Crown's duty to negotiate with Indigenous Peoples: Making reconciliation make sense and move forward

As courts continue to embrace and nudge the national project of reconciliation along, the Crown’s duty to negotiate with Indigenous Peoples is becoming increasingly important on the ground. From a legal and constitutional perspective, reconciliation is about determining, recognizing and respecting the rights, interests and claims held by First Nation, Inuit and Métis peoples that are protected by s. 35 of the Constitution Act, 1982 (“s. 35”).

Yet, despite repeatedly recognizing that the Crown’s duty to negotiate exists, the Supreme Court of Canada (“SCC”) has not fully considered or applied it in a specific fact situation or set out the legal framework for its practical use. While the well-known duty to consult as well as other Crown duties owing to Indigenous Peoples have been considered by the SCC numerous times over the last 40 years, the duty to negotiate remains an unknown on multiple fronts.

If negotiations are truly the preferred route forward, a judicially endorsed organizing theory and legal test for this duty is desperately needed, particularly when Indigenous Peoples encounter unwilling Crown partners. This article attempts to highlight why judicial consideration and development of this duty is necessary and long overdue. It sets out what we know about the duty so far and elucidates a framework for understanding its origins and contours, including the duty’s substantive and procedural elements.

Our hope is this article contributes to the commentary and calls for the Crown’s duty to negotiate to finally move from judicial concept to practical legal tool in the toolkit to advance reconciliation in meaningful ways in the upcoming years, particularly when Indigenous Peoples encounter intransigent Crown partners who refuse to even come to the negotiation table.

The unreconciled Crown claim of sovereignty delegitimizes Canada

Since the inception of the Canadian colonial project centuries ago, the laws, legal orders and pre-existence of Indigenous Peoples—as diverse as their histories, societies and traditions are from coast to coast to coast—challenge the foundations of a unified “Canadian story” and Canada as a State. At the same time, Canada’s treaties with and solemn commitments to Indigenous Peoples provide the country with much of its on-the-ground constitutional and legal legitimacy.

The ongoing conflict between “Canada”—as set out in the Constitution Act, 1867 and subsequent constitutional instruments prior to 1982—and the pre-existence of Indigenous Peoples—as organized societies and peoples in possession of their lands^[1]—challenges a universal “Canadian story.” It is now settled law in Canada that “[t]he doctrine of terra nullius … never applied”^[2] and that “Canada’s Aboriginal peoples were here when Europeans came, and were never conquered.”^[3]

In addition, the common law has long recognized that Indigenous legal orders survived the “assumption” of Crown sovereignty when they were not incompatible and, in certain circumstances, give rise to now constitutionally protected rights, interests and claims that “burden” Crown sovereignty.^[4] This tension gives rise to the honour of the Crown as a sui generis constitutional principle in Canada, whose purpose is “the reconciliation of pre-existing Aboriginal societies with the assertion of Crown sovereignty.”^[5]

This inherent tension between Indigenous pre-existence and “assumed” Crown sovereignty strikes at the very heart of Canada’s morality as a State and a country. Reconciliation with the Indigenous Peoples who were placed here by their creators or who were born of these lands (i.e., the very definition of “Indigenous”) long before Canada became Canada pre-dates any French/English or federal/provincial legal debates. Arguably, these debates only come into the picture after the initial question of whether and how Canada legitimately acquired Indigenous Peoples’ lands is answered.

To its credit, the SCC has acknowledged this tension by recognizing the Crown merely “assumed” or “asserted” sovereignty in relation to Indigenous Peoples and their lands. Some courts have even acknowledged this “is simply a legal fiction to justify the de facto seizure and control of the land and resources formerly owned by the original inhabitants of what is now Canada.”^[6] Many Indigenous Peoples see “assumed” Crown control as an illusion; this is why narratives casting Canada’s expansion as a steamroller are rejected. As the SCC has acknowledged, the country is an experiment of trying to “reconcile diversity with unity.”^[7]

To reconcile this on-the-ground diversity with a singular Canadian State, the consent of Indigenous Peoples is essential. Consent can be advanced or achieved through treaties, negotiated arrangements or solemn Crown commitments; however, downstream respect for that consent requires honourable interpretation and implementation of the covenants that enabled it.

Moreover, as further discussed below, the party (i.e., “the Crown”) benefiting from the assertion and assumption of sovereignty must come to the negotiation table where the consent of Indigenous Peoples has not yet been achieved, or, where consent has been achieved, maintain that consent through the honourable implementation of treaties or other covenants that have constitutional protection under s. 35. Through these consent-based arrangements being negotiated and honoured, reconciliation is advanced, and Canada’s constitutional legitimacy is reinforced.

The Crown must negotiate to legitimize its assumed sovereignty

In order to continue to benefit from the assertion and assumption of sovereignty, the honour of the Crown—as a constitutional principle—requires the Crown to meaningfully participate in negotiations to achieve consent-based arrangements—such as treaties—where there currently are none. Just as importantly, it requires the Crown to participate in negotiations to remedy its breaches of these consent-based arrangements where they have been violated or completely ignored. Proactive negotiations between the Crown and Indigenous Peoples are essential to holding Canada’s constitutional legitimacy together and strengthening it into the future.

Courts have already acknowledged “it is undeniable that negotiation and agreement outside the courts have better potential to … advance reconciliation.”^[8] For decades, Canadian judges have championed negotiation as the preferred route for reconciliation.^[9] As Justice O’Bonsawin, the first Indigenous judge appointed to the SCC, wrote, “[t]he reconciliation process differs from the conflict driven, adversarial litigation process that is often antithetical to meaningful and lasting reconciliation. … Avoiding expensive, lengthy, and adversarial litigation is an important step for reaching reconciliation-oriented results where Aboriginal and treaty rights are at issue.”^[10]

Flowing from the recognition that the relationship between the Crown and Indigenous Peoples is very different than that of private litigants, the Alberta Court of Appeal recently went so far as to posit, “[d]eclarations of unconstitutional government conduct in the aboriginal context may prove to be an exception to the rule … that courts should not exercise discretion to grant declarations sought to pressure other litigants to enter into negotiations. If so, the exception may be justified by the constitutional importance of reconciliation.”^[11]

Despite the SCC repeatedly recognizing that the Crown has a duty to negotiate to ensure the rights and claims s. 35 protects are “determined, recognized and respected,” it has not yet explained or addressed this foundational duty in the context of the reconciliation continuum that gives rise to the duty to consult, fiduciary duties or other Crown obligations.^[12] While the SCC recently recognized that the Crown has a duty to implement negotiated contracts dealing with s. 35 rights with “honour and integrity,” a case that articulates and applies the upfront duty to negotiate—triggering negotiations that lead to the types of contracts the SCC considered—remains elusive.^[13]

Arguably, the duty to negotiate is the most important of the “legal tools in the reconciliation basket”^[14] because it requires the Crown to proactively participate in negotiation processes with a view to achieving consent or to rehabilitate its breaches of existing consent-based arrangements (i.e., treaties, solemn promises, etc.). This duty demands positive Crown action, not wait-and-see approaches. Put another way, the Crown cannot sit on its hands and rely on its “asserted sovereignty” until Indigenous Peoples successfully challenge that assumption in the courts by proving a s. 35 right or claim. Instead, the Crown is obliged to participate in negotiations—not just consultations—to reconcile diversity within unity and ensure the rights and claims protected by s. 35 are determined, recognized and respected.

It could be argued that it is because the duty to negotiate has not been fully developed by the courts that the task of breathing life into s. 35, and the “promise of rights recognition” it represents, continues to largely fall to the judiciary.^[15] Ironically, while the SCC has lamented about this reality,^[16] the failure to fully address and breathe life into the duty to negotiate is part of the problem. Without the duty to negotiate having judicial clarity and heft, governments are able to sit on their hands until a judicial determination forces action.

And, while the duty to consult and accommodate—as a cousin to the duty to negotiate—does have judicial clarity and heft, it applies to situations pending final settlement through negotiations. Without a corollary judicial stick to drive the Crown to the negotiating table prior to establishing a s. 35 right or claim in the courts, the duty to consult has become the main event instead of being just a piece in the continuum of reconciliation. This must change in order to move past the duty to consult and accommodate “spin cycle.”

Moreover, the Crown’s ongoing outsourcing of reconciliation to the judiciary has often placed Indigenous Peoples’ futures in the hands of judges who may have little to no understanding of their unique laws, traditions and worldviews. This can be just as dangerous as well-intentioned, but underinformed, parliamentarians making decisions without a deep understanding of Indigenous issues. Nor do courts have all the necessary tools to effectively advance reconciliation. As the Royal Commission on Aboriginal Peoples recognized, courts can unwittingly become accomplices in colonization if they do not provide the Crown and Indigenous Peoples the space they need to reach negotiated settlements.^[17]

The judicial process is also often plagued with extensive costs and delays with many Indigenous rights trials taking up hundreds of days of court time. As one British Columbia judge recently noted, “Aboriginal rights litigation can, and occasionally does, result in the appellate courts remitting the case back … for retrial many years later and after tens of millions of dollars have already been spent.”^[18] This is an access to justice issue for Indigenous Peoples as well as other Canadians because the already overtaxed judicial system must increasingly divert its resources to these Indigenous rights super-trials.

The contours of the duty to negotiate

The SCC has identified “a context-specific duty to negotiate when Aboriginal rights are engaged.”^[19] While still underdeveloped, the courts have provided some insights to begin mapping the contours of this duty, its purpose, when it is engaged, and its contents.

(i) The duty, its purpose, and relationship to the duty to consult

The duty to negotiate and its purpose can be stated simply—“[w]here treaties remain to be concluded, the honour of the Crown requires negotiations leading to a just settlement of Aboriginal claims.”^[20] In Haida Nation v. British Columbia, the SCC firmly situated the duty to negotiate in the context of s. 35 and its broad “promise of rights recognition,” which “is realized and sovereignty claims reconciled through the process of honourable negotiation. It is a corollary of s. 35 that the Crown act honourably in defining the rights it guarantees and in reconciling them with other rights and interests.”^[21] “The duty to negotiate … requires the Crown to possess a bona fide commitment to the principle of reconciliation over litigation.”^[22]

The duty to negotiate is intertwined with the duty to consult. The process of honourable negotiation “implies a duty to consult and, if appropriate, accommodate”^[23] along the way to negotiated settlements. The duty to consult, however, is designed to be a “stop-gap”—“[i]t preserves the Aboriginal interest pending claims resolution and fosters a relationship between the parties that makes possible negotiations, the preferred process for achieving ultimate reconciliation.”^[24] It should not be the sole focus of the Crown or the main event.

Recently, in Métis Nation of Alberta Association v. Alberta, a case about the Crown’s duty to negotiate, the Alberta Court of Appeal once again recognized, “the duty to consult and accommodate [is] a duty that arises while the overall process of negotiating rights claims continues.^”[25] It is not enough, however, to tread water in an endless cycle of consultation and potential accommodation—the duty to negotiate requires the Crown to take steps to determine, recognize and respect Aboriginal rights, claims and interests.

(ii) The circumstances where the duty to negotiate is engaged

The Crown owes a rights-bearing Indigenous nation, collectivity or community a duty to negotiate where the collective rights, claims and interests it holds by virtue of its pre-existence are yet to be “determined, recognized and respected.” Based on this, there are at least three types of situations where the duty to negotiate is engaged.

First, the duty arises where treaties—that set out an enduring relationship between the Crown and Indigenous Peoples—“remain to be concluded.”^[26] In other words, the duty arises where the Crown has “run roughshod” over pre-existing rights, claims and interests of an Indigenous people and simply charted forward with its assertion of sovereignty with no juristic reason. This type of situation exists in much of British Columbia today where historic treaties were, for the most part, not negotiated with First Nations. The duty arguably also applies in regions where legitimate rights-bearing Métis communities or collectivities that meet the legal framework in R v. Powley emerged but were not formally treated with either.

Second, the duty arises in relation to “Aboriginal claims.”^[27] Courts have noted this includes “specific Aboriginal rights claims” and “claims to ancestral lands,” but have not commented on the full scope of matters that attract the duty.^[28] This duty is arguably triggered by the existence of a specific pre-existing Indigenous right, interest or claim that is protected by s. 35 but not necessarily tied to an Aboriginal title claim. These “claims” may be addressed through negotiated agreements, short of a treaty or arrangement being constitutionally protected by s. 35.

Third, the duty must also arise in relation to disputes with respect to unfulfilled, breached or altogether ignored Crown commitments that legitimized Crown sovereignty in the first place (i.e., breaches of historic treaties, disputes about treaty interpretation or non-fulfilment of constitutional promises made to Indigenous groups in the process of Canadian nation-building).

(iii) The content of the duty to negotiate

To date, courts have identified two distinct components of the duty: (1) the duty to engage in a negotiation process; and (2) the duty to conduct negotiations honourably.^[29]

First, the duty “requires the Crown, acting honourably, to participate in processes of negotiation.”^[30] It reflects the principle that “negotiation … remains the ultimate route to achieving reconciliation between aboriginal societies and the Crown.”^[31] Arguably, the honour of the Crown and the rights, interests and claims protected by s. 35 now limit the Crown’s previously unfettered prerogative as to whether to participate in negotiations at all.

If a s. 35 claim has been established or credibly made out, the Crown must be willing to engage in a negotiation process with the rights-bearing Indigenous group in relation to that claim. Full stop. Put another way, the absolute discretion the Crown previously enjoyed with respect to whether and with whom to negotiate has been neutered by the honour of the Crown and s. 35. This makes sense given the presumptive sovereignty and control the Crown has in Canadian law.

In determining whether negotiations have begun, the Alberta Court of King’s Bench has explained, “parties may be involved in a negotiation, regardless of whether they have formally referred to their engagement using this term. It is the manner of their interaction which informs this determination.”^[32] This “continuing process of negotiation … is different from the administrative duty of fairness that is triggered by an administrative decision that affects rights, privileges, or interests.”^[33]

Second, once the Crown has engaged in negotiations, it must conduct itself with “honour and integrity.”^[34] “The governing ethos is not one of competing interests but of reconciliation.”^[35] Courts have found the honour of the Crown demands that the Crown must avoid any appearance of sharp dealing;^[36] conduct itself in good faith;^[37] negotiate with “due diligence … towards a settlement;”^[38] negotiate without oblique motive;^[39] disclose relevant factors and information;^[40] act with intellectual honesty^;[41] and make genuine efforts to reach an agreement that accommodates Indigenous interests.^[42]

In the context of negotiations required by a contract dealing with Aboriginal right of self-government, the SCC has recently observed the following:

this standard of conduct demands more than the mere absence of dishonesty. In particular, it requires the Crown not to adopt an intransigent attitude. The Crown must therefore come to the negotiating table with an open mind and with the goal of engaging in genuine negotiations with a view to entering into an agreement. The Crown should not enter into negotiations without intending to keep its promises, nor should it attempt to coerce or unilaterally impose an outcome. Similarly, the Crown cannot change its position for the sole purpose of delaying or ending negotiations.^[43]

While the duty “promot[es] negotiation and the just settlement of Aboriginal claims as an alternative to litigation and judicially imposed outcomes,”^[44] there is no duty to agree.^[45] “[E]ither party may withdraw where an impasse is reached. However, when it is involved in such a process, the Crown must adopt a standard of conduct higher than the one it would adopt in the private law context and must act in such a way as to maximize the chances of success.”^[46]

Conclusion

Based on the jurisprudence to date and the propositions we set out in the article, we suggest the building blocks of the duty to negotiate can be summarized as follows:

• Indigenous legal orders pre-exist the assumption of Crown sovereignty. Indigenous rights, laws, jurisdictions and sovereignty continue and have constitutional status by virtue of s. 35. Despite this, the Crown does not always respect the continued existence of pre-existing Indigenous legal orders.
• The honour of the Crown arises out of the assumption of Crown sovereignty over Indigenous societies, their pre-existing legal orders and their lands. This gives rise to a special relationship requiring the Crown to deal honourably with Indigenous Peoples and determine, recognize and respect their s. 35 rights.
• The ultimate purpose of the honour of the Crown is the reconciliation of pre-existing Indigenous societies with the assumption of Crown sovereignty. In specific circumstances, the honour of the Crown gives rise to actionable duties in service of reconciliation. These include a duty to negotiate.
• The duty to negotiate arises where a treaty remains to be concluded or where the Crown has violated Aboriginal rights, claims or interests. In those circumstances, the Crown is required to (1) engage in a process of negotiation; and (2) conduct itself with honour and integrity toward a “just settlement.” There is no duty to agree.

Notably, the legal framework for the duty to negotiate set out above is, in some ways, very similar to the duty to consult framework that has been well-developed by the SCC and lower courts. The goal of the duty to negotiate, however, is to arrive at the just settlement of s. 35 rights, interest and claims, not just to consult and potentially accommodate those claims pending final negotiated arrangements or treaties.

There is an important distinction, with a difference, between these two duties that will likely be fully fleshed out as Indigenous groups begin to increasingly rely on the duty to negotiate. Both are essential to making sense of reconciliation and moving the process along. Arguably, the duty to negotiate is even more important than the duty to consult, if courts truly want to push reconciliation outside of the courtrooms. Time will tell how this yet-underdeveloped duty begins to play its important role in the reconciliation continuum, but we would argue it may soon become one of the next “best available legal tools in the reconciliation basket.”^[47]