Indigenous Law

Indigenous law and policy continues to be at the heart of much political and legal debate across the country. This is a good moment to assess the evolution of that debate, which will help to put recent political, legislative, and legal decisions in context.

In an important sense, the modern history of this critical subject begins with the abandonment of the White Paper by the government of Pierre Elliott Trudeau after his preferred approach faced such strong opposition from Indigenous leaders  across the country. The White Paper expressed clearly the desire from his Liberal government for a “fresh start” and what the government saw as a more  enlightened, progressive, and modern view of relationships between the Crown and Aboriginal peoples. In this view, the Indian Act was an embarrassing anachronism, historic treaties were outdated political documents, and Indigenous people would be better served by having no “special rights”—the federal government would give more money to the provinces, Indigenous people could deal on issues like health care, education and social services with those governments, and the federal bureaucracy would be dismantled.

The chorus of rejection that was met by the White Paper took the Trudeau government by surprise—but it was forced to make a complete about turn. A new generation of Indigenous leaders rejected the White Paper as out of touch, racist, and condescending, showing no understanding of the situation of Indigenous people, their historic and legal rights, and their insistence that their collective rights had to be recognized. As this political controversy was underway, the insistence by the leaders of the Nisga’a people in British Columbia, led by Frank Calder, that their rights had never been ceded or surrendered, and that they still held title in their traditional territory, was making its way through the courts. They met rejection in both the trial and appellate divisions in British Columbia, but the case at the Supreme Court took a very different turn.

The Calder case, as it is now known (Calder v. British Columbia (Attorney General), [1973] SCR 313) was a famously split decision. It was not a clarion call for Indigenous rights, but at the same time was a defeat for the arguments of both the BC and federal governments that if there was any such thing as Aboriginal title it had been superseded by the arrival of the British Crown and the subsequent governments that drew their sovereign power from the British North America Act and the creation of the province of British Columbia. The Supreme Court of Canada particularly in the dissent penned by Mr. Justice Emmett Hall, made it clear that the notion that there were no people or governments prior to the arrival of European settlers was a complete fiction, and that the existence of prior rights and title could not be swept away by notions of the power of conquest.

The Calder decision was the first indication that both federal and provincial governments were facing a Supreme Court that would point out that their powers and discretion were not absolute. This was reinforced by the inclusion of s. 35 in the Constitution during the patriation process, and the subsequent determination by the Supreme Court that treaty and Aboriginal rights had to be given some real meaning.

At the end of December 2018, Madame Justice Susan Hennessy of the Ontario Supreme Court issued her decision in the case of Restoule v. Canada, 2018 ONSC 114. The signatories to the historic Robinson Treaties of 1850 challenged the interpretation of their treaties by both the Ontario and Federal governments whereby they insisted that the annual treaty payment of $4 was an absolute cap and that the Crown had full discretion to maintain that cap. In her decision, Hennessy J made it clear that she disagreed with that view: the “common intention” of the parties to the Treaties was that the Crown was obliged to make orders for further payments when economic circumstances permitted the Crown to do so without incurring loss, and that the Treaties were a collective promise to share revenues.

“I find that the parties did not intend to limit increases to the annuities to $4 per person. The best possible interpretation of the parties ‘common intention’, the one that best reconciles their interests, is that the Crown promised to increase the collective annuities, without limit, in circumstances where the territory produces an amount as would enable the Government to do so without incurring loss. I find that this treaty promise, contained in both the Robinson Huron Treaty and Robinson Superior Treaty, is a treaty right protected by s. 35 of the Constitution Act, 1982. Further, the common intention was that the reference to £1 (equivalent of $4) in the augmentation clause is a limit only on the amount that may be distributed to individuals, and this distributive amount is a portion of the collective lump sum annuity payable to the Chiefs and their Tribes. This interpretation holds the parties in a relationship, looking toward the future together. I find that the interpretation that imposes a $4 per person cap on the annuities does not reflect either the common intention nor reconcile the parties ‘interests’; it suggests that the Treaties were a one-time transaction. As the historical and cultural context demonstrates, this was not the case; the parties were and continue to be in an ongoing relationship.”

The 132 page decision is a thoughtful review of the evolution of the treaty relationship between the Crown and the First Nations, as well as a careful application of the facts and the law. The Crown’s discretion in the interpretation and application of historic treaties is always subject to the Honour of the Crown and to judicial review.

The Restoule decision is an important elaboration of the views expressed by both Binnie J and McLaughlin CJ, in the Marshall case (R v. Marshall; R v. Bernard, 2005 SCC 43, [2005] 2 SCR 220), where the Supreme Court of Canada discussed the critical issue of how the courts needed to interpret treaties signed between the Crown and First Nations. The principle that the Court had to engage in an exercise of finding the common intent of the parties, based on both written record and an appreciation for indigenous culture and history, and then interpret the wording in a liberal and broad way with the premise that both sides would have come to the negotiations with deeply different backgrounds and expectations, is expressed most clearly in this important judgment.

This decision has considerable financial implications that go well beyond the immediate interests of the parties. The “historic treaties” of both the nineteenth  and early twentieth centuries contain both clauses dealing with payments and other obligations, as well as language about “cede and surrender.” The premise of the judgment of Hennessy J, is that the First Nations would only have made such a major concession of cede and surrender if they felt that the economic reward for such a concession was significant.

The negotiation of the so-called “modern treaties” since the historic Calder case have also thrown light on the difficulty with the historic treaties and the mutual obligations they have produced. The Court made it clear in Marshall that the notion that these older treaties are of historical interest only cannot withstand scrutiny. The more difficult question—and one which has yet to receive full, modern, judicial consideration—is whether the interpretation that both the provincial and federal Crown have of the meaning of the historic treaties can pass the tests of reasonableness and equity. As modern treaties become more complex and fulsome, and deal more broadly with issues of self-government and jurisdiction, it will be more difficult for both governments and the Courts to restrict the historic treaties and the vast territories they cover to the tight and tiny sandbox that is reflected in the Indian Act and how the Crown has exercised its prerogative over many years.

This is the issue that is opened by Restoule, and it is an issue of great legal, financial, and moral consequence.

An equally important issue has been raised by the Canadian Human Rights Tribunal in the Caring Society decisions. Cindy Blackstock, a social worker with experience in child welfare issues in both Indigenous and non-Indigenous communities, realized many years ago that there was a deep divide between the resources available to parents on and off reserve. She brought her claim to the Canadian Human Rights Tribunal, arguing that the discrepancy in this treatment was a breach of the Canadian Human Rights Code.

The federal government fought and continues to fight this case very hard, one suspects principally because they realized that this decision would have major financial implications. They argued that the Tribunal had no jurisdiction to deal with the issue, and it took a strong rebuke from the Federal Court of Appeal for the issue to be tried on its merits by the Human Rights Tribunal.

The Tribunal’s decision in First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2 was groundbreaking, and one of the first political determinations of the newly elected Trudeau government was to reject the idea of appealing the initial finding and award. This would have serious consequences, because the complainants naturally assumed that the government would immediately implement the decision. What has followed has not been a celebration, but rather a difficult exercise in the Crown insisting that the complainant and indeed the Tribunal had gone too far in the interpretation of the decision, and accusations of bad faith and foot dragging from the other side. 

The latest round of the saga, which is as of this writing is still ongoing, was a decision by the Tribunal to award damages to be awarded to individual complainants, and the Crown taking this decision to judicial review on the grounds that the Tribunal had gone beyond their jurisdiction in making such an award. The newly re-elected Trudeau government has insisted they are willing to negotiate a settlement based on the Tribunal’s finding of discrimination, but rejecting the amount of the award. Whether this produces a new settlement, or renewed litigation, is unknown at the time of this writing. There is also a class action pending on this, and other issues.

What remains significant is the rejection by the Tribunal of the foundational argument of the Crown, which was that it remains a matter of full discretion by the Crown to determine what payments with respect to child welfare are sufficient or adequate. In insisting that, in fact, the government had to comply with basic principles of non-discrimination and needed to ensure that its payments took full account of impact of expenditure on outcomes, it thus embraced the logic of affirmative action—it is not enough for spending to be “equal.” Spending must, in fact, be designed to make up for lost ground, and to take into account the impact of ongoing discrimination. 

The Caring Society decisions have implications that go well beyond child welfare. A recent class action case on the historic and ongoing impact of once called “Indian Hospitals” and another on the ongoing effect of inadequate treatment of drinking water in hundreds of communities are just the tip of the proverbial iceberg. The bills for Canada’s discriminatory policies and practices, and their ongoing impact, are coming due.

These issues will not be remedied in a year, or in one or two landmark decisions. But there will be no avoiding them.

British Columbia has been at the centre of national policy making, and court decisions, since before Confederation. The judgments in the Calder case from the trial division to the BC Court of Appeal to the Supreme Court of Canada are a reflection of the deep divisions in both legal and political opinion about some of the most basic questions about our country: How did Indigenous people live before first contact? What legal and political structures existed before the arrival of European settlers? What is the current legal significance of how relationships between the Crown and Indigenous people were established, at different times and in different parts of the country? What are the implications of those relationships today, whether formalized in a treaty or not?

All these questions, and more, are facing British Columbia, Canada, and First Nations governments and leaders as the province and country wrestle with the movement of both oil and natural gas. Modern policy making really begins with the work of Thomas Berger on the Mackenzie Valley pipeline starting in 1974. Appointed as Royal Commissioner after being elevated to the Supreme Court of British Columbia, Berger J had been a lawyer in the Nisga’a trials which led to the Calder decision. His report concluded that Indigenous communities had to be given more time to consider the impacts of the pipeline on their way of life, the natural environment, and their lack of political power. The federal government reluctantly acceded to his recommendations, and the way he conducted his commission has rightly been seen as a model process in terms of genuine consultation and listening, and an eloquent effort to tell all Canadians about who were the people of the Northwest Territories and why they believed as they did.

After expressing some strong thoughts about the need to include s. 35 in the Constitution, Berger J returned to private practice and has remained a leader in the legal community on these critical issues. He served as counsel to the Tsilhqot’in people in their fight for Indigenous title to their lands, and was successful. 

One of the key questions arising from the Tsilhqot’in (Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 SCR 257) decision is if Indigenous title has been acknowledged as belonging to a First Nation does that mean that a community then has a veto over future development? McLaughlin CJ, who wrote the decision for the Supreme Court of Canada, made it clear that while the powers of the federal and provincial Crown were limited by s. 35 rights (including Indigenous treaty and title rights), the underlying “radical title” that belonged to both the federal and provincial governments meant that the Crown could limit or override Indigenous title subject to the requirement that the Crown accept its fiduciary duties, including its obligations to act in a manner that reflected its duty to consult and accommodate (as set out in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 SCR 511 and other decisions).

So, “the Crown taketh away, and then giveth, and then taketh away again.” While McLaughlin CJ insists that the doctrine of terra nullius has never applied in Canada, the Court repeats the notion that the underlying title to all of Canada is vested in the federal and provincial Crown, and that Indigenous title and rights as set out in s. 35 are therefore limited by that “reality.”

To be clear, the standard for justified infringement of Aboriginal title is quite high. At para 127 of Tsilhqot’in McLaughlin CJ writes: 

“Granting rights to third parties to harvest timber on Tsilhqot’in land is a serious infringement that will not lightly be justified. Should the government wish to grant such harvesting rights in the future, it will be required to establish that a compelling and substantial objective is furthered by such harvesting.”

An argument about general economic benefit would not be enough. It would have to be “compelling and substantial.”

This is the crucial backdrop to the current decisions in British Columbia concerning the two pipeline proposals that have involved so much recent controversy, a process that will extend well in 2020 and beyond. It is important to remember that the trilogy of Calder, Delmaguukw (Delgamuukw v. British Columbia, [1997] 3 SCR 1010) and Tsilhqoti’in all involve the traditional territories of First Nations peoples in northwestern British Columbia. It is also important to remember that Indigenous governance in these territories has a long history that was, for a long time, unrecognized and ignored by both the federal and provincial Crowns.

The Indian Act of 1876, with its many amendments and changes since that time, created a framework of governance that does not recognize anywhere traditional, hereditary government structures that have been maintained in British Columbia for far longer than in most other parts of the country. Indeed, many traditional practices like potlatch and other ceremonies that celebrated these traditional ways of life were explicitly outlawed in the Indian Act for many years.

When the Judicial Committee of the House of the Lords was faced with a  challenge from the Six Nations Haudenesaunee to the Indian Act structures in the 1920s they made it clear that the Indian Act bands created by that legislation were the only basis upon which the Crown could deal with the First Nations. Governments based on heredity and clan structures no longer had the right to claim they represented Indigenous people. Those powers had been granted exclusively to First Nations whose Chiefs and band councils had powers set out in the Indian Act, and nowhere else.

Their lordships, and the federal Crown no doubt, hoped that this word from that heart of the Empire would end any controversy. But of course, such was not the case. Indigenous modes and structures of governance have continued to exist in many different parts of the country, but particularly in British Columbia. As time has gone on, both provincial and federal governments have, in practice, recognized the fact of these structures, and have included them as part and parcel of the process of negotiation, consultation and negotiation that has been a mainstay of the Crown/First Nation diplomacy since the mid-1970s.

In British Columbia, for example, it is now a widely recognized fact that traditional clan structures have a place at the table in discussions on issues reflecting the long- term uses of the land, water, and air. Governments and businesses fund groups that are seen as having a stewardship role in the life of the First Nation. It is worth noting parenthetically that in recent controversies around demonstrations and road blockades near the Six Nations reserve near Brantford, negotiators for both the band council and the traditional governing structure met with federal and provincial officials, although admittedly not always at the same time.

Another key development has to be brought into the picture before we can fully appreciate both the legal and political complexities of the current situation. The political awakening that marked the rejection of the Pierre Trudeau White Paper in Canada was part of a wider civil rights movement around the world. The processes of de-colonization had empowered national elites, but all too often had left the Indigenous peoples of the world on the margins, subject to continuing oppression, discrimination and great hardship. The United Nations became a critical forum in the globalization of Indigenous identities and demands. For more than three decades conferences and debates were held, which eventually led to the adoption by the General Assembly in 2007 of the United Nations Declaration on the Rights of Indigenous Peoples.

The Declaration is not automatically binding on nation states, and there is no international process by which it can be enforced. Nevertheless, it stands as an important expression of “the common sense of the world” that nation states are not absolute in their jurisdiction but must be bound by a deeper appreciation of the rights of Indigenous peoples in their homelands.

Canada’s initial reaction to the Declaration was to vote against it, alongside the United States, Australia and New Zealand. It was seen by the government of the day as an infringement of Canadian sovereignty. As time went on, the Harper government referred to it as an “aspirational document.” It took the election of the Justin Trudeau government in 2015 to lead to the Canadian government signing the Declaration, and then accept a Private Member’s Bill from a New Democratic Party Member of Parliament to formally adopt it in the House of Commons. This bill was not passed by the Senate before the election of 2019. The provincial government in Alberta under the New Democrats indicated that it would accept the Declaration as a basis for public policy “consistent with the Canadian constitution,” words that seriously challenge the full impact of the Declaration. In 2019, the government and legislative assembly adopted the Declaration as public policy, the first provincial government to do so in an unfettered way.

Bill 41 states that the purposes of the law is

(a) to affirm the application of the Declaration to the laws of British Columbia;

(b) to contribute to the implementation of the Declaration;

(c) to support the affirmation of, and develop relationships with, Indigenous governing bodies.

And further commits that the government “in consultation and cooperation with the Indigenous peoples in British Columbia [...] must take all measures necessary to ensure that the laws of British Columbia are consistent with the Declaration.”

The government is also committed to develop an “action plan,” to achieve the objectives of the Declaration. The plan would be prepared in consultation and preparation with the Indigenous peoples in British Columbia, with clear dates and a timetable. 

The Act also requires the government to produce an annual report on its progress, and to negotiate with “indigenous governing bodies” and “rights holders” agreement that would have the effect of implementing the law. It is the first law of its kind in Canada, and its passage was heralded in the legislative assembly as representing a new era in the history of the province of British Columbia.

Prior to the passage of this legislation, the Province was committed to facilitating the construction of a natural gas pipeline, Coastal Gas Link, from the interior of the province to a new terminal in Kitimat. Coastal Gas Link had entered into agreements with 20 Indian Act bands along the corridor of the pipeline, providing both financial returns, jobs, economic partnerships, and a role for environmental stewardship. In response, the province issued the necessary permits to allow the pipeline to begin construction.

The challenge to this process was that the hereditary governing body of the Wet’suwet’en peoples, whose traditional territories lie directly on the route of the pipeline, had for some time established a camp to indicate their assertion of sovereignty and at the same time indicate their clear opposition to the route chosen by Coastal Gas Link. 

To adopt the language of Bill 41, the question now joined is who are the “indigenous rights holders” and “indigenous governing bodies” whose rights will be impacted by the construction of the pipeline.

The UN Declaration declares that indigenous governments must provide their “free, prior and informed consent” to a project of this kind. The province of  British Columbia applied for an injunction to prevent the Wet’suwet’en camp from impeding the construction of the pipeline.

In Coastal GasLink Pipeline Ltd. v. Huson, 2019 BCSC 2264, Church J of the trial division of the British Columbia Supreme Court considered the issue and in a decision issued on December 31, 2019, held that an injunction should be granted against the individuals named in the application.

In 2012, a number of members of the Wet’suwet’en Nation, and their non- indigenous supporters set up a blockade on the Morice West Forest Service Road that became known as the Unist’ot’en Camp or village. A number of cabin structures were also built at this location, and while the camp allowed Canadian Forest Products and its contractors to conduct work, include logging and log hauling, and new forest road construction, they consistently blocked access to representatives of Coastal Gas Link.

What triggered a confrontation between the company, the land defenders, and the RCMP was the final investment decision in October of 2018. Prior to that time, the company had decided to carry on as much preparation and clearing work as possible while avoiding the Unist’ot’en Camp, but the inevitable confrontation occurred when work on the pipeline began in earnest.

An interim injunction was granted on December 14, 2018, as a result of which the RCMP began to enforce the terms of the injunction—several arrests took place, but the resistance to the project continued and expanded. On March 19, 2019, one of the leading organizers of the campaign put out a statement on Instagram, stating that new points of resistance would be built and “we encourage all committed land defenders to plan to participate in the struggle on Wet’suwet’en territory this Spring and Summer.” The resistance expanded and intensified through the summer of 2019, and the land defenders insisted that they were carrying out their activity according to Wet’suwet’en law and tradition—with their legal counsel asserting that “the Wet’suwet’en legal perspective is front and centre in this dispute and deserves equal weight in informing the Court’s principled exercise of its equitable jurisdiction.”

The hearing on the application took place in June of 2019, and the decision came on December 31, 2019. In granting the interlocutory injunction, Church J wrote that Wet’suwet’en governance is divided between the Indian Act Band council system and the hereditary houses. The hereditary Chief of Dark House Warner Williams declined to participate in the consultation process, which began in 2012, but the Office of the Wet’suwet’en and other traditional leaders did engage, and suggested an alternative route for the pipeline to the one proposed by Coastal Gas Link. Once that alternative was rejected by CGL, the divisions between the Band Councils and the hereditary structures became clear.

Five First Nations entered into agreements with CGL. The refusal of the Office of the Wet’sewet’en to enter into project agreements because they might compromise claims to Aboriginal title meant that the Band councils felt they had no choice but to protect the interests of Wet’suwet’en people who were also their members.

It is this division of opinion, and the emergence of more groups asserting the legitimacy of their perspective, that led Church J to conclude that “this evidence suggests that the Indigenous legal perspective in this is complex and diverse and that the Wet’sewet’en people are deeply divided with respect to either opposition to or support for the Pipeline Project.”

In granting the injunction, Church J found that the damages caused to both the interests of the company and Indigenous contractors by the disruption of the construction of the pipeline outweighed the constitutional and other issues raised by the defendants, since there was so much evidence that the Wet’suwet’en perspective was divided. “Self-help remedies” in this circumstance would not be permitted because they amounted to an “abuse of process.”

There is little doubt that this decision will be appealed by the defendants, because the issues raised are fundamental to pipeline and other projects that involve both Indian Act Band councils and hereditary structures. Who are the rights holders?  Do their decisions have to be unanimous? What degree of consensus constitutes “consent”? How does the province or the federal government create an approval process for permits and licenses that respect Indigenous jurisdiction? There is no avoiding these issues, and answers must be found. 

Injunction applications are a difficult place and time for a comprehensive review of the law. There seems little doubt that this particular issue, unless resolved through negotiation, will ultimately go to the Supreme Court of Canada. In the Delgamuukw decision, the Court showed considerable respect for the system of clans and houses of both the Gitskan and Wet’suwet’en peoples. In Tsihlqot’in, the Court emphasized that the creation of the Indian Act Bands “does not affect the identity of the Nation as the holder of rights.”

At the same time as disputes are ongoing, governments and First Nations are taking steps to make practical progress in a number of ongoing negotiations. In May of 2019, the governments of Canada and British Columbia and representatives of Indigenous nations in BC “co-developed the British Columbia specific recognition policy.” All parties embraced UNDRIP as a foundation of the British Columbia treaty negotiations framework. The document aims at the establishment of a new relationship of respect, moving to more “co-developed and co-created” institutions and jurisdiction on a path to self-government. It is striking that this broad framework is using this language at the same time as the Un’istot’en confrontation is grabbing all our attention. 

Other negotiations in the Northwest Territories and Nunavut are setting aside historical differences to make unprecedented progress on the creation of Protected Areas, which will be co-managed and ensure respect for Indigenous jurisdiction.

The Calder case was an abrupt reminder to Canadians that long before First Contact, Indigenous peoples lived in this country and in so doing developed their laws as surely as they developed their languages, cultures, and economies. While those laws were not written down, they are real nonetheless. Centuries of colonialism have not killed them or wiped them out, despite best efforts to do so. Indigenous legal and political orders are only now beginning to receive the respect and understanding they deserve, and while courts “are still feeling our way in this delicate area” (Beaver v Hill, 2018 ONCA 816 at para 29) there is no avoiding these issues on the path to reconciliation.