awarded? Needless to say Canada denied that it breached the agreement, essentially putting forward a halfhearted argument that this was a discretionary promise that it was free to delay as it saw fit.  More seriously Canada denied that the Inuit should get any remedy or meaningful award of damages.  Canada said no declaration was needed because it had now started implementing the NGMP.  It also said that because the Inuit could not prove what harm they suffered in a numerical sense their damages should be limited to "nominal" damages -- that is to a symbolic figure such as $100.

Needless to say NTI had a different perspective on these issues.  NTI argued that the implementation of the NGMP was an important part of the overall treaty package for which they had made significant sacrifices.  The treaty established a relationship between Canada and the Inuit in these circumstances that was both contractual and fiduciary in nature.  Canada's delay in implementing the NGMP amounted therefore to both a breach of contract and breach of fiduciary duty.  NTI also argued that given the special circumstances of this case and given the fact that Canada had clearly benefited from a breach of treaty that harmed the Inuit the fact that damages were hard to quantify should give rise to a damages calculations based upon what lawyers call "disgorgement" -- in lay terms, Canada should be required to "choke up" the benefit it got from its breach of the treaty.

Once the Court worked its way through the procedural thicket of whether or not it could grant summary judgment (that is, judgment before a full-blown trial) it had a reasonably easy time in finding that Canada had breached both its plain legal obligations under the treaty and its fiduciary duties towards the Inuit.  Fundamentally the Court found that there was clear evidence of a commitment to plan and implement the NGMP in a timely way that was in fact reflected in a schedule and Canada simply failed to move ahead with the matter without any explanation other than the desire not to invest the time, effort and resources.  

This aspect of the decision will be undoubtedly challenged on appeal both for technical as well as substantive reasons.  Substantively it will be most interesting to see if the appeal courts uphold the finding that there was a fiduciary duty and a breach of that duty.  That finding -- which is a more flexible and generally applicable finding -- marks a clear revival of what had been something of a whithering branch of the aboriginal law tree.  While the courts have been applying the concept of the honour of the Crown liberally in the last few years there has been less willingness to impose the somewhat more stringent standards expected of a fiduciary.  The application of this doctrine in the context of a modern treaty is a noteworthy event.  

The Court then went on to the more complex issue of damages.  Ultimately the court found that the Crown's behaviour was such that it would run against the tenor of the law and good public policy to allow the Crown to escape essentially unscathed from its breach of the treaty and its fiduciary duties.  The Court therefore held that on either a contract basis or on the basis of a breach of fiduciary duty Canada was required to disgorge the savings it had made by breaching the treaty.  On this basis Justice Johnson awarded damages of $14,817,500.  The sense of Justice Johnson's concerns are best captured in the following passage: 

[333] I am satisfied that Canada’s failure to implement an important article of the land claims for over 15 years undermined the confidence of aboriginal people, and the Inuit in particular, in the important public value behind Canadian land claims agreements. That value is to reconcile aboriginal people and the Crown. It would be manifestly unjust to allow the Crown to benefit from its failure to fulfill its obligations under Article 12.7.6. It is also important that to ensure that the Crown properly respects and fulfills its obligations under land claims agreements, including obligations to provide benefits that are not capable of being quantified in financial terms.

It will be fascinating to watch this case on appeal as it is likely to arrive at the Supreme Court of Canada.

Attawapiskat Decision Systemic Blow to Federal Government

The Federal Court decision  finding that the Federal Government  acted unreasonably and unlawfully in appointing a third party manager to run the affairs of Attawapiskat is a blow to the Federal Government on a number of levels.  In terms of short term politics it is obviously not a good development from the government's perspective to be taken to task in such a high profile way.  However this decision actually marks a more systemic blow to the Federal Government. It significantly alters the balance of power between the Federal government and bands in the use of the Federal government's financial powers to take over the management of bands.

There were really two battles in front of Justice Phelan.  One -- which got the most coverage last week -- was whether or not the government had acted reasonably in appointing a third party manager.  Here the Court found that while the band had breached its Comprehensive Financing Agreement (the "CFA") it simply did not make sense to appoint a finance manager when the breach related to a non-financial housing problem.  In a sense Justice Phelan said that it made no sense to send a fire engine to battle a flood by turning the hoses on when there was a perfectly good flood control team at the ready.  In making this ruing Justice Phelan essentially dismissed the innuendo and allegations spread by the government and repeated in the press that the band was a financially mismanaged quagmire.

The second battle was over whether or not Justice Phelan could hear the matter at all.  Part of this skirmish was over whether or not the application before Justice Phelan was moot or academic (which Justice Phelan dealt with in short order).  More significant was the question of whether or not the procedure (known as judicial review) was available to police the government when it chose to use powers contained in the CFA rather than powers under the Indian Act.  The judicial review process is designed as a quick and effective means of allowing citizens and others to get into  court to challenge government decision making and get quick answers and quick solutions at a reasonable cost.  While slow and expensive in ordinary human terms, judicial review shortens the time from challenge to decision by years -- indeed sometimes decades -- and reduces the costs by an order of magnitude.  As a practical matter being able to use judicial review if you are small remote community is the difference between being able to hold the government to account and being run over.

Almost every band in Canada has a CFA.  These agreements essentially finance band governance to the extent that the band takes on responsibility for the delivery of certain social programs such as welfare, health and housing on behalf of the Federal government.  Attached to each budget there is a percentage increment that represents the expected overhead or administrative cost of running the program or service.  Over a group of programs this overhead amount adds to enough to allow the Band council to hire a few workers to administer these programs and in their minimal spare time provide other band support services (book-keeping, basic administration, meeting organization and so forth).  In theory this system can work, in practice it is very hard to stretch the dollars to actually deliver the programs and also provide need band administration.  This of course also assumes that everything goes right -- which in reality it rarely does.  Thus for example a band's finances can easily be devastated if just a few members are unable to pay their rent on what is essentially public housing.  The band still has to pay off the loan but now the income necessary to support that payment is absent meaning it has to poached out of other sources of funds.  The net result is that many bands, particularly small bands or remote bands with few economic opportunities, are always close to the edge or deep in the red.

It is here where Attiwapiskat's recent victory becomes important.  The CFA contains provisions dealing what the government can do when various defaults arise.  These defaults are fairly broadly defined and at one time or another almost every small band or remote band is either close to or in default.  The most draconian remedy available to the Federal government in this situation is the ability to appoint a "Third-Party Manager".  In ordinary terms this is somewhat like appointing a receiver.  With the appointment of a Third-Party Manager every financial decision by the band from the writing of pay cheques, to the building of new housing, to the hiring of lawyers, to the buying of paper for the office is subject to the control of the Third-Party Manager.  While the band notionally retains its self-government powers under the Indian Act it is deprived of any real autonomy.  Moreover, the band is responsible for paying the Third-Party Manager and so the already strapped finances of the band are stretched even further.

Attawapiskat's battle with the Federal government was essentially over whether the Federal government could essentially live outside the usual constraints put on government agencies because this was a contractual arrangement rather than a public act.  Generally we expect government officials acting to affect the day to day rights of citizens to act with more probity and regard for citizens than we would expect band officials to act in the context of commercial arrangements. We also expect that they can be held to account through the mechanism of judicial review. By contrast, banks and their customers are expected to comply with their contracts but as long as the bank lives by the terms of loan document it is free to act in its own self-interest.  For example, once a borrower is in default the courts and other recognize that the bank is looking out for its own interests in what is largely a private matter.  If a borrower is put into bankruptcy or prevented from achieving its aspirations or pursing its goals -- too bad -- that is a private matter that the courts will not generally meddle in unless there is a clear breach of contract.  The Federal government has largely taken the view this is the world it is operating in when dealing with CFA's.

What Justice Phelan has done is say that this is wrong.  The financing of public services and band administrations is not a commercial matter to be judged in a commercial context.  Putting a band into a form of quasi-receivership -- especially in the midst of a public housing crisis and a political debate is no mere private matter.  It is a matter of grave public concern and fundamentally governmental in action.  In this case its actually smacked as much of an effort to silence the band council and stifle debate  as much as an effort to control a financial crisis.  As such Justice Phelan held the government had to act reasonably and could be held account using the processes designed to ensure speedy and effective accountability on the part of the Federal government.  This is a precedent that will benefit First Nations across Canada and hold the Federal government to a higher, more honourable, standard of conduct.

Federal Government Breaches Nunavut Agreement

The judgment in this case is not yet available on-line but it appears that the Federal Government has been held to account for failing to live up to its commitments coming out of the lands claim agreement that created Nunavut .... http://www.nunatsiaqonline.ca/stories/article/65674nunavut_inuit_org_wins_14.8m_judgement_on_general_monitoring_plan/

Seems Canada has problems keeping even its modern promises.

The Tsilhqot'in Decision -- Immediate Thoughts

The British Columbia Court of Appeal rendered its judgment in the Tsilhqot'in decision.  There will undoubtedly be enough papers published about this decision to support the forest industry for years to come, but, just for the use of those of you out there who want the initial half baked thoughts of the one of the participants, here goes.  These thoughts are not an analysis of the case -- that will follow but more in the nature of birds-eye view comments about where this decision takes us and where it will likely go.

First, the Court of Appeal is clearly throwing down the gauntlet to the Supreme Court of Canada in this decision and, in essence, saying "you tell us what you really mean by aboriginal title."  It is difficult to read this decision without getting the strong sense that the Court of Appeal believes that the Supreme Court of Canada has done everyone a disservice by not really telling us much about what they see the extent of aboriginal title being.  Justice Groberman clearly sees this uncertainty as serving no-one's purposes:

[161]     To some degree, the apparent reluctance of the courts to go beyond what is needed to resolve the specific cases is understandable. I have already noted that that is the traditional manner in which the common law has developed. Further, the stakes in Aboriginal title claims have been high – cases such as Calder, Delgamuukw, and Marshall; Bernard involved vast areas of land. The resolution of such claims can be critical to the future of both the First Nation involved and the broader Canadian population.

[162]     The technical difficulty of this area of law has exacerbated the problem, and has led to considerable frustration. The efforts of the Nisga’a in Calder, the Gitksan and Wet’suwet’en in Delgamuukw, and the Tsilhqot’in in this case (to this point) all consumed enormous amounts of resources, only to have the cases end inconclusively due to problems with the way they were commenced or pleaded.

[163]     The courts have frequently emphasized the need for resolution of Aboriginal rights and title issues through negotiated agreements where possible. The trial judge in this case went beyond the ordinary role of the court in attempting to set the stage for a negotiated resolution. Negotiated resolution of issues, however, is not facilitated by uncertainty in the law.

[164]     It is apparent that all sides have attempted to resolve the issues in this case, but without success. That is not surprising, given that the theories of Aboriginal title espoused by the plaintiff, on the one hand, and the defendants, on the other, are as far apart as they are. The trial judge’s decision to provide a non-binding opinion as to the title area did not, in the end, assist the parties in finding common ground.

In this comment there is much truth:  it is really a scandal that both Calder and Delgamuukw ended in uncertainty flowing from procedural, technical or evidentiary  errors.  It would have only made the law look even more discreditable if the Tsilhqot'in case had ended the same way.  There are many who say that the lawyers are the only real winners in aboriginal litigation and that view would certainly have been reinforced if the Court of Appeal had not come to grips with the issues.


Second, the Court of Appeal clearly takes the view that aboriginal title is a limited right with a modest (I would say close to non-existent) role to play in the process of reconciliation but views non-title aboriginal rights as being far more robust and significant for this purpose.  Justice Groberman's dismissive view of aboriginal title as a significant right is best seen in the examples he cites of where aboriginal title may exist outside of village sites or cultivated fields:

[221] In particular, I note that the examples of title lands given at para. 149 of Delgamuukw are well-defined, intensively used areas. The reference to hunting, fishing and other resource extraction activities is coupled with a specific description of the lands so used as “definite” tracts of land. I agree with British Columbia’s assertion that what was contemplated were specific sites on which hunting, fishing, or resource extraction activities took place on a regular and intensive basis. Examples might include salt licks, narrow defiles between mountains and cliffs, particular rocks or promontories used for netting salmon, or, in other areas of the country, buffalo jumps.

This definition seems to completely move past the word "tract" that was used in Delgamuukw and place the whole focus on the concept of "definite".  In plain English a "tract" generally means an "extended area of land" and is synonymous in some contexts with concepts such as a "district" or "region".  I suspect that most copy editors would have some difficulty in accepting without comment the use of the word "tract" to describe a salt lick or rock.   


If this is was what the Supreme Court of Canada meant by aboriginal title in Delgamuukw it is hard to see what they were doing sending the matter back to trial.  The plaintiffs in Delgamuukw clearly did not have this in mind in their pleading and the trial judgment likely would have happily conceded such places to them (save for the trial judge's view of extinguishment) and moved on.  The Gitxsan certainly would not have wanted to go back to trial to figure out their rights to the salt licks in their territory.


Third, the governments may come to regret this victory.  To date the governments have been concerned about aboriginal title because of the fact that they have viewed it as a more robust right than typical aboriginal harvesting rights.  In the eyes of the government as long as the Indians can hunt moose somewhere infringements of hunting rights will be easily justified.  The Court of Appeal takes a different view and appears to be determined to hold the Province to a much higher standard and to give much greater substance to the entire bundle of rights held by an aboriginal people.  Justice Groberman says:

[235] It seems to me that the plaintiff’s approach to Aboriginal title does not account for the fact that title is not the only tool available to provide cultural security to the Tsilhqot’in.

[236] Aboriginal rights of various sorts protect cultural security and safeguard the ability of First Nations to continue to engage in traditional lifestyles. Indeed, as British Columbia points out, the phrase “cultural security and continuity” was originally used in Sappier; Gray to describe the function of Aboriginal rights in general, not merely Aboriginal title.

[237] Aboriginal title, while forming part of the picture, is not the only – or even necessarily the dominant – part. Canadian law provides a robust framework for recognition of Aboriginal rights. The cultural security and continuity of First Nations can be preserved by recognizing their title to particular “definite tracts of land”, and by acknowledging that they hold other Aboriginal rights in much more extensive territories.

On the whole this is still a major step backwards towards the "bundle of rights" theory rejected by the Supreme Court of Canada in Delgamuukw but aboriginal people should test the Court on this invitation to look to more extensive aboriginal rights to protect their cultural sovereignty.  These rights need not be limited to pure "harvesting" rights.  For example, why should an aboriginal people who consistently excluded others from their territory prior to and at 1792 not be able to assert an aboriginal right to exclude others (even if they cannot prove the occupancy necessary to found the Court of Appeal's impoverished view of aboriginal title).  In this respect it is worth noting that the aboriginal people of the prairies and the Northwest Territories have been very successful in advancing their interests without recourse to aboriginal title.

Finally though this note of optimism has to be tempered by the fact that the Court of Appeal sends and explicit and disheartening message about the project of reconciliation and the recognition of aboriginal rights and aboriginal title -- namely that it is a project that is only really worth pursuing to the extent that it does not make vested non-aboriginal interests uncomfortable:

[239] It seems to me that this view of Aboriginal title and Aboriginal rights is fully consistent with the case law. It is also consistent with broader goals of reconciliation. There is a need to search out a practical compromise that can protect Aboriginal traditions without unnecessarily interfering with Crown sovereignty and with the well-being of all Canadians. As I see it, an overly-broad recognition of Aboriginal title is not conducive to these goals. Lamer C.J.C.’s caution in Delgamuukw that “we are all here to stay” was not a mere glib observation to encourage negotiations. Rather, it was a recognition that, in the end, the reconciliation of Aboriginal rights with Crown sovereignty should minimize the damage to either of those principles.

For aboriginal people the whole Section 35 project and the idea of reconciliation is only meaningful if it is likely to result in substantial positive change in the circumstances of aboriginal people. If this is limited -- even in areas of Canada that are largely uninhabited by non-aboriginal people -- to legal concepts and rights that do not interfere with Crown sovereignty or the "well-being" of Canadians then it is unlikely this idea of reconciliation is going to appeal to many aboriginal people.  Instead it is likely to reinforce the idea prevalent in aboriginal communities that ideas such as aboriginal rights, aboriginal title and reconciliation are empty phrases primarily designed to allow non-aboriginal people to feel redeemed and righteous about their own conduct and institutions.

The Tax Exemption a Year After Bastien

It has been about one year since the Supreme Court of Canada released its decision in Bastien Estate v. Dube, 2011 SCC 38, [2011] 2 SCR 710 and we now have some indications as to how the lower courts are applying this decision.  As expected, the result of this decision has generally been a more pragmatic openness to applying the tax exemption to protect income being earned by Indians who are based on the reserve and carrying undertakings that have some meaningful overlap with the reserve.  On the other hand, these decisions have not changed the status of employment arrangements that appear to be simply designed to move "off-reserve" work on reserve.  This development is consistent with the nature of the Supreme Court of Canada's decision, which really marks more of a change in the tone of the law rather than a radical re-working of the test.  The Williams test still stands as the test to be applied, but it is no longer dominated by concerns about the commercial mainstream.

The most important decisions showing this more expansive approach  in the wake of Bastien are Canada v. Roberts 2012 FCA 94 and Ballantyne v. Canada 2012 FCA 95 together with the similar tax court case, McDonald v. The Queen, 2012 TCC 437.  Each of these cases either directly or indirectly concerned the question of where income from fishing carried out from a reserve base should be treated as being situated for the purpose of the s. 87 tax exemption (note McDonald was an employment insurance case but following Williams this requires an analysis of the status of the underlying income that gave rise to the employment insurance benefits).  As is typical in these cases there is a laundry list of factors that link the income either to the reserve or tend to disconnect it from the reserve (for example, the fish are all caught off-reserve but the boats are launched from the reserve but the fish are sold to an on-reserve co-op but the co-op's customers are off-reserve).  In all three cases the courts arrived at the conclusion that there was sufficient connection to the reserve to situate the income on-reserve and so attract the protection of s. 87.  What is notable in each case there is a near absence of a "commercial mainstream" analysis such as that that dominated the law after the Recalma decision. 


By contrast in Marcinyshyn v. The Queen, 2011 TCC 516 the Tax Court continued to reject the National Leasing approach to trying to move off-reserve social services earned income on-reserve through creative structuring of the employment relationship.  The Court in this case continued the pattern established in earlier cases such as Shilling where the court declined to find that the facts that the employer was situated on reserve and the work was for the benefit of an aboriginal population sufficed to put the income on-reserve where the services were predominantly delivered at urban locations situated far from any reserve.


The Federal government has filed leave to appeal applications in the Robertson and Ballantyne cases.  From the perspective of the Federal government these cases appear to give weight to fact that the fishing was occurring on traditional territory and/or was connected to traditional fishing practices.  Thus, the government argues, the Federal Court of Appeal erroneously moved away from a focus on whether the income was on or off reserve to an analysis of whether the income was tied to the traditional way of life in some fashion.  In effect, the government argues, the Federal Court of Appeal has now completely reversed the Recalma analysis and moved toward a position that considers whether or not the income is in some way "traditional" and, if such a link can be made at all, gives that link predominant weight, even if the actual income involves sale into the commercial mainstream.


In fact however this does not actually appear to be what the Federal Court of Appeal is doing.  What is really happening in these cases is an attempt by the Federal government to introduce into the s. 87 test a requirement that the income be "predominantly" on-reserve.  That is, in order for income to attract the s. 87 tax exemption it must be show that it has a greater connection to the reserve than to off-reserve lands.  The difficulty with this approach is that this runs against the wording of s. 87 (which does not require on its face that the income be "exclusively" or "predominantly" on-reserve) and the larger principle that ambiguous phrases should be interpreted in favour of the aboriginal people.  Looked at grammatically it is entirely reasonable to say that income can be related to both reserve and non-reserve lands and can therefore be viewed as being "on" both.  Once this determination is made the income satisfies the test for the application of the s. 87 exemption (that is, it is "on" reserve) and the exemption should apply.

Province Moves Quickly to Repeal Tax Exemption

Last month the Musqueam won an interesting case that held that certain rural lands held for Indian bands were tax exempt under Provincial law.  The province has now responded by repealing part of the exemption significantly narrowing its reach by s. 86 of the Budget Implementation Bill, 2012.

Pity they do not act as quickly to solve other aboriginal problems.

Pro Bono Charity is No Substitute for a Proper Legal Aid System

Governor General David Johnston -- who has never practiced private law or run a law firm and for the most part has held a series of tax payer funded academic or public service positions -- proposes that as a part of ensuring access to justice lawyers should dedicate about 10% of their practices to providing pro bono legal services (see the interview given in December 2011 in the Canadian Bar Association's National).  This is a misguided solution for a real problem -- the excessive cost of legal services and the lack of access to justice for the poor -- that would poorly serve those in real need.  While couched in terms of public service, it actually reinforces a trend that has taken hold over the last 30 years, of proposing individually directed charity by the willing privileged as a substitute for consistent, publicly supported provision of essential services at reasonable levels based upon non-discriminatory criteria.  While apparently noble in its intention, a move to a more consistent reliance on pro bono services as a means of providing for access to justice will, I suspect, tend to produce results that are unreliable,unevenly delivered and likely discriminatory -- especially in respect of the provision of services to aboriginal people.

As a starting point let me clear that I do not actually see legal aid as being the primary solution to the access to justice issue.  That is a systemic problem that can be addressed in a number of ways that we have barely begun to explore.  First, expanding the supply of legal service providers in order to address the demand for legal services is the most sensible way to proceed in the long term.  This can be done by expanding the number of lawyers or, as has been done in other jurisdictions (such as the UK) by expanding the range of professionals who can provide the services.  If lawyers are unwilling to provide cost-effective or geographically accessible services then perhaps the monopoly on the provision of those services should be narrowed to allow others who are willing to provide the services in a cost-effective way to step in to fill the gap.  The established profession may then feel more compelled to ensure that law schools produce lawyers willing to work in rural and suburban areas or to provide legal services outside of the glamour downtown practices or the cozy confines of government.

Second, we should look hard at what is generating the demand for legal services and continue to try to address whether or not we can address these issues.  For example, a certain amount of legal demand arises out of the existence of overly complex processes that can only be navigated with the assistance of a lawyer or other professional.  Another issue is the criminalization of social behavior that in fact has widespread acceptance (eg the criminalization of drug use).  Abolishing certain drug laws would simply remove a large demand upon the legal system both directly (by removing the drug charges) and indirectly (potentially reducing the prohibition related crimes like petty theft).  Yet another possibility is simplifying the substantive law, as was done with child support where endless fights over how support should be calculated have been significantly simplified (although not entirely limited) through the introduction of binding tables to calculate child support.

However, inevitably this will not completely fill the void between the need for high end legal services in areas like serious criminal law and the body of lawyers available to fill that need.  Serious criminal cases require the assistance of lawyers and in many cases specialized lawyers.  Unfortunately, many of the perpetrators of serious crime (leaving aside organized gangs and white collar fraudsters) are not people who have easy access to the large sums of money necessary to hire these lawyers.  Note that does not mean they do not have the money available to pay hourly rates of $750 per hour -- usually they do not have the money to pay hourly rates (or the equivalent) of $25 per hour for what it would take to fight a serious criminal charge.  Given that the modern reality is that most law firms that can handle serious crimes likely cannot break even for less than $125 per hour, this means that these services will be simply unavailable unless the services are donated or paid for through some public process.

The Governor-General essentially proposes donation or charity as the core solution to the problem -- in effect as part of the price of self-regulation.  However this suggestion is blind to certain realities about how pro bono work is doled out by the legal profession.  To see this it is useful to look at the way in which legal aid is typically distributed.  Legal Aid (subject to its overall budgetary constraints) is distributed by means of a process which assesses financial need, degree of legal need and, particularly for appeals, merit.  The criteria are transparent (eg "income must be under $X" or "aid is only available if incarceration is a risk") and administered independently.   Moreover, the aid can be distributed through the public purse geographically so that it is available in remote areas and also in way that is non-discriminatory on the basis of race (ie aboriginal people an other racial minorities are able to get legal aid).

Pro bono services by contrast are distributed largely at the whim of the lawyer or law firm.  First, there is the basic problem of how the person needing pro bono services comes to the attention of the lawyer.  In some cases it is through the intervention of an outside agency such as a charity or a church group but as often as not it is through the intervention of a friend or family member.  These methods automatically tend to introduce various selection biases into the process of giving access to pro bono legal services -- for example, not a lot of aboriginal people have friends and relatives who work in law firms.  Second, when the requests are made, the decisions as to which cases to take are influenced by factors such as geographic proximity and attractiveness of the client.  Thus it is undoubtedly easier to get pro bono services if you are a young, white woman university educated woman in Toronto who has had an unfortunate encounter with the law, than if you are an angry, aboriginal man with a substance abuse problem living in Kenora.  The latter may need the legal services more but the former is more likely to get it.  Third, and this has to be faced honestly, much pro bono work is done as a form of business development -- it is designed to raise profile either in a potential client community or in the larger community.   Thus potential long term benefit is an inevitable part of the analysis of whether or not pro bono services will be delivered.

Another factor to consider is that within the profession the burden of doing pro bono work falls unevenly amongst members of the profession.  There simply is not that much call for pro bono services involving the delivery of on the ground legal services by tax lawyers, real estate lawyers and corporate lawyers.  The Governor-General would see these lawyers doing their pro bono services by toiling at CLE conferences and perhaps speaking at high schools on law day.  They would seldom have to take on a difficult trial involving a drug addled street person or an unsavory character charged with some socially odious crime.   It is this concern that actually led to the development of the earliest forms of legal aid where essentially the profession would fund legal aid collectively by all contributing money toward a fund that would support lawyers willing to take on lower paying criminal cases.

In the end reliance on pro bono systems as a means of addressing the shortage of legal services suffers from the same flaws that excessive reliance on charity for the provision of any service does -- it introduces a high level of arbitrariness that arises out of the circumstances and whims of the donors.  If the delivery of pro bono services is mandated then it ceases to be charity and starts to become a form of taxation yet one that is still subject to arbitrary distribution.  Better to instead have a publicly funded system we all share in funding in the way we fund other public services (I suspect that the profession would even be willing to kick in a levy -- although I doubt a 10% tax).  Society can then better control how those services are delivered (legal aid certificates vs. clinics, for example) and how this good is distributed (criteria, independent committees) as well as the total overall cost.  The profession would still be free to provide pro bono services on top of these core services but this would not result in the poor, the aborginal, the marginalized -- the unconnected -- being deprived of basic legal services when faced with serious criminal charges or other legal proceedings.

Fish Farm Class Action Derailed by Court of Appeal

The British Columbia Court of Appeal, in a decision released last week, overturned an earlier decision by the British Columbia Supreme Court to certify a class action testing the effects of open pen in water fish farms on wild salmon stocks.  The claim sought to certify a class of all "aboriginal groups" who held or asserted aboriginal fishing rights in the Broughton Archipelago in a claim alleging that the operation and authorization of open pen fish farms infringed those rights.  In a bold move about a year ago Justice Slade certified this class in the face of strenuous opposition by the two governments and (at the appeal) the industry.

The Court of Appeal, in a complex ruling, dismissed this action for reasons that require an intertwined analysis of aboriginal law and class action principles.  In essence though the Court held that the issues created by answering the question of "who are the aboriginal groups who hold fishing rights" involve such complex problems that the proposed class is not capable of being certified.  In essence the Court relied upon the mess that has been created by the failure of the courts and the governments to devise a mechanism to recognize First Nations to say that these First Nations could not be brought together to challenge the development of a controversial industry in one small area of British Columbia.  This will ultimately be a productive force for challenging government decisions but there are years of litigation ahead to really develop the jurisprudence in this area properly.

This case highlights the challenges that will face people seeking to use the court system to protect the environment face.  For the most part ordinary citizens do not have substantive rights to a healthy or clean environment.  Indeed, when ordinary citizens in the early part of the twentieth century began to use property rights to ward of polluting industries (using the tort of nuisance) the legislatures and Parliament largely overran these rights by legislating away the rights of property owners (this is essentially why a group challenge to noise pollution at YVR failed a few years ago, despite the trial court's finding that there was a nuisance -- Sutherland v. Vancouver Airport Authority 2002 BCCA 416).  Even aside from these legislative issues, the recent decision of the Ontario Court of Appeal in Smith v. Inco 2011 ONCA 628 illustrates the formidable hurdles that ordinary property owners face in trying to advance environmental claims rooted in tort law.  Ordinary citizens largely did not have a chance as public nuisances can only be advanced by the Attorney General.

Aboriginal people do have special rights to harvest resources which are protected by the Constitution.  These rights cannot be legislated away at the whim of the government but as this case illustrates they create their own challenges.  Aboriginal litigation has been expensive to press ahead and often takes years.  As a result there is often nothing left to fight over by the time the courts render a decision.  Courts have pushed back against governments being overly aggressive in taking advantage of this (by issuing injunctions, requiring consultation and making advance costs orders) but despite this at times aboriginal rights and title litigation seems to be modeled on a Bleak House approach to justice.  This case demonstrates how we have gotten ourselves in a position where we (the non-aboriginal people) cannot even figure out how to see aboriginal people, much less do justice by them.

The best and most sensible place for many of these issues to be dealt with is in a sensible environmental assessment process.  Many of the controversies surrounding fish farms flow from the reality that there has never been a real public transparent environmental assessment of the operations of open net fish farms situated in sensitive salmon bearing regions.  Instead the industry has largely been able to grow in a piecemeal basis to a point where now there are very large vested interests opposed to really taking a hard look at what is going on.  With the Federal government's move to further limit the application of the Federal environmental process and the Province's commitment to rarely engaging in formal environmental assessment, it is unlikely this will change any time soon.  Fundamentally this illustrates how in the end the courts and bureaucratic processes are not a substitute for public engagement in political processes.  All of these issues will only be addressed by the governments once there is a perception that there is a public expectation that they will be addressed.  The courts have a role in creating momentum around this but the hard work of political engagement has to be done in the public through the press, parties and polls.

BC Tax Decision Favouring First Nations

In Musqueam First Nation v. British Columbia (Assessor of Area #09),  2012 BCCA 178 the British Columbia Court of Appeal sided with the Musqueam and held that the lands they acquired as a part of a reconciliation agreement and were held in trust for the band were tax exempt under British Columbia's Taxation( Rural Areas) Act.  In reaching this conclusion the Court held that the exemption arose not from s. 87 of the Indian Act but from a provision of the provincial taxing statute which essentially gives First Nations an opportunity to extend their land base in rural areas and enjoy a tax exemption from property tax similar to that enjoyed on reserve.


This decision will make the prospect of First Nations acquiring new lands for economic development and uses more attractive as they will not be saddled with significant tax bills. These tax bills can be crippling to many First Nations, particularly as small bands are often low on capital in the develop stages of many off-reserve projects.  This welcome decision will make it easier for First Nations to acquire land, protect it and engage in economic development off-reserve while enjoying a modicum of the benefits that comes with on-reserve lands.

Limiting First Nations Input in Environmental Processes

The Globe and Mail recently reported on a request by Taseko Mines to limit the input of First Nations in the upcoming environmental review of the revised Prosperity Mine proposal.  Two specific complaints about the former process were the inclusion of an "aboriginal activist" on the panel and the receipt of somewhat unconventional evidence by the aboriginal participants.  It is suggested that this led to bias and neglect of good science.

It is not unusual for proponents to complain quite vociferously about aboriginal participation in processes as being characteristic of bias and any aboriginal perspective on issues as being poor science.  Oddly they rarely see the inclusion of industry geologists, energy sector lawyers or long-time Alberta energy sector civil servants in a review process as potentially exhibiting any form of bias toward proponents.  It says something about the mindset of these people in this day and age that one could say (without hanging your head in shame) that Hans Matthews (one of the Enbridge JRP members) is objectionable because he is an aboriginal person from a remote community as opposed to a long time beneficiary of the resource sector.  In reality (as Minister Peter Kent seems to have recognized), neither is a grounds for objection per se, panels such as these are designed to include different perspectives and to add legitimacy in the eyes of all communities by seeing components of their communities represented in the make-up of the decision maker.

As for the content of the science -- well panels are mandated to consider traditional knowledge, traditional ecological knowledge and also oral history evidence.  This evidence is received not just to assess the effects on the biophysical systems at issue but the effects on the people who have to live with the project into the future.  These effects can be physical but can also can include the psychological effects that come with knowing that your local area has been put at risk or just generally degraded by being turned from a wilderness to an industrial site.  Besides, to use an example from the article, is it really that outrageous to present a play showing the destruction of a fish population when the explicit plan for the project is to destroy a lake called "Fish Lake" and turn it into a tailings pond.

This debate shows the difficult the Harper Government faces in its desire to streamline and limit environmental review processes.  In Haida the Supreme Court of Canada mandated consultation with aboriginal people in order to assess the impacts of proposed development upon them,their rights and their interests.  As the companion Taku case demonstrated, however, robust environmental review processes with  substantial participation by aboriginal people in the design and implementation of the assessment can serve to discharge this duty to consult.  The difficulty arises as EA processes become less thorough, less comprehensive and less participatory -- then their ability to address the consultation obligation is diminished and the question of how that duty to be fulfilled remains.  In its recent budget and environmental streamlining processes, the Federal government recognized the challenge of dealing with consultation in the face of anaemic environmental assessment processes.  Now the question is how will they deal with that challenge?

Damages for Interfering with Aboriginal Fishing Rights

In Matsqui First Nation v. Canada (Attorney General), 2012 BCSC 492, the British Columbia Supreme Court rejected a recent attempt by the Department of Fisheries and Oceans to derail a claim by the Matsqui First Nation for damages for DFO having improperly denied them access to their aboriginal fishing rights.  The Matsqui sought damages in the Supreme Court for management decisions made in the 2010 fishing season that Matsqui says infringed their Section 35 aboriginal fishing rights.  Canada brought a motion seeking to strike out the claim and bring the case to a halt on the basis that it should have been brought in the Federal Court.


Justice Fenlon rejected the greatest part of this attack.  She applied the recent series of Supreme Court of Canada cases concerning the doctrine of collateral attack to hold that the claim for damages -- even if it was based upon an attack on the constitutionality of a Federal decision -- could be brought in the Supreme Court rather than the Federal Court.  Justice Fenlon rejected this proposition holding that the Telezone line of cases essentially limited the doctrine of collateral attack in these circumstances (and the jurisdiction of the Federal Court) to situations where a claimant actually seeks to set aside a decision or have an order made forcing a Federal minister or board to do something.


This decision is welcome in that it continues the process of simplifying the jurisdictional issues created by the existence of the Federal Court when decisions or actions by the Federal government are being challenged.  It is still unfortunate though that if one wants the Federal government to actually do something proceedings must be taken in Federal Court (and must be taken by way of judicial review).  This creates real challenges when a claim is launched against joint Federal-Provincial undertakings.  For example, aquaculture is jointly regulated by the Federal and Provincial governments.  The Federal governments issues licences to allow the aquaculture activities to occur while the Provincial governments issue the foreshore tenures and water lots needed to actually physically situate the activities in the environment.  Naturally consultation and infringement issues often arise in this context with both governments and often the adequacy of the consultation process can only be appreciated by looking at both government's actions.  Unfortunately to question the Federal licence one must pursue the issue in Federal Court (if one wants something done about the decision) while the proceedings against the Province must be pursued in Supreme Court.  A move to resolve this jurisdictional problem and allow for a "one challenge -- one court" approach would be welcome.

Injunction Issues Against Implementation of Federal Income Assistance Policies

In Simon v. A.G. (Canada) 2012 FC 387 Madam Justice Simpson of the Federal Court has issued an injunction restraining the implementation of current Federal policies that (arguably) require bands delivering income assistance to deliver such programs in a way that is identical to provincial income assistance programs.  This policy -- which has been emerging over the last decade or more -- is controversial in aboriginal communities as it is often argued that this defeats the whole purpose of First Nations accepted the delegation of a role in the delivery of income assistance and other programs; namely to all First Nations to use their inherent right of self-government to develop programs which more appropriately address the needs of their communities.  


This desire reflects the reality that the context in which income assistance is delivered in aboriginal communities is very different than that in which it is delivered in non-aboriginal communities.  In aboriginal communities the income assistance receiving population can be very high (upwards of 90% in this case); rural or at least extra-urban in character; and culturally and racially separate.  There may also be very different circumstances in terms of relationship to family and place which can affect issues such as the provision and funding of accommodation and the willingness or ability of aboriginal people to move in order to obtain wage employment.   Without the ability to respond to these differences, Indian bands often find themselves in the unhappy position of having to bear the administrative and political costs of delivering income assistance without any meaningful power to devise alternate policies.


In Simon the Federal Court faced a challenge to the implementation of this policy founded in the duty to consult.  The decision is informative if for no other reason than it illustrates the incredible complexity of this area of policy and programming and its interaction with aboriginal and administrative law.  In reading the decision it quickly becomes clear that there is no common ground whatsoever between the Crown and the aboriginal people over the content of the program, the effect of the program or the applicability of the duty to consult.  Indeed there is not even common ground on whether or not there has even been a decision. Even the Court in analyzing the question of whether or not there is a serious issue to be tried treads carefully around the issue of whether any duty to consult arises out of classical administrative law principles or out of the modern constitutional duty to consult.  How this case will evolve will be interesting to see particularly since it is going to squarely face the court with the practical realities of the impoverishing effects of modern social assistance policies in Provinces like New Brunswick.  As Justice Simpson noted in finding that irreparable harm would be suffered if the injunction was not granted:

[77]           The Ontario Superior Court has held that impoverishment, social stigma and the loss of dignity associated with severe poverty can constitute irreparable harm. In El-Timani v. Canada Life Assurance Co., [2001] OJ No 2648 (SC), 106 ACWS (3d) 526 an insured individual with a severe back injury had been receiving disability payments for four years when these benefits were abruptly terminated by his insurer. In allowing an injunction requiring the insurer to continue paying the insured’s benefits until trial, Madam Justice Molloy of the Ontario Superior Court accepted at paragraph 9 that “the loss of enjoyment of life resulting from a subsistence level existence pending trial is not calculable in money.”

[78]           This issue was also considered in Ausman v Equitable Life Insurance Co. of Canada, [2002] OJ No 3066 (SC), 114 ACWS (3d) 1096. At paragraph 52, Mr. Justice Henderson said:

The long term effect of the loss of security and the impoverished lifestyle constitutes more than the loss of money. It constitutes irreparable harm.

[79]           In my view, the estimated decline in income assistance rates under the Policy and the potential for ineligibility will cause emotional and psychological stress amounting to irreparable harm for some Recipients. Individuals who are reliant on income assistance are especially vulnerable even to small changes in the resources available to meet their basic needs and, for this reason, I have concluded that the Applicants have demonstrated irreparable harm.