January 20, 2013.Canadian Public and Constitutional Law - LAW 6847PLLM in Canadian Common LawOsgoode Professional DevelopmentYork University.Patrick Petzall - Mid-Term Assignment

1. IntroductionPerhaps the most distinctive aspect of the Canadian constitutional regime is that concerning the recognition and protection of rights of aboriginal peoples and the evolution of such regime through the decisions adopted by the Supreme Court of Canada to further the protection of those rights. The first and defining document concerning rights of indigenous peoples of Canada is the Royal Proclamation of 1763 which stated:And whereas it is just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting GroundsThe Royal Proclamation of 1763 defines a Canadian approach to relating to aboriginal peoples which separated England`s policy from that of other powers in the Americas by virtue of being both realistic in acknowledging the strength of aboriginal peoples at the time, but also by a having greater measure of enlightenment, as the Supreme Court of Canada stated in Calder et al v. Attorney General of British Columbia (1973) when it said:In respect of this Proclamation, it can be said that when other exploring nations were showing a ruthless disregard of native rights England adopted a remarkably enlightened attitude towards the Indians of North America. The Proclamation must be regarded as a fundamental document upon which any just determination of original rights rests[footnoteRef:1] [1: Calder et al. v. Attorney-General of British Columbia,[1973] S.C.R. 313]

The Court in Calder made reference to the seminal decision of Province of Ontario v. Dominion of Canada,where the Court described this approach as follows:A line ofpolicybegotten of prudence, humanity and justice adopted by the British Crown to be observed in all future dealings with the Indians in respect of such rights as they might suppose themselves to possess was outlined in the Royal Proclamation of 1763 erecting, after the Treaty of Paris in that year, amongst others, a separate government for Quebec, ceded by that treaty to the British Crown.That policy adhered to thenceforward, by those responsible for the honour of the Crown led to many treaties whereby Indians agreed to surrender such rights as they were supposed to have in areas respectively specified in such treaties.[footnoteRef:2] [2: Provinceof Ontario v. Dominion ofCanada, [1909] S.C.R. 1 at pp. 103 and 104.]

In order to better protect aboriginal rights, the Supreme Court of Canada has developed through jurisprudence the duty of the Crown to consult aboriginal peoples as a pre-condition for justifying actions that may impair yet to be ascertained aboriginal rights. If the Proclamation of 1763 is remarkable by recognizing aboriginal rights, even more remarkable is the evolution of the constitutional regime concerning the protection of such rights, particularly that of the duty to consult aboriginal peoples in the last 30 years as a result of s. 35 of the Constitution Act of 1982 that affirmed existing aboriginal rights[footnoteRef:3], and the precedent-setting decisions of the Courts of Canada. [3: Section 35 ofthe Constitution Actstates: 35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.]

In this regard Peter Hogg has put it clearly:I venture the conclusion that no area of Canadian law has been so transformed in such a short period of time as the law of aboriginal rights. Rights that were undefined and barely recognized in 1973, and were in any case vulnerable to legislative and constitutional extinguishment, have in the short space of little more than 30 years become powerful, constitutionally-protected rights.[footnoteRef:4] [4: HOGG, Peter The Constitutional Basis of Aboriginal Rights published in Melanges: Andree Lajoie edited by Pierre Noreau and Louise Rolland, published by THEMIS eds, 2008. Page 195.]

2. Objective and MethodologyWe intend to show in this paper that the Supreme Court of Canada created and expanded the duty to consult aboriginal peoples to supersede modern treaties, and that the trend set by the Supreme Court of Canada in its recent decisions and its treatment of the Ross River Dena Council case[footnoteRef:5]. points to allowing prominence of aboriginal rights to encroach in the legislative process itself. We will also argue that the development of this duty to consult is a clear example of judicial activism. [5: Ross River Dena Council v. Government of Yukon, [2012] YKCA 14.]

We will discuss the following decisions of the Supreme Court of Canada that established and expanded the duty to consult aboriginal peoples: Haida Nation.[footnoteRef:6] [6: Haida Nationv. British Columbia (Minister of Forests),[2004] 3 S.C.R. 511, 2004 SCC 73.]

Mikisew.[footnoteRef:7] [7: Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) [2005] SCC 69.]

Little Salmon.[footnoteRef:8] [8: Beckman vs Little Salmon/Carmacks First Nation, [2010] SCR 103.]

Manitoba Metis Federation.[footnoteRef:9] [9: Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] SCC 14]

We will also discuss the implications of the Supreme Court`s decision not to grant leave to appeal the Yukon`s Court of Appeals 2012 decision of Ross River Dena Council.3. Analysis3.1. Haida NationScholars agree that the duty to consult aboriginal peoples was first set out in clear terms by the Supreme Court of Canada in Haida Nation.In this case, the Haida people had claimed title to all the lands of Haida Gwaii and the waters surrounding it, but that title had not yet been legally recognized. British Columbia issued a Tree Farm License (T.F.L. 39) in 1961, permitting harvesting trees in an area of Haida Gwaii designated as Block 6. In 1981, 1995 and 2000, the Minister replaced T.F.L. 39, and in 1999, the Minister approved a transfer of T.F.L. 39 to Weyerhaeuser Co without consulting the Haida nation. The Haida challenged the replacements and transfer of the T.F.Ls.The Court summarized the Crown`s duty to consult aboriginal peoples and the origin of that duty in the following seminal statement: Put simply, Canadas Aboriginal peoples were here when Europeans came, and were never conquered. Many bands reconciled their claims with the sovereignty of the Crown through negotiated treaties. Others, notably in British Columbia, have yet to do so. The potential rights embedded in these claims are protected byS. 35of theConstitution Act, 1982. The honour of the Crown requires that these rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation. While this process continues, the honour of the Crown may require it to consult and, where indicated, accommodate Aboriginal interests.[footnoteRef:10] [10: Haida Nation at para. 25.]

The root of that duty to consult is the honour of the Crown: The governments duty to consult with Aboriginal peoples and accommodate their interests is grounded in the honour of the Crown. The honour of the Crown is always at stake in its dealings with Aboriginal peoples It is not a mere incantation, but rather a core precept that finds its application in concrete practices.[footnoteRef:11] (Emphasis added) [11: Haida Nation at para. 16.]

With regard to which rights were the object of the duty to consult, the Court relied on the chambers judges finding that the Haida:never surrendered their rights by treaty, and that their rights had not been extinguished by federal legislation.[footnoteRef:12] [12: Haida Nation at para. 69.]

This is particularly relevant for our purposes as subsequent decisions will expand the scope of the duty to consult to situations where it could well be argued that the rights had been limited or abrogated.3.2. MikisewIn this case, the dispute centers on the placement of a winter road tracking around the Mikisew Reserve. In 2000 the Federal Government approved a winter road, which was to run through theMikisews reserve, without consulting them. After theMikisewprotested, the road alignment was modified (but without consultation) to track around the boundaryofthe reserve. Note that the reserve was set up under treaty 8 and the road is placed in lands surrendered by the Mikisew under said historic treaty.In this decision the Court extends the duty to consult to dispositions over lands that had been surrendered under a historic treaty, as the decision itself acknowledges:InSparrow, it will be remembered, the federal governments fisheries regulations infringed the aboriginal fishing right, and had to be strictly justified. This is not the same situation as we have here, where the aboriginal rights have been surrendered and extinguished, and the Treaty 8 rights are expressly limited to lands not required or taken upfrom time to timefor settlement, mining, lumbering, trading or other purposes (emphasis added). The languageof the treaty could not be clearer in foreshadowing change. Nevertheless the Crown was and is expected to manage the change honourably.[footnoteRef:13] [13: Mikisew at para. 31.]

The Court discusses at length the potential impact of the Crowns plan to lay down the road and concludes that the process through which the Crown takes over land in accordance with the Treaty 8 must also fulfill the requirements inherent to the honour of the Crown:The duty to consult is grounded in the honourofthe Crown, and it is not necessary for present purposes to invoke fiduciary duties. The honourofthe Crown is itself a fundamental concept governing treaty interpretation and application that was referred to by GwynneJ.ofthis Courtas a treaty obligationas far back as 1895, four years before Treaty 8 was concluded:ProvinceofOntariov. DominionofCanada(1895), 25 S.C.R. 434, at pp. 511-12perGwynne J. (dissenting). While he was in the minority in his view that the treaty obligation to pay Indian annuities imposed a trust on provincial lands, nothing was said by the majority in that case to doubt that the honourofthe Crown was pledged to the fulfilmentofits obligations to the Indians. This had been the Crowns policy as far back as theRoyal Proclamationof1763, and is manifest in the promises recorded in the reportofthe Commissioners.[footnoteRef:14] [14: Mikisew at para. 51.]

The Court refers to Treaty 8 negotiations (and the treaty itself) as the first step in a long journey that is unlikely to end any time soon thereby stressing that in the Courts view reconciliation is an ongoing process that requires consultation and accommodation of treaty rights that does not allow for literal interpretations. This view materializes when the Court strongly disagrees with the Crowns position that it is entitled to act unilaterally under the Treaty:There is in theMinisters argument a strong advocacyofunilateral Crown action (a sortofthis is surrendered land and we can do with it what we like approach) which not only ignores the mutual promisesofthe treaty, both written and oral, but also is the antithesisofreconciliation and mutual respect.[footnoteRef:15] [15: Mikisew at para. 49.]

According to the Court, the failure of the Crown to engage in a process of direct consultation with the Mikisew ignores two core treaty interpretation principles: the fundamental goal of achieving reconciliation and the Crowns duty to act honourably.3.3. Little SalmonIn 1997, the Little Salmon/Carmacks First Nation signed a land claim agreement with the governments of Canada and the Yukon Territory. Under the treaty, the First Nation people have the right to access certain Crown land for subsistence hunting and fishing activities. In 2004, the Yukon Government transferred 65 hectares of this land to a non-native individual, who had submitted an application for an agricultural land grant in November 2001. The land falls within the trapline of a member of Little Salmon/Carmacks, who uses the land for subsistence hunting and fishing, and to teach his grandchildren about the traditions of his people. Overall, this disputed segment, identified as 65H, represents 1/3rd of 1% of the trapline.In the decision the Court reached the following key conclusions:A duty to consult exists notwithstanding that a modern treaty had been signed: When a modern treaty has been concluded, the first step is to look at its provisions and try to determine the parties respective obligations, and whether there is some form of consultation provided for in the treaty itself. If a process of consultation has been established in the treaty, the scope of the duty to consult will be shaped by its provisions.[footnoteRef:16] [16: Little Salmon at para. 67.]

However, as stated, the duty to consult is not a collateral agreement or condition. The LSCFN Treatyisthe entire agreement, but it does not exist in isolation. The duty to consult is imposed as a matter of law, irrespective of the parties agreement. It does not affect the agreement itself. It is simply part of the essential legal framework within which the treaty is to be interpreted and performed.[footnoteRef:17] [17: Little Salmon at para. 69.]

As discussed, the applicable existing or futureconstitutionalright is the right of the Aboriginal parties to have the treaty performed in a way that upholds the honour of the Crown. That principle is readily conceded by the territorial government. However, the honour of the Crown may notalwaysrequire consultation. The parties may, in their treaty, negotiate a different mechanism which, nevertheless, in the result, upholds the honour of the Crown.[footnoteRef:18] [18: Little Salmon at para. 71.]

Even surrender provisions in treaties may not remove the duty to consultThe duty to consult is treated in the jurisprudence as a means (in appropriate circumstances) of upholding the honour of the Crown. Consultation can be shaped by agreement of the parties, but the Crown cannot contract out of its duty of honourable dealing with Aboriginal people. As held inHaida Nationand affirmed inMikisew Cree, it is a doctrine that applies independently of the expressed or implied intention of the parties.[footnoteRef:19] [19: Little Salmon at para. 61.]

We also take note of the confirmation by the Court of the constitutional status of the honour of the Crown, a status that precedes the constitution itself as it stems from the Royal Proclamation of 1763:The obligation of honourable dealing was recognized from the outset by the Crown itself in the Royal Proclamation of 1763 (reproduced in R.S.C. 1985, App. II, No. 1), in which the British Crown pledged its honour to the protection of Aboriginal peoples from exploitation by non-Aboriginal peoples. The honour of the Crown has since become an important anchor in this area of the law... ...The honour of the Crown has thus been confirmed in its status as a constitutional principle.[footnoteRef:20] [20: Little Salmon, at para. 42.]

However, in this case we see signs of discord within the Court concerning the expansion of the duty to consult to overcome specific modern treaty provisions as voiced by Deschamps JJ in dissent:Associating the honour of the Crown with the observance of duly negotiated treaties implies that some value is placed on the treaty negotiation process. But for the treaty to have legal value, its force must be such that neither of the parties can disregard it. The principle of the honour of the Crown does not exempt the Aboriginal party from honouring its own undertakings.[footnoteRef:21] [21: Little Salmon at para. 106.]

To allow one party to renege unilaterally on its constitutional undertaking by superimposing further rights and obligations relating to matters already provided for in the treaty could result in a paternalistic legal contempt, compromise the national treaty negotiation process and frustrate the ultimate objective of reconciliation. This is the danger of what seems to me to be an unfortunate attempt to take the constitutional principle of the honour of the Crown hostage together with the principle of the duty to consult Aboriginal peoples that flows from it.[footnoteRef:22] [22: Little Salmon at para. 107.]

3.4. Ross River Dena CouncilIn the preceding cases we have seen how the Court expands the scope of the duty to consult from protecting rights not surrendered under any treaty (Haida Nation) to filling in gaps in historical treaties (Mikisew) to prevailing over written provisions of modern treaties by assuming complete consultation has to be a part of the treaty (Little Salmon). This trend points at the Court giving the duty to consult and its source the honour of the Crown such interpretative prominence that would lead to its eventual imposition on other governmental actions that were traditionally outside of the scope of judicial intervention like legislating. A sign of things to come was the Supreme Courts decision to deny leave to appeal the Ross River Dena Council decision. The case of Ross River Dena Council would not be particularly striking since it has significant similarities with Haida Nation in that there is no treaty in question, it is a case involving the application of a statutory regime. However, what is troubling is that the Supreme Court allowed certain statements set out by the Yukon Court to stand without limit or clarification, thus granting them a tacit endorsement. These statements are:The duty to consult exists to ensure that the Crown does not manage its resources in a manner that ignores Aboriginal claims. It is a mechanism by which the claims of First Nations can be reconciled with the Crowns right to manage resources. Statutory regimes that do not allow for consultation and fail to provide any other equally effective means to acknowledge and accommodate Aboriginal claims are defective and cannot be allowed to subsist.I acknowledge that in Rio Tinto the Supreme Court of Canada left open the question of whether government conduct includes legislative action. I read that reservation narrowly, however. It may be that the doctrine of parliamentary sovereignty precludes the imposition of a requirement that governments consult with First Nations before introducing legislation (see Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525 at 563). Such a limitation on the duty to consult would, however, only apply to the introduction of the legislation itself, and could not justify the absence of consultation in the carrying out of a statutory regime.[footnoteRef:23] (Emphasis added) [23: Ross River Dena Council at paras. 37 and 39.]

In the Rio Tinto case[footnoteRef:24] The Supreme Court of Canada discussed what constituted government action that engages the duty to consult, holding that such action is not confined to government exercise of statutory powers[footnoteRef:25] but expressly avoided addressing whether legislative action fell in that category with an almost glib We leave for another day the question of whether government conduct includes legislative action[footnoteRef:26], but immediately pointing at the Alberta Court of Appeals decision in R v. Lefthand. [24: Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650] [25: Rio Tinto, at para. 43.] [26: Rio Tinto, at para. 44.]

In R v. Lefthand[footnoteRef:27], the Alberta Court of Appeals rejected outright the possibility of the duty to consult becoming a condition for legislative action: [27: R. v. Lefthand, 2007 ABCA 206]

There can however be no duty to consult prior to the passage of legislation, even where aboriginal rights will be affected: Authorson v. Canada (Attorney General) [2003] 2 S.C.R. 40. It cannot be suggested there are any limits on Parliaments right to amend the Indian Act. It would be an unwarranted interference with the proper functioning of the House of Commons and the Provincial Legislatures to require that they engage in any particular processes prior to the passage of legislation. The same is true of the passage of regulations and Orders in Council by the appropriate Executive Council. Enactments must stand or fall based on their compliance with the constitution, not based on the processes used to enact them. Once enactments are in place, consultation only becomes an issue if a prima facie breach of an aboriginal right is sought to be justified: Mikisew Cree at para. 59.[footnoteRef:28] [28: R. v. Lefthand at para. 38.]

The explicit language of the Yukon Court left open the possibility of imposition of the duty to consult in legislative action. The Supreme Courts decision not to review any aspect of Ross River Dena Council would seem to signal that, given the opportunity in the future, the Court would discuss whether legislative action falls into the scope of government action subject to the duty to consult.

3.5. Manitoba Metis FederationWhile the tacit endorsement by the Supreme Court of Canada of the Yukon Courts reference to R. v. Lefthand and (indirectly) to Authorson v. Canada (Attorney General) [2003] 2 S.C.R. 40 suggests that the Supreme Court would reiterate that legislative action is not subject to judicial interference, a different result is readily available if we consider the characterization of the honour of the Crown (source of the duty to consult) as a constitutional principle in Little Salmon and, more recently, in Manitoba Metis Federation:The honour of the Crown arises from the Crowns assertion of sovereignty over an Aboriginal people and de facto control of land and resources that were formerly in the control of that people: Haida Nation, at para. 32. In Aboriginal law, the honour of the Crown goes back to the Royal Proclamation of 1763, which made reference to the several Nations or Tribes of Indians, with whom We are connected, and who live under our Protection: see Beckman v. Little Salmon/Carmacks First Nation, [2010] 3 S.C.R. 103, at para. 42...[footnoteRef:29] [29: Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14 at para. 66.]

This Court has also recognized that the honour of the Crown is engaged by s. 35(1) of the Constitution. In R. v. Sparrow, [1990] 1 S.C.R. 1075, the Court found that s. 35(1) restrains the legislative power in s. 91(24), in accordance with the high standard of honourable dealing: p. 1009. In Haida Nation, this Court explained that [i]t is a corollary of s. 35 that the Crown act honourably in defining the rights it guarantees: para. 20. Because of its connection with s. 35, the honour of the Crown has been called a constitutional principle: Little Salmon, at para. 42.[footnoteRef:30] (Emphasis added) [30: Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14 at para. 69.]

If the honour of the Crown has constitutional standing, if it is engaged explicitly by the Charter, and if it has already been found to restrain legislative power, is it that hard to imagine the Supreme Court of Canada in its quest to achieve reconciliation in our time - continuing its trend of expanding the scope of the duty to consult to encompass all areas of governmental action that may impact aboriginal rights, including legislative action? While we cannot predict what will be the Supreme Courts choice in the future, we have shown how it has allowed itself sufficient room to contemplate either alternative.As professor Hogg said in his article:

By the standards of constitutional lawyers, this has been a wild ride![footnoteRef:31] [31: HOGG, Op. Cit. Page 196. ]