Aboriginal Law and the Right to a Healthy Environment
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Transcript of Aboriginal Law and the Right to a Healthy Environment
Jesse Baker June 4, 2016 Environmental Law Centre Pro Bono Students Canada
Aboriginal Law and the Right to a Healthy Environment: A Literature Review
Introduction
The 1973 Declaration of the United Nations Conference on the Human
Environment recognized the right to a healthy environment in international law 34 years 1
before the General Assembly adopted the United Nations Declaration on the Rights of
indigenous Peoples. Canada has yet to recognize the right to a healthy environment in 2
its laws or meaningfully protect Indigenous rights (recognized as “Aboriginal rights” in
Canadian common law under section 35 of theConstitution Act, 1982). Several authors 3
have argued that the protection of Aboriginal rights depends on and facilitates a right to
a healthy environment and can only be meaningfully protected through this recognition
by adjudicators and policymakers alike. This paper will review pertinent legal and policy
issues in the literature and how various themes support the argument that Aboriginal
rights depend on and facilitate a healthy environment. In terms of legal issues, it
discusses injunctions, resource management, Aboriginal title, selfgovernment,
Indigenous law, and the right to a healthy environmental incidental to Aboriginal and
1 United Nations Environment Programme (UNEP), UN Doc A/Conf. 48/14/Rev.1 (1973) 1, online: UNEP <http://www.unep.org/documents.multilingual/default.asp?documentid=97&articleid=1503>. 2 United Nations General Assembly, United Nations Declaration on the Rights of Indigenous Peoples: resolution / adopted by the General Assembly, 2 October 2007, A/RES/61/295, online: United Nations <http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf>. 3 George LloydSmith, “The Relationship between Environmental Rights and Aboriginal Rights: A Balance and Synergistic Approach” (2014) East Coast Environmental Law [unpublished], online: <http://www.ecelaw.ca/environmentalrightsandaboriginalrightsplacementpaperapril2014.html>.
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treaty rights. On the policy side, this paper discusses the recognition of Indigenous law 4
and expanded Aboriginal rights, Indigenous perspectives in project approvals,
reconciliation and selfdetermination, and selfgovernment and title in modern land claim
agreements.
Legal Issues
Injunction Proceedings
The law of injunctions often serves to weaken the protection of Aboriginal rights
and the environment. In their paper, Rachel Ariss and John Cutfeet study injunction 5
proceedings in response to protests against a drill site set up on the traditional territory
of the Kitchenuhmaykoosib Inninuwug (KI) without their permission. Like other
Indigenous peoples, KI have struggled to have their law acknowledged and respected,
as they were in these protests and subsequent legal proceedings. Looking at two
decisions in the injunction proceedings, they argue that the first expanded the scope of
injunctive relief for First Nations, recognizing KI’s perspective on their connection to the
land and the risk of harm to Aboriginal rights from this connection. By contrast, the 6
second decision narrowed the scope for relief, closing space to KI perspectives and
discounting the risk of harm from the resource activity. The Court of Appeal criticized
4 Aboriginal law refers to the recognition of a unique system of laws relating to Indigenous people within the Canadian common law system, through mechanisms like Aboriginal rights. Indigenous law, on the other hand, refers to the distinct legal traditions of Indigenous communities. 5 Rachel Ariss and John Cutfeet, “Mining, Consultaiton, Reconciliation and Law”, online: (2011) 10:1 Indigenous LJ 1 <http://ilj.law.utoronto.ca/volume10issue12011>. 6 Ibid at 2324, quoting the statement in Delgamuukw v British Columbia, [1997] 3 SCR 1010 that Indigenous perspectives on Aboriginal rights must be given equal weight as the common law perspective.
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the second decision for discounting Aboriginal law principles and relying on the common
law in issuing an injunction. 7
Looking at decisions in land disputes, Ryan Newell identifies a positive turn 8
towards a rule of law that is more inclusive of Indigenous legal perspectives. He
welcomes Frontenac Ventures’ conception of the rule of law that only justifies an
injunction when a court has made every effort to encourage consultation, negotiation,
accommodation and reconciliation. For him, this conception counterbalances the 9
disproportionate strength of private party interests in injunction proceedings, so that 10
Indigenous parties are more likely to receive a just remedy.
In summary, Newell’s call for the incorporation of Indigenous perspectives into
Canadian common law to protect Aboriginal rights and produce just results mirrors that
of Aris and Cutfeet. Their analysis of injunctions suggests that justice and Aboriginal
rights depend on and facilitate a healthy environment. Harm faced by KI implicated
Aboriginal rights and the environment and the recognition of Indigenous perspectives in
the law of injunctions helped in the goal to protect a healthy environment. Others have 11
7 Ibid at 2324. 8 Ryan Newell, “Only One Law: Indigenous Land Disputes and the Contested Nature of the Rule of Law”, online: (2012) 11:1 Indigenous LJ 41 <http://ilj.law.utoronto.ca/sites/ilj.law.utoronto.ca/files/media/ILJ%20vol%2011%20to%20post%20b.4778.pdf>. 9 Ibid at 63. 10 Ibid at 64, quoting the acknowledgment in Haida Nation v British Columbia (Minister of Forests), [2004] 3 SCR 511 [Haida] that “the balance of convenience test [for injunctions] tips the scales in favour of protecting jobs...Aboriginal interests tend to ‘lose’.” 11 For analysis of other injunction proceedings discounting of Indigenous law approaches, see: Sari Graben, “Resourceful Impacts: Harm and Valuation of the Sacred” (2014) 64:1 UTLJ 64; Grant Mayeda, “Access to Justice: The Impact of Injunctions, Contempt of Court Proceedings, and Cost Awards on Environmental Protestors and First Nations” (2010) 6 McGill JSDLP 143; David R. Boyd, “Elements of an Effective Environmental Bill of Rights” (2015) 27 J Env L & Prac 201.
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argued that Aboriginal law requires a unique approach to injunctions given the
connection between Aboriginal rights and the environment. 12
Right to Manage Resources
An article by Emily Walter, R. Michael M’Gonigle and Celeste McKay looks at the
pacific salmon management system as a structural infringement of an Aboriginal right to
manage resources. They apply the R v Van der Peet test to define the scope of the 13 14
right as “the right to participate in and regulate salmon fishing activities for those stocks
which the claiming First Nation traditionally harvested and managed.” They highlight 15
the significance of fisheries stewardship that was integrated into precontact Indigenous
cultures in the watersheds of the North Pacific. The requirement that a right reflect the 16
distinctive culture of the claimant group is said to be achievable through evidence that
stewardship largely defined the attributes of an Indigenous culture and varied
substantially between groups. Evidence of continuity is seen in modern practice
reflecting traditional resource management, including comanagement with government.
For extinguishment, regulations and laws of general application are found to not 17
evince the requisite “clear and plain” intent. Having established an Aboriginal right to 18
12 Heather McLeodKilmurray, “Proceeding With (Pre)Caution: Environmental Principles as Interpretive Tools in Applications For Pretrial Injunctions” (2009) 32 Dalhousie LJ 295. 13 Emily Walter, R. Michael M’Gonigle and Celeste McKay, “Fishing Around the Law: The Pacific Salmon Management System as a “Structural Infringement” of Aboriginal Rights”, online: (2000) 45 McGill LJ 263 <http://lawjournal.mcgill.ca/userfiles/other/594432245.Walter.pdf>. 14 [1996] 2 SCR 507 [Van der Peet], focusing on a practice, custom or tradition that existed before contact with Europeans, has continuity to the present day and is an integral, central or significant part of the distinctive culture. 15 Supra note 13 at 268. 16 Ibid at 280, citing practices, customs, and traditions related to species management and ensuring adequate harvest and sustainability of stocks, which were more than incidental to harvest. 17 Ibid at 281. 18 Ibid at 284, conceding that it is not entirely clear whether similar conclusions in R v Sparrow, [1990] 1 SCR 1075 about harvest rights are directly applicable to a selfgovernment right.
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traditional management, the article demonstrates how the government system
structurally infringes the right by promoting industrial fleets that are incompatible with its
exercise. Community based management is called for to retain culturally significant 19
fisheries management and end infringement while providing ecological benefits to
Indigenous and nonIndigenous interests. 20
In summary, by using the Supreme Court’s Van der Peet test to prove an
Aboriginal right to manage resources, the three authors offer a convincing approach to a
healthy environment in Aboriginal law. The protection of such a right under section 35
would force government to justify the existence of any system to manage resources that
is incompatible with its exercise, and perhaps even individual resource project
approvals. Any other activity negatively affecting resources within the scope of the right,
without the approval of the right holder, would also be incompatible with the exercise of
the management right and thus an infringement. Such an Aboriginal right to manage
resource would effectively provide Indigenous community members with a negative right
to a healthy environment visavis governments, industry, and other parties. The only
issue then would be the breadth of the test applied to justify such infringements. 21
19 Ibid at 297. 20 Ibid at 304. 21 Collins and Murtha, infra note 52 at 27, reason that government has a constitutional duty to accommodate a viable management system as the preferred means of exercising the right and could not justify any imposition that does not minimally impair the right. This appears to reject the expansion of the Sparrow justification test in Delgamuukw. See note 53 and Coyle, infra note 42, on the existence of a fiduciary duty to prevent harm to Indigenous people.
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Aboriginal Title
In Delgamuukw v British Columbia, the Supreme Court defined Aboriginal title 22
as a communally held, exclusive right to the use and possession of land, including the
right to decide what uses can be made of it. Using the Tsilhqot’in Nation and its laws as
a case study, Alan Hanna develops a process for applying Indigenous laws to the 23
Delgamuukw test to improve accessibility and the likelihood of success for title
claimants. For him, conceiving of Aboriginal title at common law requires 24
understanding Indigenous society and recognizing the meshwork of systems, including
Indigenous law, that allow it to function. Otherwise, onerous obstacles may be created
for groups attempting to prove elements of theDelgamuukw test. Hanna proposes the 25
Tsilhqot’in “round” a system of sustainable resource use through traditional knowledge
as evidence of legal jurisdiction over the territory. “Making the round” is an example of
Indigenous law applied over time that Hanna cites as proving Aboriginal title. His
definition of Aboriginal title according to Indigenous law conforms with the principle that
common law and Indigenous perspectives should be given equal weight. Such 26
application of Indigenous laws would lead to more recognition of Aboriginal title and
more management of the land’s resources.
22 [1997] 3 SCR 1010 [Delgamuukw]. 23 Alan Hanna, “Making the Round: Aboriginal Title in the Common Law from a Tsilhqot’in Legal Perspective”, online: (2014) 45:3 Ottawa L Rev 365 <https://commonlaw.uottawa.ca/ottawalawreview/sites/commonlaw.uottawa.ca.ottawalawreview/files/1__rdo_45.3_int.pdf>. 24 His starting proposition, ibid at 367268, is that the Delgamuukw test (exclusive occupation at the time the Crown asserted sovereignty and continuity) and inconsistent definition (ranging notionally from territoriality to specific sites of physical occupation) makes a claim near impossible to succeed. 25 Ibid at 369370. For example, the definition of Aboriginal title based on welldefined, regularly used areas of intense occupation in Tsilhqot’in Nation v British Columbia, 2012 BCCA 285 failed to recognize the interconnectedness of natural systems and healthy environment the Tsilhqot’in are obliged to uphold. 26 Ibid at 370371. See Delgamuukw, quoting Van der Peet.
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In summary, the doctrine of Aboriginal title is advantageous in terms of a healthy
environment, as it gives communities the exclusive right to decide the use of their land.
This amounts to a right to manage resources, and thus to a right to a healthy
environment in the same sense as above. It may also permit the recognition of
Indigenous laws, as well as their exercise in making resource management decisions
(discussed below). While proving Aboriginal title has been difficult and the infringement
justification test broad, Tsilhqot’in Nation v British Columbia and Marshall III indicate 27 28
a greater judicial willingness to declare title and protect Indigenous land interests,
making it a vehicle for environmental protection.
Right to SelfGovernment
While the Court in Delgamuukw avoided the issue of selfgovernment that had
been raised, Dalton argues that it acknowledged the inherent right of Aboriginal
selfgovernment (and resource management) by affirming that title lands are held, and
decisions about them made, communally. She posits that communal rights imply
selfgovernment to regulate land use, which Williamson J. also concluded inCampbell 29
v British Columbia (Attorney General). Both agree that unwritten constitutional 30
principles from imperial policy recognize an inherent right to selfgovernment. 31
27 2014 SCC 44, [2014] 2 S.C.R. 256 [Tsilhqot’in], the first time a court formally declared Aboriginal title. 28 R v Marshall; R v Bernard, 2005 SCC 43 [Marshall III] where LeBel J., concurring, challenged the strict Delgamuukw test, noting that the focus on occupation to prove possession is imbued with Western notions of land use and ignores Indigenous social and cultural practices that may reflect the significance of the land to the group seeking title. 29 Jennifer E. Dalton, “Aboriginal SelfDetermination in Canada: Protections Afforded by the Judiciary and Government”, (2006) 21 Can J L & Soc 11 at 20. 30 [2000] 4 CNLR 1 (BCSC) [Campbell]. 31 Supra note 29 at 22 and note 30, arguing that the treaty process demonstrates that imperial policy respected First Nations’ inherent rights including selfgovernment, establishing formal relations with them as with sovereign states. See note 54.
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Peter Hutchins, Carol Hilling and David Schulze agree that an inherent Aboriginal
right to selfgovernment is found outside the Constitution Act, 1867. Canvassing 32
reasons of the Court of Appeal in Delgamuukw, they argue that the majority failed to
address whether there was an inherent right to selfgovernment not derived from the
British Parliament like the Act. Accordingly, the majority seems to have taken for
granted that the Aboriginal right to selfgovernment was extinguished by the Act’s
division of powers between the federal and provincial governments. The authors cite 33
persuasive authority that its preamble incorporates preexisting rules so that sources of
Canada’s constitutional law are found elsewhere. The Royal Proclamation of 1763 is 34
one source held to be constitutional in nature and Alain Lafontaine is cited as arguing
that it recognizes the exercise of a form of inherent selfgovernment right. The authors 35
argue that the Constitution should be interpreted in light of this recognition by the
Proclamation.
Professor Brad Morse argues that the Van der Peet test makes it nearly 36
impossible to prove an inherent Aboriginal right to selfgovernment. Morse says thatR 37
v Pamajewon was an opportunity to clarify the status of selfgovernment as it was the 38
32 Peter W. Hutchins, Carol Hilling and David Schulze, “The Aboriginal Right to SelfGovernment and the Canadian Constitution: The Ghost in the Machine”, (1995) 29:2 UBC L Rev 251 at 252. 33 Ibid at 281. 34 Ibid at 272. 35 Ibid at 273, arguing that the Proclamation recognizes independent Indigenous decisionmaking involving the power to decide whether or not to surrender territory by way of treaty and to enter military or other agreements. Lambert J.A. referred to this element of external relations in Delgamuukw while characterizing the claim of a right to selfgovernment. 36 Supra note 14. 37 Brad Morse, “Permafrost Rights: Aboriginal SelfGovernment and the Supreme Court in R. v. Pamajewon”, online: (1997) 42 McGill LJ 1011 at 1035 <http://lawjournal.mcgill.ca/userfiles/other/479413442.Morse.pdf>. 38 [1996] 2 SCR 821 [Pamajewon].
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first Supreme Court case in which an inherent right to selfgovernment was the central
ground for appeal. Applying Van der Peet, the Court characterized the claim as a right
to participate in and regulate gambling activities on the First Nation’s reserve lands,
rejecting the appellants’ framing as a right to selfgovernment as excessively general. 39
Morse finds that this typical approach to Aboriginal rights is narrowly activitybased and
effectively forecloses inherent selfgovernment rights protection. 40
Michael Coyle argues that the use of the Van der Peet test is inappropriate for
analyzing claims likes selfgovernment. According to him, its application risks permitting
the destruction of distinct cultures that section 35 is meant to protect by “freezing”
integral Indigenous activities and ignoring evolution necessary for contemporary
survival. He argues that the resultant vulnerability justifies an expansion of the 41
fiduciary duty that the Crown has been found to owe Indigenous people under section
35 to require that it create space for the expression of Indigenous cultures through
selfgovernment and otherwise. 42
In summary, these articles illustrate that there is much uncertainty about the legal
status of an inherent Aboriginal right to selfgovernment. In the single Supreme Court
decision dedicated to the issue, highstakes gambling and a very general claim made
for an unfortunate test case and failed the “unfortunate"Van der Peettest. However, the
39 Ibid at 10291030. By contrast, in Campbell, the power of selfgovernment that the court recognized was set out in treaty and thus was less general than the claim in Pamajewon. 40 Dalton, supra note 29 at 21, suggests the Supreme Court showed a willingness to consider selfregulation in the future. Michael Coyle, infra note 41 at 866, argues that dismissing the protection of selfgovernment rights on the basis of a claim’s level of generality is contrary to a purposive interpretation of section 35. 41 Michael Coyle, “Loyalty and Distinctiveness: A New Approach to the Crown’s Fiduciary Duty Toward Aboriginal Peoples” (2003) 40 Alta L Rev 841 at 842846. 42 Ibid at 857859, arguing that to impose a fiduciary duty it suffices that the beneficiary has a legal or practical interest the other party should have defended.
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much more recent decision in Campbell suggests that a more narrowly characterized
claim can succeed. What is more certain is that Aboriginal title gives communities the
exclusive right to decide the use of their land, and such decisions must involve a form of
selfgovernment. Any judicial recognition of selfgovernment would have to include the
right manage resources because of Indigenous communities’ important connection to
the land, and thus the right to a healthy environment in the accompanying sense.
Indigenous Law and the Environment
Jessica Clogg et al. explore Indigenous lawbased approaches to environmental
management and how they can be recognized through Aboriginal rights to facilitate a
healthy environment. Like authors above, they show how Canadian common law can
recognize Indigenous peoples’ exercise of their own laws in connection with Aboriginal
title (including resource management) or selfgovernment rights. They explore case 43
studies of Indigenous peoples that have enforced their traditional laws to address
contemporary challenges to their respective territories from resource development. The
Gitanyow Lax’yip proactively applied Indigenous legal principles like Gwelx ye’enst to 44
develop a strategic plan applicable to all land and resource decisions within their
traditional territory. The TsleilWaututh Nation combined legal principles, traditional 45
knowledge, and community engagement with scientific evidence to review the Kinder
Morgan Trans Mountain Expansion proposal. Their holistic environmental assessment
approach went beyond the scope of a government process to consider cumulative
43 Jessica Clogg et al., “Indigenous Legal Traditions and the Future of Environmental Governance in Canada” (2016) 29 J Env L & Prac 227 at 233. 44 Clogg et. al., ibid 43 at 236, define this principle as “ultimate responsibility to ‘hold, protect and pass on the land in a sustainable manner from generation to generation’.” 45 Ibid at 236.
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cultural, spiritual, and economic impacts and the precautionary principle. For the 46
authors, such applications and revitalization of Indigenous law have major implications
for resource development and environmental management in a post Tsilhqot’in world.
Brenda Gunn argues that Indigenous laws will lead to better protection of their 47
lands. After reasoning that the liberal basis of common law legal rights confines
Aboriginal rights and has permitted the destruction of lands, she claims that they must 48
instead be based on Indigenous practices and traditions rooted in ecological
sustainability. She credits their laws with containing intergenerational solutions to 49
balance the rights of land and people and their incorporation with remedying
contemporary environmental problems affecting their lands. 50
In summary, both of these articles agree that Indigenous laws should be
recognized in Canadian common law through Aboriginal rights to facilitate a healthy
environment. These approaches have major implications for ensuring healthy
environments using tools like landuse planning and environmental assessment.
Indigenous laws contain solutions to environmental problems that balance the rights of
present and future generations of people and the environment itself. They can be
recognized in Canadian common law as necessarily incidental to the right of Aboriginal
title or selfgovernment, and provide Indigenous community members with a negative
46 Ibid at 248249. 47 Brenda Gunn, “Protecting Indigenous Peoples’ Lands: Making Room for the Application of Indigenous Peoples’ Laws Within the Canadian Legal System” (2007) 6 Indigenous LJ 31. 48 Ibid at 4748, arguing that the Crown is able to infringe Aboriginal title and Aboriginal rights are not more robust because, in liberal theory, the state’s role is to balance rights to ensure that every individual has “equal” opportunity to pursue the “good life”. Thus, cultural perspectives on land and resources are not reflected. 49 Ibid at 48. Indigenous peoples have already found ways to incorporate specific Indigenous laws and legal principles into the Canadian legal system. Supra notes 45 and 46. 50 Ibid at 5152.
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right to a healthy environment in the same ways. Furthermore, since Indigenous laws
are law, they bind Indigenous people and provide community members with a right to 51
a healthy environment visavis other members and the community itself.
Aboriginal Law and a Positive Right to a Healthy Environment
Lynda Collins and Meghan Murtha argue that treaty and Aboriginal harvesting 52
rights depend on, and must necessarily include an implicit right to, a healthy
environment. They note the unique relationship between Indigenous communities and
their lands and the documented prevalence of disproportionate environmental harm that
they face, which may trigger a fiduciary duty. While such a duty would provide a 53
positive right to a healthy environment, Collins and Murtha believe that basic principles
of treaty interpretation provide the strongest foundation. The principle that a treaty is to
be interpreted as it would have been understood by Indigenous people at the time of
signing compels them to conclude that treaty rights to harvest resources encompass a
right to a healthy environment. They cite case law to indicate courts’ broad 54
interpretation of treaty rights despite limitation clauses, recognizing a duty to assess 55
specific environmental impacts which impinge upon treaty rights. Accordingly, they say 56
51 A detailed examination of the mechanisms for enforcing and protecting rights under Indigenous laws is beyond the scope of this review. 52 Lynda Collins and Meghan Murtha, “Indigenous Environmental Rights in Canada: The Right to Conservation Implicitly in Treaty and Aboriginal Rights to Hunt, Fish, and Trap” (2010) 47:4 Alta L Rev 1. 53 Ibid at 7, arguing that Crown authorization of environmentally destructive activities on traditional Indigenous lands without their consent is adverse to their interests and thus may constitute a breach of fiduciary duty, particularly when it threatens the physical and/or cultural integrity of the First Nation. 54 Ibid 1314, noting that reports of Treaty Commissioners and the Royal Commission on Aboriginal Peoples indicate that First Nations made treaties to protect and preserve their way of life. This meant the continuing, sustainable use of their lands and natural resources, which depends on a healthy environment. 55 Halfway River First Nation v British Columbia (Ministry of Forests), [1997] 4 CNLR 45 (BCSC) adopted a narrow reading of the limitations on hunting and fishing rights in Treaty 8, placing substantial reliance on statements of the Treaty Commissioner. 56 In Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2001 FCT 1426, Hansen J accepted that environmental effects would impact treaty rights under section 35, and held that the Crown’s
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that governments have a constitutional duty to ensure that the environmental needs of
Indigenous peoples are not compromised. They say that this positive right to a healthy
environment enjoyed by Indigenous peoples would result in ecological benefits for all
Canadians. 57
Policy
Recognizing Indigenous Law and Expanding Aboriginal Rights
Aaron Mills argues that sustainable resource development policy would benefit
from the recognition of Indigenous law. He says that if governments recognized the
legitimate authority of Indigenous law over traditional lands, many Indigenous people
would be willing to see Canada as a community with which they are interdependent and
nonIndigenous people might benefit from the sharing of Indigenous ecological
knowledge. Many Indigenous nations have laws dictating that resources are to be 58
used to facilitate the wellbeing ofall life, which allows for sharing from Indigenous lands
with other humans as long as it does not jeopardize the wellbeing of living resource
systems themselves. The inclusion of Indigenous ecological knowledge in 59
environmental planning and assessment could lead to a common understanding that all
systems are connected and improve sustainability outcomes on Indigenous lands and
beyond. 60
consideration of environmental effects in general (though an environmental assessment process) was not sufficient to address the potential infringement of a treaty right. 57 Supra note 52 at 2829. 58 Aaron Mills, “Aki, ANishinaabek, kaye tahsh Crown” (2010) 9 Indigenous LJ 107 at 115. 59 Ibid at 116117, explaining that under many Indigenous legal systems people owe a legal obligation to all living things (even rocks) so that each might continue to thrive as the Creator intended. 60 Ibid at 148. In Indigenous legal systems, resource management is integrated with harvesting to prevent negative environmental externalities and facilitate sustainable use. It may be possible for Indigenous laws and Canadian common law to align in terms of the courses of action they support in a specific factual context.
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Goldenberg examines the widespread hostility towards expanded rights and 61
differential treatment of Indigenous peoples’ interests in political discourses as a barrier
to justice that governments should overcome. He shows how Aboriginal rights to
manage resources are opposed for threatening the economic status quo and 62
challenging popular (mis)conceptions of Indigenous culture. Morally, he says that 63
governments should recognize broader rights as upholding the nature of Canada’s
historic relationship with its Indigenous peoples and addressing their unique concerns.
Such rights would affirm their interest in maintaining control over resource harvesting
and management, ensuring the continuity of their ecological values and other aspects of
their cultures. Legally, Goldenberg argues that principles of the Supreme Court’s 64
section 35 jurisprudence may impose positive obligations on governments to implement
broader Aboriginal rights to manage resources. 65
In summary, the recognition of Indigenous laws by governments would help
achieve better policy outcomes in terms of providing a healthy environment, not only on
their lands but in other parts of Canada connected by natural systems. For this to
happen, governments must overcome political opposition to expand Aboriginal rights to
manage resources and fulfill moral and legal obligations to Indigenous peoples.
61 Andre Goldenberg, “Salmon for Peanut Butter: Equality, Reconciliation and the Rejection of Commercial Aboriginal Rights” (2004) 3 Indigenous LJ 61. 62 Ibid at 96. 63 Ibid at 99, arguing that popular discourses endorsed by courts foster the harmful notion that harvesting resources should only involve traditional practices compatible with the stereotyped “nature” of Indigenous societies, freezing cultures and denying communities the opportunity (and necessity) to adapt to survive. 64 Ibid at 100. 65 Ibid at 108. In terms of principles, he cites the duty to consult and accommodate that may attach before a right has been proven in court, and the principle of reconciliation.
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Considering Indigenous Perspectives in Project Approvals
Chalifour looks at the discounting of community health concerns in environmental
assessments for resource projects near Fort Chipewyan. While the Indigenous
communities provided commentary and evidence about their traditional ecological
knowledge pursuant to the CEAA, decisionmakers were not obliged to seriously
engage with their concerns and largely dismissed them as meritless or insignificant. 66
Despite its strong public participation provisions, she says the CEAA and other
environmental assessment legislation do not ensure adequate representation of the
perspectives of vulnerable Indigenous and other groups. 67
Szatylo examines how devastation of Indigenous lands continues without their
rights and views being fully considered, focusing on Alberta in particular. The Royal
Commission on Aboriginal Peoples acknowledged that Indigenous beliefs about land
and resources are central to their identities and entitled to respect. Unfortunately,
Szatylo notes that these concepts have continued to be ignored. Increased petroleum 68
and resource development in Alberta have impacted the environment, along with all
aspects of Aboriginal rights connected to it, and she says that this has made it difficult to
maintain Aboriginal livelihoods. While governments have financial reasons to maintain
the status quo, she cites financial, legal and moral reasons to fulfill Aboriginal rights
obligations, the breach of which could have disastrous effects on their interests, the
66 Nathalie Chalifour, “Bringing Justice to Environmental Assessment: An Examination of the Kearl Oil Sands Joint Review Panel and the Health Concerns of the Community of Fort Chipewyan” (2010) 21 J Env L & Prac 31 at 5455. 67Ibid at 55. 68 Deborah Szatylo, “Recognition and Reconciliation: An Alberta Fact or Fiction?” (2002) 1 Indigenous LJ 201 at 205.
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environment, and Indigenous people. While procedural aspects of Aboriginal rights 69
rooted in treaties may be infringed by project approvals, treaty rights themselves may
be impinged by the environmental effects of resource development. As the author 70
recognizes with companies, governments cannot expect certainty from courts and
should be proactively involved with Indigenous communities, recognizing the benefits to
be derived from cooperating with them. 71
In summary, governments need to do more to ensure the just and adequate
consideration of the perspectives of vulnerable Indigenous and other communities
during the environmental assessment of resource projects. In Alberta in particular,
Indigenous lands have been environmentally degraded without the proper weighing of
theirs rights and perspectives, which are intimately connected to the land. There are
financial, legal and moral reasons for governments to be proactive in adopting policies
of engagement with Indigenous communities, in addition to the benefits in terms of a
healthier environment previously discussed.
Reconciliation and SelfDetermination
Gunn suggests that reconciliation under section 35 requires addressing
Canada’s historical imposition of colonial law with the goal of assimilating Indigenous
peoples. She says that Canada must take advantage of the opening for action provided
by the Truth and Reconciliation Commission to address the foundational questions of its
69 Ibid at 204. 70 She cites Halfway, supra note 55, where the Court quashed a cutting permit because the BC government failed to meet its fiduciary duty and did not adequately consult, in accordance with the purposive (protect Aboriginal rights) interpretation of section 35 and Treaty 8. See Collins and Murtha, supra note 52. 71 Supra note 68 at 235. In R v Breaker, [1999] A.J. No. 754 (QL), Cioni J. implored the government to take its fiduciary relationship with Indigenous peoples seriously, recognizing the benefits to be derived from their practices and traditions.
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relationship with Indigenous peoples. She believes that true reconciliation requires that 72
Indigenous peoples determine their own futures. The aforementioned United Nations
Declaration on the Rights of Indigenous Peoples affirms the right to control their own
cultural development, addressing the underlying cause of colonial domination
emphasizing assimilation. Gunn believes the Declaration thus provides a framework for
selfdetermination that can be used to work toward a reconciliatory CrownIndigenous
relationship based on justice and mutual respect. 73
Gunn argues that the colonial process targeted Indigenous peoples’ political,
economic, social and cultural systems and the remedy of selfdetermination will not be
sustainable unless Canadian legal and political systems make space for Indigenous
institutions. Accordingly, they must be consulted through their own institutions and 74
processes rooted in their own cultural and social practices to determine their future. This
right is based on the standard of free, prior and informed consent in the UNDRIP – a far
higher standard than the existing duty to consult. Gunn cites evidence that when 75
selfdetermination is supported by effective and culturally appropriate institutions,
72 Brenda Gunn, “Moving Beyond Rhetoric: Working Toward Reconciliation Through SelfDetermination” (2015) 38 Dalhousie LJ 237 at 238. 73 Ibid at 242. In Reference re Secession of Quebec, [1998] 2 SCR 217, the Supreme Court held that the right to selfdetermination is a general principle of international law and human rights. It clarified that selfdetermination does not automatically equate to secession, nor require a particular political arrangement within the state, but can be achieved through better integration or recognition (e.g. selfgovernment). 74 Supra note 72 at 254255, noting many Indigenous peoples in Canada are not recognized as autonomous or selfgoverning, governed by the Indian Act with most powers residing with the Crown. 75 Ibid at 259261, noting that: the existing duty to consult may only require notice and discussion of issues on governments’ terms; consent is only relevant to established rights, and maybe “severe infringement”; Indigenous peoples must be free to make decisions about economic development, which is intricately connected to their laws and rights to lands and resources and ability to escape dependence.
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communities have seen a wide variety of economic, social and cultural benefits and
begun to escape assimilation and colonialism. 76
In summary, the recent release of the report by the Truth and Reconciliation has
provided an opening for governments to act to remedy historical wrongs in their
relationships with Indigenous peoples. The newly adopted United Declaration on the
Rights of Indigenous Peoples provides a framework for selfdetermination that can be
used to achieve true and just reconciliation. Such reconciliation cannot be achieved in
the absence of a policy to make space for Indigenous institutions which can be effective
and culturally appropriate and provide economic, social, cultural and environmental
benefits to Indigenous communities and Canada.
SelfGovernment and Title in Modern Land Claim Agreements
To rectify the historical injustice and give meaning to section 35, Dalton argues 77
that the Federal Government must do more to recognize Aboriginal title and
selfgovernment as crucial components in modern land claim agreements. She
expresses concern that selfgovernment agreements negotiated pursuant to the Federal
Government’s Inherent Right Policy often do not sufficiently provide for Indigenous 78
institutions, which are necessary for the survival of Indigenous cultures and livelihoods.
Moreover, these agreements are separate from the land claim agreements 79
76 Ibid at 261262. 77 Jennifer E. Dalton, “Aboriginal Title and SelfGovernment in Canada: What is the True Scope of Comprehensive Land Claims Agreements?” (2006) 22 Windsor Rev Legal & So Issues 29. 78 Ibid at 64, describing how in the Inherent Right Policy, selfgovernment is implemented by negotiating the extent of autonomy that Indigenous governments may exercise relating to: internal matters integral to unique cultures, identities, traditions, languages and institutions; and internal matters with respect to their special relationship to the land and their resources; but not national sovereignty, economy or law. 79 Ibid at 30.
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themselves, so Dalton believes that they may not have treaty status and thus
selfgovernment may not be protected under section 35, as negotiated. In the absence 80
of such concerns, negotiate selfgovernment can cure uncertainty surrounding judicial
recognition of such a right while providing similar environmental and other benefits to
Indigenous peoples and Canada.
She believes that the Federal Government’s policy on title is even more of a
problem in terms of justice and protecting section 35 rights, as blanket extinguishment is
discordant with recent Aboriginal title jurisprudence. Rather than recognizing the
constitutional right to use and occupy their lands exclusively, which may arise before a
right is proven in court, she details how the government will only negotiate an 81
agreement to fulfill its corresponding obligations on strict conditions. Even if a
community meets the criteria and the relevant provincial government is willing to
negotiate, any agreement will include a section that extinguishes any future claim to 82
an inherent right of Aboriginal title. The author observes that this redefinition of
Aboriginal rights inevitably confines and limits fundamental rights by effectively
precluding a more broad interpretation than what is in the agreement. Peoples’ futures
become dependent on untested treaty rights, with fewer lands and just remedies in
respect of them available to serve the needs of future generations. This is contrary to 83
80 Ibid at 74. 81 Tsilhqot’in, supra note 27 and Haida, supra note 10. 82 Supra note 77 at 41. The criteria mentioned for accepting a land claim is based on Delgamuukw: occupation of the lands over which title is asserted, by an “organized society” and to the exclusion of others, since time immemorial. 83 Ibid at 71.
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the purpose of section 35 to rectify historical injustice and may even perpetuate the
assimilation of past government policy.
In summary, reconciliation under section 35 requires a policy of negotiating land
claim agreements that better respects the value of Aboriginal title and selfgovernment
as crucial components for the sustainability of Indigenous cultures and livelihoods, as
well as the healthy environment which they depend on and protect.
Conclusion
The protection of Aboriginal rights depends on and facilitates a right to a healthy
environment and can only be meaningfully protected through this recognition by
adjudicators and policymakers alike. The strongest foundations for a right to a healthy
environment within Aboriginal law are judicial recognition of Aboriginal title, the broad
interpretation of Aboriginal and treaty rights, and negotiated selfgovernment within
modern land claim agreements.
In terms of legal issues, the incorporation of Indigenous perspectives under
Aboriginal law could protect a healthy environment by helping to get an injunction
against activities that harm the land, to which they are intimately connected. An
Aboriginal right to manage resources would inhibit nonconsensual activities negatively
impacting resources within the scope of the right, amounting to a negative right to a
healthy environment visavis governments, industry, and other parties. Aboriginal title
includes a right to manage resources and to a healthy environment in the same sense.
Similarly, an Aboriginal right to selfgovernment is necessary under a right to Aboriginal
title and, arguably, must otherwise include a right to manage resources (and a negative
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right to a healthy environment) because of Indigenous peoples’ important connection to
the land. Such rights to selfgovernment or Aboriginal title could lead to the recognition
of Indigenous law within Canadian common law as necessarily incidental, which would
add the benefit of a positive right to a healthy environment visàvis other members of
an Indigenous community and the community itself. Lastly, recognized Aboriginal and
treaty rights to harvest should include a positive right to a healthy environment since
they would otherwise be meaningless, contrary to principles of interpretation from the
section 35 jurisprudence.
From a policy perspective, governments should strive to overcome political
opposition to recognize Indigenous law and expand Aboriginal rights to fulfill moral and
legal obligations to Indigenous peoples and achieve better environmental outcomes in
Canada. Governments should engage with Indigenous communities and ensure that
their health and other perspectives are considered in environmental decisionmaking,
for the same reasons. The recent release of the report by the Truth and Reconciliation
Commission has provided an opening for governments to implement the United Nations
Declaration on the Rights of Indigenous Peoples and achieve reconciliation through
Indigenous selfdetermination. Such a policy must make space for Indigenous
institutions to provide economic, social, cultural and environmental benefits to
Indigenous communities and Canada. Lastly, ongoing modern land claim negotiations
should better respect the value of Aboriginal title and selfgovernment as crucial
components for the sustainability of Indigenous cultures and livelihoods, as well as the
healthy environment which they depend on and protect.
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