Essays on Canadian Law and Decolonization Bruce McIvor Preface AAddvvooccaaccyy iiss nnoott rreessttrriicctteedd ttoo tthhee CCoouurrttrroooomm.. TThhee eessssaayyss iinn tthhiiss ccoolllleeccttiioonn aarree ppaarrtt ooff mmyy ccoonnttrriibbuuttiioonn ttoo advancing and protecting Indigenous Peoples’ rights in Canada. TThheeyy aarree ggrroouunnddeedd iinn mmyy ttrraaiinniinngg aass aa llaawwyyeerr aanndd hhiissttoorriiaann,, informed by my legal work on behalf of Indigenous Peoples’ across Canada, and inspired by my clients’ strength and optimism. I hope yyoouu fifi nndd tthheemm iinnffoorrmmaattiivvee,, eennggaaggiinngg aanndd eennccoouurraaggiinngg.. AACCKKNNOOWWLLEEDDGGEEMMEENNTTSS I am indebted to my colleague Kate Gunn for reading and commenting on these essays. Her insightful and critical eye has improved each and every one of them. My family understands and supports my work on behalf of Indigenous people. They are the best of what I aspire to be. I have the honour and privilege to work with principled, committed and inspiring clients all across the country. This volume is dedicated to them. Bruce McIvor, PhD First Peoples Law Corporation FEBRUARY 5, 2018 First Peoples Law 1 Contents The Duty to Consult as an Ongoing Obligation 83 ABORIGINAL TITLE The Age of Recognition: The Signifi cance of the Tsilhqot’in Decision 7 Breathing Life Back into the Duty to Consult 87 The Downside of the Tsilhqot’in Decision 15 The Duty to Consult—The Groundhog Day Conundrum 93 Columbus’ Ghost: Past Infringements and the Duty to Consult 97 TREATIES The Duty to Consult—A Roadblock to Direct Action 101 Is Canada No Longer Responsible for Historical Treaties? 21 Good News for the Duty to Consult 105 Provinces Burdened with Responsibility for Fulfi lling Treaty Promises 25 Negotiate or Litigate? 109 What Tsilhqot’in and Grassy Narrows Mean for Treaty First Nations 31 The Duty to Consult—A Narrow Vision 113 The Piecemeal Infringement of Treaty Rights 35 How to Fulfi ll the Duty to Consult 119 THE MÉTIS The Duty to Consult at the Supreme Court in 2017 125 A New Legal Remedy for Indigenous People 45 The Duty to Consult—A Second-Best Alternative 49 TOWARDS DECOLONIZATION Why Quebec but not Indigenous Appointments to the Supreme Court? 137 What Does the Daniels Decision Mean? 53 Canada’s Misguided Land Claims Policy 141 THE DUTY TO CONSULT The Case for Denying Indigenous Rights 146 Provinces’ Have Every Right to Set Conditions on Pipelines 61 Colonialism’s Disciples: How Government Undermines Indigenous People 149 A Pipeline Too Far: How to Stop Kinder Morgan 65 How the Canadian Legal System Fails Indigenous People 153 The Inadequacy of Environmental Assessments 69 Indigenous Identity and Canadian Law: A Personal Journey 161 Environmental Assessments and the Duty to Consult 73 Is the Duty to Consult Clear as Mud? 79 171 FIRST PEOPLES LAW First Peoples Law 3 4 First Peoples Law 5 case comment Tsilhqot’in Nation v. British Columbia, 2014 scc 44 june, 2014 The Age of Recognition: The Signifi cance of the Tsilhqot’in Decision The release of the decision on June 26, 2014 marked the Tsilhqot’in beginning of the post-denial period of Indigenous rights. Like any new day, promise and hope abounds. What the future will bring is up to all Canadians, Indigenous and non-Indigenous alike. But fi rst, it is time to take stock of what means. Tsilhqot’in ABORIGINAL TITLE Th e dots-on-a-map theory of Aboriginal title is dead. Th e Supreme Court confi rmed that Aboriginal title can include territorial claims and that the occupation requirement for proof is not limited to intensive, regular use of small geographical sites (e.g. fi shing spots and buff alo jumps). Rather, regular use of large swaths of land for traditional practices and activities (e.g. hunting, trapping and fi shing) when coupled with exclusivity may be suffi cient to ground a claim for Aboriginal title. Th e implications are profound. Government’s myopic focus on dots-on-a-map is now indefensible. Indigenous people are now able to seek recognition of their territorial claims to Aboriginal title. For those, like the Tsilhqot’in, who are ultimately successful, the change will be dramatic. Subject to justifi able infringements, they will enjoy the right to exclusively use and occupy their Aboriginal title lands, to benefi t from their lands and to decide on how their lands will be managed. In other words, they will, in large part, enjoy the rights and privileges of their ancestors. Over a century of denial will be put to rest. 6 First Peoples Law 7 8 First Peoples Law 9 THE DUTY TO CONSULT TREATIES Th e duty to consult has new life. Th e jig is up. Tsilhqot’in is about more than how to prove Aboriginal title and what happens if you New government mandates for the British Columbia treaty process are necessary. It succeed. For Indigenous people across Canada it is also about the here and now. is hard to imagine why Indigenous people would join or continue to participate in the current process with its pre-determined, non-negotiable government limitations when Th e possibility of territorial claims for Aboriginal title based on traditional activities will the reality and promise of Aboriginal title has been confi rmed. shift the duty to consult equation in favour of Indigenous people. Government and industry will have to step up and acknowledge the new reality—ostriches will be playing a high- Th ose who assume that Tsilhqot’in will not aff ect Treaty people are mistaken. For risk game. Th e Court in Tsilhqot’in confi rmed that a failure to meaningfully consult and Indigenous people with pre-Confederation treaties (e.g. the Douglas treaties on accommodate Indigenous people prior to a successful claim for Aboriginal title will leave Vancouver Island and the peace-and-friendship treaties in the Maritimes) the government and industry exposed to cancelled authorizations and claims for damages. implications are obvious. Th eir claims to Aboriginal title can now be pursued with renewed confi dence. Th eir demands that government obtain their consent before As the Court specifi cally stated, there is a simple and eff ective way for government and exploiting their lands have new credibility. industry to avoid the uncertainty and risk they now clearly face—obtain the consent of Indigenous people before you mess with their lands and resources. Tsilhqot’in is also vitally important for Indigenous people with one of the numbered PROVINCIAL LAWS treaties negotiated in Ontario, the prairies, British Columbia and the north since Confederation. Th e Provinces have assumed a heavy burden. For generations successive provincial and federal governments have proceeded on the In permitting provincial laws to apply to Aboriginal title lands the Court made new law assumption that through these treaties Indigenous people ceded, released and surrendered and saddled the provinces with hefty legal obligations. Th e Court clarifi ed that when their Aboriginal title to so-called Crown lands. In contrast, Treaty people have widely Indigenous people succeed in confi rming their Aboriginal title a province will not simply maintained that their ancestors did nothing of the kind. Th e numbered treaties for them be able to apply their laws through box-ticking consultation. Th ey will be subject to the are about establishing respectful, mutually benefi cial relationships. Th e Supreme Court’s much more onerous burden of obtaining consent or justifying infringements. endorsement of a liberal test for Aboriginal title encompassing territorial claims based on Th e Court’s justifi cation test has largely fallen by the wayside since its 2005 decision traditional Indigenous practices will embolden Treaty people to repudiate the language of in Mikisew in favour of less onerous—and often unsatisfactory—consultation obligations. ‘cede, release and surrender’ while they assert Aboriginal title over their ancestral lands. When the provinces awaken to the reality of what it takes to justify an infringement, they WHERE TO FROM HERE? may well regret their ‘success’ on this issue. Now is the time to honour, thank and recommit. Th e implications extend beyond Aboriginal title. Based on its reasoning in Tsilhqot’in the We honour those, both Indigenous and non-Indigenous, who did so much in the long Supreme Court in Grassy Narrows opened the door to provinces regulating treaty rights. struggle to have Aboriginal title recognized and confi rmed but did not live to see their Logically, the same onerous obligations to obtain consent or meet the high standards of dream realized. justifying an infringement of Aboriginal title apply to Treaty rights. Th e days of shuttling Treaty rights to the side through pro forma duty to consult processes is hopefully at an Th anks are owed to the current generation who inherited the weight of their ancestors’ end. Similar standards should also apply to uncontested Aboriginal rights. eff orts and did not shrink from the responsibility. And a recommitment is owed to future generations to ensure that this remarkable success is not undermined by complacency. Th e Supreme Court has handed all Indigenous people a mighty victory—now is the time to see that the promise is realized. 10 First Peoples Law 11 12 First Peoples Law 13 november, 2016 The Downside of the Tsilhqot’in Decision The Supreme Court’s 2014 decision was a watershed Tsilhqot’in moment. As I wrote shortly after the decision was released, it marked the beginning of the “Age of Recognition.” Largely lost in the deserved excitement was the downside of the decision. Tsilhqot’in Tsilhqot’in and Th ere were two main issues in Tsilhqot’in: can Aboriginal title exist on a territorial basis and, if Aboriginal title exists, can the provinces seek to justify its infringement? Th e fi rst Grassy Narrows are issue was decided in favour of Indigenous Peoples. Th e second was decided in favour of the provinces. likely to signifi cantly After Tsilhqot’in was argued at the Supreme Court, but before the decision was released, the question of the provinces’ power to infringe section 35 constitutional rights was impact the nature and again argued at the Supreme Court in the context of Treaty rights as part of the Grassy Narrows appeal. scope of protections My colleague, Kate Gunn, and I had the honour to make arguments on this issue on behalf of Wabauskang First Nation, one of the appellants in Grassy Narrows. Th e Supreme Indigenous Peoples Court in Grassy Narrows ultimately followed its decision in Tsilhqot’in and opened the door to provinces infringing Treaty rights. can expect for their Last fall I received an invitation from the editors at the University of New Brunswick Law Journal to revisit the issue of provincial power to infringe Aboriginal Title, Rights and constitutionally- Treaty rights. Like a dog with a bone, I couldn’t resist the opportunity. guaranteed rights. 14 First Peoples Law 15 Th e result is an article by Kate and I entitled “Stepping into Canada’s Shoes: Tsilhqot’in, Implications Grassy Narrows and the Division of Powers,” published in volume 67 of the University of Tsilhqot’in and Grassy Narrows are likely to signifi cantly impact the nature and scope of New Brunswick Law Journal. Th anks very much to the editors for an opportunity to get on protections Indigenous Peoples can expect for their constitutionally-guaranteed rights. the record in what I see as an unsupportable and misguided about-turn in Aboriginal law. Below is a summary of our article. Th e decisions increase provincial authority to legislate in ways that could infringe the rights of Indigenous Peoples. Early decisions since Tsilhqot’in and Grassy Narrows suggest Overview that courts are relying on the decisions as basis to affi rm the expansion of provincial In Tsilhqot’in and Grassy Narrows the Supreme Court disregarded existing law and jurisdiction over Aboriginal and Treaty rights, and by extension, land and resource dramatically reduced the federal government’s role when a province proposes to development. undertake activity that could negatively aff ect Aboriginal and Treaty rights. Th e decisions are contrary to many Indigenous Peoples’ understanding that their Th e decisions reduce constitutional protections formerly guaranteed to Indigenous relationship is with the Crown in right of Canada and they are entitled to look to Canada Peoples and signifi cantly expand provincial jurisdiction to make decisions which limit the to fulfi l the Crown’s obligations. exercise of Aboriginal and Treaty rights. Importantly, the provinces might ultimately rue the day the Court changed the law and Prior to Tsilhqot’in and Grassy Narrows the law was settled—Canada bore exclusive increased provincial authority over Aboriginal and Treaty rights. constitutional responsibility for regulating Aboriginal and Treaty rights and the doctrine Th e corollary of broadened provincial legislative jurisdiction is greater constitutional of interjurisdictional immunity operated to protect the federal government’s exclusive role responsibility. As the Court explained in Tsilhqot’in, justifying an infringement of a from provincial interference. section 35 right is no easy task. Except for instances where lands are being taken up, i.e. As a result, until 2014 Indigenous Peoples were entitled to rely on established law to put to a visibly incompatible use, it is now arguable that the provinces must also obtain prevent provinces from acting outside of their constitutional sphere and attempting to First Nation consent or justify infringements of Treaty rights. justify infringements of Aboriginal and Treaty rights. Th e provinces have clear responsibility for fulfi lling outstanding Treaty promises and In Tsilhqot’in the Supreme Court made the fi rst declaration of Aboriginal title in cannot simply hide behind the federal government’s inaction. For example, there is no Canadian history. However, the Court also reduced Indigenous Peoples’ ability to rely principled reason for the provinces to refuse to negotiate with First Nations for loss of use on the federal government’s exclusive legislative authority when provinces seek to enact compensation based on outstanding Treaty land entitlements. At a minimum, the cost of legislation aff ecting Aboriginal title and rights. According to the Court, provinces are enjoying the use and benefi t of Crown lands should include responsibility for ensuring now entitled to attempt to justify infringements of Aboriginal title and rights. Treaty obligations are promptly fulfi lled. Th e Grassy Narrows appeal centred on the issue of what limits exist on provinces that seek Looking Forward to “take up” land for forestry and other purposes pursuant to the numbered treaties. Based In Tsilhqot’in and Grassy Narrows, the Court ignored the historical and continuing on its interpretation of Treaty 3 and the constitutional division of powers, the Court held importance of Canada’s constitutional responsibilities and the promises it made to that the numbered treaties were with the Crown, not the federal government, and that Indigenous Peoples. provinces could “stand in Canada’s shoes” with respect to the fulfi lment and infringement of Treaty rights. For Indigenous Peoples, the decisions mean they must now deal with the prospect of provincial governments attempting to justify decisions that infringe Aboriginal and Treaty rights. For the provinces, it means fulfi lling the onerous obligations imposed by the Supreme Court for decisions aff ecting the rights of Indigenous Peoples. 16 First Peoples Law 17