Chapter 9

The honour of the Crown, the duty to consult and the United Nations Declaration on the Rights of Indigenous Peoples

The duty to consult aboriginal communities whose land rights are infringed by governments was first fully considered by the Canadian Supreme Court in Delgamuukw v British Columbia,1 although the Report of the Royal Commission on Aboriginal Peoples (RCAP) notes that Treaty 6 negotiations in 1876 began with ceremonies and declarations which represented the honour of the Crown and set the moral and spiritual context within which the negotiations were to be conducted.2

Delgamuukw confirmed the requirement that the fiduciary is to act always in the utmost good faith and solely in the interests of the beneficiary. This duty includes dealing in the beneficiary’s property only with the free, prior and informed consent of the beneficiary. However, following the dictum of Lamer CJC in the case, where government policy can be justified, the fiduciary duty has been reduced to a duty to take the aboriginal beneficiary’s interests into consideration and to place them second to government policy if the government can justify such a course of action. Thus, the duty to act only with fully informed consent has been replaced by a duty to consult, and not necessarily to act according to the wishes of the indigenous people.

In a discussion of the grounds on which governments could justify the release of aboriginal lands for resource extraction and development, Lamer CJC proposed that:

the development of agriculture, forestry, mining and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with the purpose and, in principle, can justify the infringement of aboriginal title.

He went on to say that indigenous rights need not always be given priority in such cases, but instead that the fiduciary duty owed by the Crown entailed ‘an altered approach to priority’ under which the government demonstrates that priority is reflected in the way in which resources are allocated to the original holders of the land. This could be achieved, for example, by conferring fees simple3 or licences so that the aboriginal peoples could take part in the proposed schemes. He concluded that:

This aspect of aboriginal title suggests that the fiduciary relationship between the Crown and aboriginal peoples may be satisfied by the involvement of aboriginal peoples in decisions taken with respect to their lands. There is always a duty of consultation … The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases, when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title. Of course, even in these rare cases when the minimum acceptable standard is consultation, this consultation must be in good faith and with the intention of substantially addressing the concerns of the aboriginal people whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands.

The question of the degree of consultation required came before the Supreme Court again in 2004 in two cases, Haida Nation v British Columbia (Ministry of Forests) and Taku River Tlingit First Nation v British Columbia (Assessment Director),4 which together provided a clearer set of rules on what was required of the Crown. In Haida, McLachlin CJ used the concept of the honour of the Crown to underpin Canada’s obligations – ‘a precept that finds its application in concrete practices’. The principle requires that the Crown must act honourably in all its dealings with aboriginal peoples and its purpose is to bring about and maintain reconciliation of the pre-existence of aboriginal societies with the claimed sovereignty of the Crown. This gives rise to the fiduciary duty which requires that the Crown act always in the best interests of the aboriginal peoples over whose lands it has discretionary control. The honour of the Crown, she said, ‘infused the processes of treaty making and treaty interpretation’, and means that: ‘The Crown must act with honour and integrity, avoiding even the appearance of “sharp dealing”.’

Chief Justice McLachlin explained that the purpose of this principle is to secure and maintain the peace and friendship of the indigenous people concerned. She said that section 35 of the Constitution Act 1982 represents this promise and ‘it is always assumed that the Crown intends to fulfil its promises’. She concludes that the promise is realised and the claims of sovereignty reconciled ‘through the process of honourable negotiation’. This implies that the Crown must act honourably in defining the rights it guarantees and in reconciling them with other rights and interests. Thus, the Crown has a duty to consult and where possible accommodate:

The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof … To unilaterally exploit a claimed resource during the process of proving and resolving the Aboriginal claim to that resource, may be to deprive the Aboriginal claimants of some or all of the benefit of the resource. That is not honourable.

McLachlin CJ says that true reconciliation can only flow from the Crown’s honourable dealing with land and resources over which it has taken de facto control from the aboriginal people concerned. This means that the duty to consult arises as soon as aboriginal rights are asserted, not when they are finally proven. Once this duty arises, the nature of the consultation, at a minimum, must be consistent with the honour of the Crown, acting in good faith to provide meaningful consultation appropriate to the circumstances. However, she goes on to point out that there is no duty to agree and that aboriginal claimants must also act in good faith, especially when agreement is not reached.

The Chief Justice then introduces the concept of a spectrum of what is required in particular circumstances. This would start with minor incursions on a weak claim to title over limited rights. In such cases, which she considered to be rare, the Crown need only give notice, disclose information and discuss any issues raised by the Aboriginal people. At the far end of the spectrum, there will be a strong prima facie claim, the infringement will be highly significant to Aboriginal people and the risk of damage which cannot be compensated will be high. In such a case meaningful consultation may require the opportunity to make submissions, formal participation in the decision-making process, and provision of written reasons to show what impact their concerns had on the decision-making process. She suggested that mediation and arbitration procedures might be appropriate.

Next, the judge cited the New Zealand Ministry of Justice Guide for Consultation with Maori, 1997:

Consultation is not just a process of exchanging information. It also entails testing and being prepared to amend policy proposals in the light of information received and providing feedback. Consultation therefore becomes a process which should ensure both parties are better informed … Genuine consultation means a process that involves:

• Gathering information to test policy proposals

• Putting forward proposals that are not yet finalised

• Seeking Maori opinion on those proposals

• Informing Maori of all relevant information upon which those proposals are based

• Not promoting but listening with an open mind to what Maori have to say

• Being prepared to alter the original proposal

• Providing feedback both during the consultation process and after the decision-process.

She added that genuine consultation may suggest an amendment to Crown policy to bring about accommodation. What is required is a balancing of conflicting interests. This New Zealand model is more comprehensive than current Canadian practice as demonstrated in the consultation clauses in land settlement agreements and, if adhered to, constitutes a model of good practice.

Any challenge to Crown policy on the grounds of lack of, or inadequate, consultation should be dealt with under Canadian administrative law, when the question for the court would be ‘whether the regulatory scheme or government action, viewed as a whole, accommodates the aboriginal right in question; and in information and consultation, reasonableness must be the test and efforts must be proportionate to the strength of the aboriginal case’.

Michael Asch asks: ‘If Indigenous peoples had legitimate sovereignty when Europeans first arrived, how did the Crown legitimately acquire it?’, pointing out that Lamer CJ in R v Van der Peet,5 and then in Delgamuukw, asserted that a basic purpose of constitutionalising aboriginal rights was ‘the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown’ – rather than the other way round.6 In Taku, in which McLachlin CJ also gave the judgment of the Supreme Court, she added that ‘the purpose of s35(1) of the Constitution Act 1982 is to facilitate the ultimate reconciliation of prior Aboriginal occupation with de facto Crown sovereignty’. Asch points out that she replaced the words ‘pre-existence of aboriginal societies’ with ‘prior aboriginal occupation’ and prefixed ‘the sovereignty of the Crown’ with the words ‘de facto’. This appears to be the court’s own attempt to reconcile the differing views of the Crown and the indigenous peoples over ownership of the land.

In the Taku case, the Taku River Tlingit First Nation claimed that they were not properly consulted when the province of British Columbia granted a certificate which permitted the reopening of an old mine on their land. The province had followed the guidelines of the Environmental Assessment Act 1992. The Taku River Tlingit were invited to participate in the project committee and were given the original submission for review and comment. They were active members of the project committee, apart from a short period of time when they opted out of its proceedings to pursue other solutions to their requirements. They met directly with the mining company on several occasions to raise concerns and receive information. The company paid for extensive archaeological and ethnographic studies to assess the impact of the mine and ancillary development on the Tlingit traditional way of life. Under these circumstances, the Chief Justice concluded that there had been adequate consultation and accommodation of the aboriginal concerns.

In the subsequent Supreme Court decision in Mikisew Cree First Nation v Canada (Minister of Canadian Heritage),7 Binnie J again emphasised the importance of the honour of the Crown: ‘The honour of the Crown infuses every treaty and the performance of every treaty obligation.’

The significance of the duty to consult as laid down in modern treaties has been further underscored by the Supreme Court of Canada in Beckman v Little Salmon/Carmacks First Nation.8 The definition of ‘consult’ found in the Little Salmon/Carmacks First Nation Final Agreement9 considered in the case is exactly the same as that in the Innu New Dawn Agreement in Principle. This in itself calls into question the various governments’ willingness to negotiate open-mindedly with the indigenous peoples whose land they are taking and to deal with each group according to its individual circumstances.

In Little Salmon/Carmacks, the Supreme Court was divided, Judges McLachlin and Binnie taking the majority view established by them in previous cases and emphasising the duty imposed on governments under the concept of the honour of the Crown. Speaking for the minority, Deschamps J took a harder, more pragmatic line. The minority proposed that, once the terms under which consultation was to take place were defined in the treaty, these terms, and all other terms agreed, must prevail. Because modern land claims treaties were contractual, the common law duty to consult only applied when no such terms were specified. Speaking for the majority, Binnie J held that the modern treaty was not intended to be a complete code and that the honour of the Crown applied independently of the expressed or implied intention of the parties as recorded in the treaty. Nevertheless, he held that:

The content of meaningful consultation ‘appropriate to the circumstances’ will be shaped, and in some cases determined, by the terms of the modern land claims agreement. Indeed, the parties themselves may decide therein to exclude consultation altogether in defined situations and the decision to do so would be upheld by the courts where this outcome would be consistent with the maintenance of the honour of the Crown.

The Supreme Court acknowledged the differences between the historic treaties, where Binnie J said that the court had to resort to principles such as the honour of the Crown to ensure a fair outcome, and the modern treaties – starting with the James Bay and Northern Quebec Agreement (JBNQA) in 1975.

Modern treaties … while still to be interpreted and applied in a manner that upholds the honour of the Crown, were nevertheless intended to create some precision around property and governance rights and obligations. Instead of ad hoc remedies to smooth the way to reconciliation, the modern treaties are designed to place Aboriginal and non-Aboriginal relations in the mainstream legal system with its advantages of continuity, transparency and predictability.

This raises the question: advantages for whom? These treaties certainly produce predictability and continuity for the Crown, but the negotiation process under which the terms were ‘agreed’ produces no transparency. Yet the Supreme Court found that: ‘Where adequately resourced and professionally represented parties have sought to order their own affairs, and have given shape to the duty to consult by incorporating consultation procedures into a treaty, their efforts should be encouraged and, subject to such constitutional limitations as the honour of the Crown, the court should strive to respect their handiwork.’

If a challenge were mounted by the Innu, the precedent of Little Salmon/Carmacks would make litigation to challenge the validity of the New Dawn terms, rather than the validity of the agreement itself, a much riskier course of action.

The minority judgment given by Deschamps J frames the modern treaty as a grant to the governments of land owned by the aboriginal group. He defines the duty of consultation as provided in the treaty as a contractual duty, rather than a constitutional one designed to prevent the infringement of aboriginal rights. He looks at the duty to consult as it applies at three stages of negotiation of a land claims treaty: at the initial stage to protect the constitutional rights of aboriginal people, in the medium term to favour negotiation of the framework for exercising those rights, and in the long term to assist in reconciling aboriginal interests with mainstream interests. To allow an interpretation of a Final Agreement which negated its written provisions would be to compromise rather than foster reconciliation.

Judge Deschamps proposes that the Crown’s fiduciary duty has ‘paternalistic overtones’, and suggests that in modern times the ability of aboriginal people to conduct their own affairs should be recognised and the principle of the honour of the Crown should not be invoked to enable them to disregard their treaty obligations. This is an astounding volte-face. If such treaties were treated by the Crown as a grant from the aboriginal people, they would be negotiating from a document drawn up for and on behalf of the aboriginal people concerned, the terms would be different for each negotiation, and the Crown could not remain inflexible on the terms.

In this particular case an individual was challenging the territorial government’s right to infringe his established right to hunt and trap over land in order to grant an agricultural licence to a settler. The granting of the licence required prior consultation with the Little Salmon/Carmacks nation. The case concerned a procedural point on the appropriate level of consultation, for which the individual invoked the honour of the Crown. Judge Deschamps’ assertion that the claimant was ‘Reneging on the treaty’ seems an inappropriate term for the nature of this case.

A fiduciary duty of this nature has no basis in paternalism. Such duties have been invoked in the case of business partners and companies of equal standing. Similarly, the Royal Proclamation established a fiduciary duty between sovereign nations under which the aboriginal peoples of the time were in a superior position to the newly-arrived settlers. The duty arose because the British Crown took responsibility for the disposal of aboriginal land. Deschamps goes so far as to claim that aboriginal parties had such superior bargaining power that Europeans had no choice but to accept the terms they dictated. This is clearly not borne out by the historical record.

Deschamps J distinguishes the Little Salmon/Carmacks case from Haida and Taku on the grounds that Little Salmon/Carmacks concerns a treaty which grants rights to the Crown under provisions to which it has freely agreed. Under such a treaty, all parties are bound by its contractual terms under ‘the imperative of legal certainty’.

Earlier in the same year, the court was divided on the status of a provision in the James Bay Agreement. In Quebec (Attorney General) v Moses,10 the court had to decide whether a provision in the James Bay Agreement prevailed over federal legislation. The case was brought by the Cree because if an environmental impact assessment of a proposed mining operation had to be made under federal fisheries law, rather than under the provisions of the James Bay Agreement, there was no requirement of consultation with the aboriginal people. The case was resolved by a compromise under which the majority of the court ordered that the federal requirements prevailed but with the additional requirement of the right of the Cree to be consulted.

The reasons for decision of the Supreme Court in Little Salmon/Carmacks also reflect a shift in attitude regarding the concept of the honour of the Crown in relation to modern treaties. In their dissenting judgment, Lebel and Deschamps JJ acknowledge that:

First and foremost, the Agreement must be interpreted broadly and liberally, in a manner consistent with the government’s fiduciary obligations to the Cree. Nevertheless, the interpretation must reflect a reasonable analysis of the parties’ intentions and interests, taking into account both the historical context and the legal context of the Agreement. Finally, where two or more interpretations are reasonably possible, the interpretation most consistent with the interests of the Aboriginal signatories must prevail.

The dissenting judges rehearse the interpretive criteria set out in R v Marshall,11 including the provision that technical or contractual interpretations of treaty wording should be avoided. This, they claim, with some support from the majority of the court, applies only to the historic treaties. They claim that the rationale for this approach is that the negotiation of the historic treaties was ‘marked by significant differences in the signatories’ languages, concepts, cultures and world views’. This, they claimed, had no place in the negotiation of modern treaties. Yet the evidence set out in the succeeding chapters of this study demonstrates that not only are these differences current, but they are a tool in governments’ negotiation process.

These dissenting opinions underpin the governments’ case for any future challenge to the terms of a land claims agreement. Dissenting opinions by their very nature are not binding on future courts, but such an opinion from the Supreme Court is highly persuasive. If it is accepted by a future court and leads to a decision in favour of the governments, it will pass into binding Canadian case law.

Deschamps J in Little Salmon/Carmacks challenged the assertion that ‘in treaty negotiations the Crown and Aboriginal parties have deeply divergent points of view on the objectives of legal certainty’, attributing this to the adversarial nature of court proceedings. In effect, this challenges any entitlement of the aboriginal people to respect for their world view, beliefs and culture. Perhaps it points to a suspicion that those aboriginal people who claim to represent their peers at the negotiating table have become detached from the values that those people hold dear.

Tsilhqot’in Nation v British Columbia¹²

Having further developed the concept of the honour of the Crown in Haida and Taku, in Tsilhqot’in, McLachlin CJ, with the agreement of a court of eight senior judges, makes a clear statement that full beneficial ownership of aboriginal lands rests with the aboriginal title holders. This goes a long way towards clarifying the Supreme Court’s approach to modern treaties and shows the long-awaited understanding of what a fiduciary duty entails in relation to land – something which the courts have been reluctant to spell out in earlier cases. The Crown can enjoy no rights over the land for its own benefit. This means that indigenous groups can decide how their land is to be used, provided that they use it in ways which will preserve use and enjoyment of the land for future generations. This is a new definition of the nature of indigenous title to land, in that this decision places more emphasis on the rights of future generations, which have not been fully taken into consideration in earlier cases. We must wait to see how this is developed by future litigation.

However, the Crown’s right to encroach on indigenous land for purposes which are justified by a ‘compelling and substantial public purpose and are not inconsistent with the Crown’s fiduciary duty to the Aboriginal group’ (at para 2) remains intact; but perhaps with more emphasis on the fiduciary duty. The decision raises the possibility of a redefinition of what constitutes ‘compelling’ and substantial objectives. The purpose of a justification principle, the Chief Justice asserts, is to promote reconciliation between Canadians and the indigenous peoples who live alongside them. Thus, despite a change of emphasis, her position falls well within the ‘Citizens Plus’ approach to the resolution of indigenous land rights which will be discussed in the final chapters. Nevertheless, the decision will encourage indigenous nations to pursue restitution of their land rights through the court.

McLachlin CJ first gives a summary of her conclusions, which include:

• aboriginal title confers the right to use and control the land and to reap the benefits flowing from it;

• where title is asserted, but has not yet been established, section 35 of the Constitution Act 1982 requires the Crown to consult with the group asserting title and, if appropriate, accommodate its interests;

• once title is established, section 35 of the Constitution Act 1982 permits incursions on aboriginal land only with the consent of the aboriginal group, unless they are justified by a compelling and substantial public purpose and are not inconsistent with the Crown’s fiduciary duty to the aboriginal group;

• for purposes of determining the validity of provincial legislative incursions on lands held under aboriginal title, this framework displaces the doctrine of interjurisdictional immunity [defined at para 131 of the 1982 Act as follows: ‘the doctrine of interjurisdictional immunity applies where laws enacted by one level of government impair the protected core of jurisdiction possessed by the other level of government’]; and

• in this case, the province’s land use planning and forestry authorisation were inconsistent with its duties owed to the Tsilhqot’in nation. [para 2]

Her starting point is the existing state of the law as laid down in Delgamuukw, which she restates at para 14:

The principles developed in Calder, Guerin and Sparrow were consolidated and applied in Delgamuukw v British Columbia … This Court confirmed the sui generis nature of the rights and obligations to which the Crown’s relationship with Aboriginal peoples gives rise and stated that what makes Aboriginal title unique is that it arises from possession before the assertion of British sovereignty, as distinguished from other estates such as fee simple that arise afterwards. The dual perspectives of the common law and of the Aboriginal group bear equal weight in evaluating a claim for Aboriginal title.

She adds that, in the subsequent case of Haida, it was decided that the Crown had both a moral and a legal duty to negotiate in good faith to resolve land claims and that ‘the governing ethos is not one of competing interests but of reconciliation’. [para 17]

At para 24, she points out that the court has never considered whether a semi-nomadic group has title to lands. She reminds the court that the Delgamuukw criteria for aboriginal title were based on occupation prior to assertion of European sovereignty. Three characteristics must apply: ‘It must be sufficient, it must be continuous (where present occupation is relied on) and it must be exclusive.’

McLachlin CJ considered these to be useful lenses through which to assess occupation but warned that ‘the court must be careful not to lose or distort the Aboriginal perspective by forcing ancestral practices into the square boxes of common law concepts, thus frustrating the goal of translating pre-sovereignty Aboriginal interests into equivalent modern legal rights’. [para 32]

In considering sufficiency of occupation, the Chief Justice says that the court must look to both aboriginal and common law principles. She accepts Brian Slattery’s argument that in considering sufficiency from an aboriginal perspective, the court must take into account the ‘group’s size, manner of life, material resources, and technological abilities, and the character of the lands claimed’. [para 35]

Added to this, from the common law perspective, the court must consider possession and control of the lands. The Chief Justice points out that under common law this extends beyond sites that are physically occupied to lands that are effectively controlled. [para 36]

She proposes that the test for sufficiency is as follows:

To sufficiently occupy the land for purposes of title, the Aboriginal group in question must show that it has historically acted in a way that would communicate to third parties that it held the land for its own purposes. This standard does not demand notorious or visible use akin to proving a claim for adverse possession, but neither can the occupation be purely subjective or internal. There must be evidence of a strong presence on or over the land claimed, manifesting itself in acts of occupation that could reasonably be interpreted as demonstrating that the land in question belonged to, was controlled by, or was under the exclusive stewardship of the claimant group. As just discussed, the kinds of acts necessary to indicate a permanent presence and intention to hold and use the land for the group’s purposes are dependent on the manner of life of the people and the nature of the land. Cultivated fields, constructed dwelling houses, invested labour, and a consistent presence on parts of the land may be sufficient, but they are not essential to establish occupation. The notion of occupation must also reflect the way of life of the Aboriginal people, including those who were nomadic or semi-nomadic. [para 38]

At para 41 she says that a culturally sensitive approach to this question is required, and that: ‘… A culturally sensitive approach suggests that regular use of territories for hunting, fishing, trapping and foraging is “sufficient” use to ground Aboriginal title, provided that such use, on the facts of a particular case, evinces an intention on the part of the Aboriginal group to hold or possess the land in a manner comparable to what would be required to establish title at common law.’

She defines continuity as follows: ‘Continuity simply means that for evidence of present occupation to establish an inference of pre-sovereignty occupation, the present occupation must be rooted in pre-sovereignty times.’ [para 46]

She then turns to the establishment of exclusivity of occupation and defines this as follows:

Exclusivity should be understood in the sense of intention and capacity to control the land. The fact that other groups or individuals were on the land does not necessarily negate exclusivity of occupation. Whether a claimant group had the intention and capacity to control the land at the time of sovereignty is a question of fact for the trial judge and depends on various factors such as the characteristics of the land in question. Exclusivity can be established by proof that others were excluded from the land, or by proof that others were only allowed access to the land with the permission of the claimant group. The fact that permission was requested and granted or refused, or that treaties were made with other groups, may show intention and capacity to control the land. Even the lack of challenges to occupancy may support an inference of an established group’s intention and capacity to control. [para 48]

At para 50 the Chief Justice points out that the burden of establishing aboriginal title lies with the aboriginal group concerned. This entails identifying how pre-sovereignty rights and interests can properly find expression in modern common law terms. Moving on from Delgamuukw, she asserts that: ‘Occupation sufficient to ground Aboriginal title is not confined to specific sites of settlement but extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources and over which the group exercised effective control at the time of assertion of European sovereignty.’ [para 50]

As Bruce McIvor observes, ‘the government’s myopic focus on dots-on-a-map is now indefensible’.13

Establishment of aboriginal title remains a question of fact for the Chief Justice. [para 52]

This decision is the latest in a line of cases beginning with Delgamuukw which attempt to balance and to reconcile aboriginal title with common law title. McLachlin CJ is bound by the precedent set in these earlier cases but she is the first to acknowledge that, although the Crown has an underlying title to aboriginal lands, because of the fiduciary duty owed by the Crown the full beneficial interest in the lands lies with the aboriginal people. In her words, this means that: ‘… Aboriginal title is a beneficial interest in the land: Guerin at p 382. In simple terms, the title holders have the right to the benefits associated with the land – to use it, enjoy it and profit from its economic development. As such, the Crown does not retain a beneficial interest in Aboriginal land.’ [para 70]

This means that the Crown has no right to benefit in any way from aboriginal land – all the benefits belong to the aboriginal group and the Crown’s title is an empty title. She further contends that: ‘Terra nullius [that no one owned the land prior to European assertion of sovereignty] never applied to Canada as confirmed by the Royal Proclamation 1763 … The Aboriginal interest in land that burdens the Crown’s underlying title is an independent legal interest, which gives rise to a fiduciary duty on the part of the Crown.’ [para 69] (emphasis added)

All that remains to the Crown according to precedent are two elements:

• a fiduciary duty owed by the Crown to aboriginal people when dealing with aboriginal lands; and

• the right to encroach on aboriginal title if the government can justify this in the broader public interest under section 35 of the Constitution Act 1982. [para 71]

I dispute this second point – the plain words of section 35 make no provision for justification on public policy grounds. The list of activities which can be justified by governments also remains unchanged – resource extraction, land for settlement and hydro-electricity. There is no indication whatsoever in section 35 that incursions into aboriginal title can be justified. But McLachlin CJ accepts the decision in R v Sparrow which wrote into this provision a government’s right, in the interests of reconciliation, to justify incursions into aboriginal land and rights on a public benefit argument.

At para 72, she approves La Forest J’s dictum in Delgamuukw that aboriginal title ‘is not equated with fee simple [common law] title; nor can it be described with reference to traditional property law concepts’.

Thus, she concludes: ‘Aboriginal title confers ownership rights similar to those associated with fee simple, including the right to decide how the land will be used; the right of enjoyment and occupancy of the land, the right to possess the land, the right to the economic benefits of the land, and the right to pro-actively use and manage the land.’ [para 73]

Her next point is of the utmost importance: there is an important restriction on aboriginal title. It is a collective title ‘held not only for the present generation but for all succeeding generations’. [para 74] She explains: ‘This means that it cannot be alienated except to the Crown or encumbered in ways that would prevent future generations of the group from using and enjoying it.’ [para 74]

This is a departure from earlier jurisprudence, in that previously collective title was only spoken of as applying to members of the present generation. McLachlin CJ speaks of the collective title as the ‘pre-sovereignty incidents of use and enjoyment that were part of the collective title enjoyed by the ancestors of the claimant group’ and points out that land use is not restricted to traditional uses: ‘Aboriginal title holders of modern times can use their land in modern ways, if that is their choice.’ [para 75].

The aboriginal right of control over aboriginal land means that governments and others seeking to use the land must obtain the consent of the original title holders. [para 76]

This is the most accurate analysis of the fiduciary duty owed by the Crown to the aboriginal peoples of Canada to be handed down by the Supreme Court of Canada. Nevertheless, the Crown’s power to justify infringement of aboriginal rights remains virtually intact. McLachlin CJ reiterates the requirements for a justification argument as follows:

• that the government discharged its procedural duty to consult and accommodate;

• that its actions were backed by a compelling and substantial objective; and

• that the governmental action is consistent with the Crown’s fiduciary obligation to the group. [para 77]

Thus, the requirement of free, prior and informed consent which applies to a fiduciary is still reduced to the duty to ‘consult and accommodate’. We have seen in Little Salmon/Carmacks that, where there is a land settlement agreement in place, this duty is defined and further diluted by the provisions of that agreement. Further, the spectrum of the consultation laid down in Haida remains intact.

There appears to be a conflict between, for example, permitting hydroelectric development on aboriginal land and leaving it free for future generations of title holders, especially as in para 80 the Chief Justice spells out that what is required is: ‘… both a compelling and substantial government objective and that the government action is consistent with the fiduciary duty owed by the Crown to the Aboriginal people’. [para 80]

She confirms that the compelling and substantial objective of the government ‘must be considered from the Aboriginal point of view’. [para 81] (emphasis added)

In the next part of her reasons for decision, McLachlin CJ reasserts her purpose, as in previous cases, of promoting reconciliation between aboriginal rights and the rights of Canadian society as a whole. This, she says, is the purpose of the doctrine of justification. [para 82] However, she introduces a new criterion: ‘incursions on Aboriginal title cannot be justified if they would substantially deprive future generations of the benefit of the land’. [para 86]

In para 87 she introduces the concept of proportionality.

The Crown’s fiduciary duty demands that the government goes no further than necessary to achieve its goal (minimal impairment) and that the benefits that may be expected to flow from it are not outweighed by the adverse effects on the Aboriginal interest (proportionality of impact). (emphasis added)

Next, McLachlin CJ reaffirms the Crown’s duty to ‘consult in good faith’ before any incursion onto aboriginal land. [para 89] At the claims stage, prior to establishment of aboriginal title, the Crown owes a duty to consult in good faith and, if appropriate, to accommodate aboriginal interests. Where a claim is strong, e.g. immediately before a court is to declare the existence of title, the government must take ‘appropriate’ care to preserve aboriginal interests. [para 91]

Once title is established, ‘it may be necessary for the Crown to reassess prior conduct in the light of the new reality in order to faithfully discharge its duty to the title-holding group’. (emphasis added) The Chief Justice gives the example that, if the government has proceeded without the consent of the aboriginal group prior to establishment of title, it may be required to cancel a project and, if legislation has been passed to allow the project, this will be inapplicable to the extent that it infringes aboriginal title. [para 92] This does not meet the standard set by the United Nations Declaration on the Rights of Indigenous Peoples which, very late in the day, Canada endorsed. Whether this is because this point was not argued before the court is not known, but this seems likely.

In the case of the Tsilhqot’in, the group had a strong prima facie claim to the land at the time of government action and the intrusion was significant. Therefore, significant consultation and accommodation were required. [para 93] Now that title is established, the Tsilhqot’in had the right to determine the use to which the land is put and to enjoy its economic fruits. She spells out that this is not merely the right of first refusal to participate in the governments’ plans – it is the right to proactively use and manage the land [para 94] (emphasis added).

Turning to the question of interjurisdictional immunity – in this case, whether provincial laws apply to aboriginal lands – McLachlin CJ says that there are restrictions on the applications of such laws, as laid down in Sparrow, namely:

• whether the limitations imposed by the legislation are unreasonable;

• whether the legislation imposes undue hardship; and

• whether the legislation deprives the aboriginal people of their preferred means of exercising their rights. [para 104]

These are not the only reasons for invalidating the legislation as far as aboriginal peoples are concerned, but unless the infringement of aboriginal title caused by the legislation is censured by the court, provincial laws of general application will apply to aboriginal lands. [para 106] However, she concludes at para 141 that, unless governments can justify their legislation under section 35 of the Constitution Act 1982, aboriginal rights are a limit on both federal and provincial jurisdictions. These remarks were made obiter dicta – i.e. they were not essential to the decision handed down in the case. They are therefore persuasive in future court decisions, but not binding. It has been suggested that these dicta were included in the reasons for decision in order to secure a unanimous verdict.14

The Tsilhqot’in decision has been criticised by Professor Robert A. Williams.15 He points out that ‘what the court is saying is that your government can come in and infringe on your title as long as it has a compelling justification’. I would go further and submit that if indigenous peoples – such as the Innu in Labrador – settle a land claim, under the present system principles of justification do not even apply. As has been seen in the dissenting judgments in Little Salmon/Carmacks, the indigenous group will be held to what they have signed.

The only way for indigenous rights to be fully upheld is to go to court for a declaration in the wake of Tsilhqot’in. Whether any court would be prepared to rule that the justification argument approved in Sparrow was spurious is problematical, but McLachlin CJ, by linking justification so explicitly to section 35(1), has created an opening for such an argument. Harry Swain and James Baillie point out that the law enacted in section 35(1) is entirely judge-made, and future decisions of the Supreme Court could provide a new interpretation.16

They go on to point out that corporations and investors are unlikely to proceed on projects on indigenous land unless there is resolution of the issues, whether through an agreement between the indigenous group and the Crown, a court case or negotiation.17 The most likely course of action would be a negotiation where the governments come to the table with a set agenda and the indigenous group is no further forward because it has to commit to the consultation provisions in the agreement itself.

At the same time as the Tsilhqot’in decision was handed down, the Conservative Harper government was backing off from the Comprehensive Land Claims process. It is claimed that the government was instead focussing its efforts on assimilation of indigenous governance into federal and provincial structures. According to Russell Diabo, its principal purpose was to ‘terminate the constitutionally protected and internationally recognized Inherent Aboriginal and Treaty Rights of First Nations’.18 Whether this will change materially under the Trudeau administration remains to be seen.

The Harper policy is borne out by an article on the Guardian website by Martin Lukacs19 which reports that, since 2008, the Department of Aboriginal Affairs and Northern Development Canada has been trying to evaluate the ‘significant risks’ posed to Canadian plans to attract C$650 billion of investment to the extractive industries on indigenous lands. The government is seeking to evade Supreme Court decisions such as Tsilhqot’in. In the article, Arthur Manuel, chair of the Indigenous Network on Economies and Trade, is quoted as follows: ‘The Harper government is committed to a policy of extinguishing indigenous peoples’ land rights, instead of a policy of recognition and co-existence. They are trying to contain the threat that our rights pose to business-as-usual and the expansion of dirty energy projects. But our legal challenges and direct actions are creating economic uncertainty and risk, raising the heat on government to change its current policies.’

It is further pointed out that ‘native land claims scare the hell out of investors’.

In the same article, Martin Lukacs claims that the federal government ‘has spent far more fighting aboriginal litigation than any other legal issue – including $106 million in 2013, a sum that has grown over the last several years’. At the same time, Lukacs reports, the government is cutting funding to indigenous groups who seek to fight land claims.

It would appear that the fight for land to which indigenous groups are entitled has reached a new phase. Legislation will always trump litigation and the economic stakes may be high enough for the federal government to risk legislation which will extinguish indigenous rights to land which has not already been the subject of a settlement agreement.

Kenneth Coates and Dwight Newman suggest that ‘… what the Supreme Court has highlighted at a fundamental level is that Aboriginal communities have a right to an equitable place at the table in relation to natural resource development in Canada. Their empowerment through Tsilhqot’in and earlier decisions has the potential to be immensely exciting as a means of further economic development in Aboriginal communities and prosperity for all.’20

Their work is a call for academics and lawyers to be accurate in their analysis of the case.

Grassy Narrows First Nation v (Ontario) Natural Resources21

Two weeks after the decision in Tsilhqot’in, the doctrine of interjurisdictional immunity was further eroded when the Supreme Court of Canada was called upon to adjudicate on the role of the federal government in supervising the granting of logging licences over indigenous land in Ontario. The case concerned Treaty 3 land. The original treaty had been concluded between the Crown in Right of Canada and the ancestors of the Ojibwa people and included a right for Canada to ‘take up’ lands within the treaty area for the purposes of development. These lands had been ceded to the Crown subject to indigenous rights to hunt, fish and trap on these lands until they were taken up. In 1894, the right to take up the lands for development passed to the province of Ontario and from that time Ontario had issued licences over the land. In 2005, the Ojibwa challenged the granting of a forestry licence issued by the province, claiming that this should have been subject to the supervision of the federal government. The licence was for clearcutting of forest on lands over which Treaty 3 granted the Ojibwa rights to continue their traditional use of the land. Clearcutting would severely affect the exercise of these rights.

The trial judge held that there should have been a two-stage procedure under the scrutiny of the federal government which, by section 91(24) of the Constitution Act 1867 retained jurisdiction over ‘Indians and lands reserved for Indians’ in accordance with the Royal Proclamation of 1763. The Ontario Court of Appeal overturned the trial judge’s decision and, on appeal to the Supreme Court of Canada, that court also held that this two-stage procedure was not necessary. The province had the power to take up the land without reference to the federal government.

Controversially, McLachlin CJ concluded that, in the negotiations for Treaty 3, such a two-tier stage was not envisaged and that, following 1894, beneficial ownership in the treaty land lay with Ontario. She referred the court to her earlier decision on this point in Tsilhqot’in. Again, she emphasised that any action on the part of Ontario with regard to the treaty lands was subject to the justification criteria laid down in Sparrow and R v Badger, as developed in Tsilhqot’in. Following St Catherine’s Milling v R, a case which also concerned Treaty 3, she pointed out that the treaty had been made between the Ojibwa and the Crown, not the Ojibwa and the Government of Canada. [para 33] She interpreted ‘the Crown’ to include the provincial government. Further, she said, section 91(24) does not give Canada authority over the take-up of land for purely provincial purposes such as forestry, mining and settlement. [para 37] Since the possibility of acquisition of the land by the province was ‘patent’, if those drafting the treaty had wanted Canada to have a supervisory role, the treaty would have said so. [para 40] She pointed out that the province had been exercising its right to take up the land for 100 years without any previous objection on the part of the Ojibwa.

McLachlin CJ emphasised that, in exercising jurisdiction over Treaty 3 lands, the provincial government must exercise its powers in conformity with the honour of the Crown and is subject to the Crown’s fiduciary duties [para 50], and is also subject to the duty to consult and accommodate. This is spelled out in greater detail than in Tsilhqot’in at para 54:

Where a province intends to take up lands for the purposes of a project within its jurisdiction, the Crown must inform itself of the impact the project will have on the exercise by the Ojibway of their rights to hunt, fish and trap, and communicate its findings to them. It must then deal with the Ojibway in good faith and with the intention of substantially addressing their concerns [Mikisew, at para 55; Delgamuukw v British Columbia, at para 168]. The adverse impact of the Crown’s project (and the extent of the duty to consult and accommodate) is a matter of degree, but consultation cannot exclude accommodation at the outset. Not every taking up will constitute an infringement of the harvesting rights set out in Treaty 3. This said, if the taking up leaves the Ojibway with no meaningful right to hunt, fish and trap in relation to the territories over which they traditionally hunted, fished and trapped, a potential action for treaty infringement will arise [Mikisew, at para 48].

Although the province will be under the same obligation to justify and then to consult and accommodate as the federal government, this decision overrules the long line of cases cited above22 in which the law was settled that the federal government had the final say on dealings in indigenous land under section 91(24). It removes a necessary line of defence of indigenous rights which goes to the very essence of the Royal Proclamation of 1763, in that the Crown stood between indigenous peoples and settlers where there was a conflict of interests. As is obvious in Labrador in disputes over the hunting rights of Innu resident in Quebec, the federal government can play a very valuable role in the protection of indigenous rights against the ambitions of a province.

Bruce McIvor, counsel for the Wabauskang First Nation, interveners in the proceedings, points out that freedom to deal directly with the Ojibwa may place a greater constitutional responsibility on the province to ensure that consultation is sufficient. He says that for a government objective to be compelling and substantial, it must be considered from both the public and indigenous perspective and it must be deemed that the infringement on indigenous rights is necessary. Further, the Crown, be it represented federally or provincially, is constrained by the requirement that the land must be preserved for the use and benefit of future generations and its objective must be consistent with the Crown’s fiduciary obligations. This, he suggests, would preclude the interpretation of treaties as extinguishment documents.23 Cathy Guirguis and Senwunk Luk, partners in Olthuis, Kleer Townsend (lawyers to the Innu in Labrador), point out that the restrictions placed on the Crown’s ability to justify its use of indigenous land in Tsilhqot’in and Grassy Narrows fall short of the international standards of free, prior and informed consent required under the United Nations Declaration on the Rights of Indigenous Peoples. They also suggest that the Ojibwa were only prepared to co-operate over Treaty 3 if they could retain their way of life, and that they were promised that their harvesting rights could continue forever without significant interference. This was accepted by the trial judge.24

In the recent Desautel case,25 both the British Columbia Court of Appeal and the Supreme Court of Canada applied a purposive interpretation of section 35(1) of the Constitution Act 1982 and, with some dissent in the SCC, established that ancestral rights applied even if the indigenous people concerned had moved outside Canada’s national boundary. Further, if those people chose to live on a reserve as the least bad possible option, that did not constitute willingness to give up their land and rights.

In October 2010, Desautel, a citizen and resident of the United States of America, was charged with hunting without a licence contrary to section 11(1) of British Columbia’s Wildlife Act and hunting big game while not being a resident of the province contrary to section 47(a) of the Act. He defended the charges on the basis that he had an Aboriginal right to hunt, as he is a member of the Lakes Tribe of the Colville Confederated Tribes based in the State of Washington, a successor group of the Sinixt people, and he shot the elk within the ancestral territory of the Sinixt in British Columbia.

At trial, it was accepted that the date of first contact between the Sinixt and Europeans was in 1811. At that time, the Sinixt were engaged in hunting, fishing and gathering in their ancestral territory, which extended into what is now Washington State to the south, and into what is now British Columbia to the north, and until around 1870, the Sinixt continued to exercise their inherent rights in Canada. For various reasons, the Sinixt people moved to the United States. The trial judge did not find that the move was voluntary. Until 1930, they continued to hunt in British Columbia, despite living in Washington State, but continued to have a connection to the land where their ancestors hunted in British Columbia. Applying R v Van der Peet, the trial judge held that Dessautel was exercising an aboriginal right to hunt for food, social and ceremonial purposes. Desautel’s aboriginal right was protected, despite his people’s departure from the Canadian part of their traditional territory and notwithstanding a period of dormancy in the exercise of the right. The trial judge held that the right was infringed by the Wildlife Act and the infringement was not justified. Desautel was acquitted. The Supreme Court confirmed the trial judge’s approach to section 35(1) with the outcome deciding that the phrase ‘aboriginal peoples of Canada’ can include aboriginal groups that are now outside Canada.

The potential impact of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) under the doctrine of the honour of the Crown

The court in Tsilhqot’in and Grassy Narrows did not hear testimony based on UNDRIP, because it has still not passed into Canadian law. However, Canada has endorsed the Declaration and therefore, if the Crown’s fiduciary duty is to be fully observed, upholding the honour of the Crown demands that UNDRIP’s principles are fully implemented, in accordance with the preamble of the Declaration, and in particular:

Concerned that indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests,

Recognizing the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources,

…

Recognizing that respect for indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment.

(The full text of the Declaration can be found in Appendix B.)

The Coalition on the United Nations Declaration on the Rights of Indigenous Peoples explains:

The purpose of the UN Declaration was to codify the minimum universal standards for the protection of Indigenous Peoples’ human rights by all states – not by creating new rights, but by providing ’a contextualized elaboration of general human rights principles and rights as they relate to the specific, historical, cultural and social circumstances of indigenous peoples’. The UN Declaration incorporates norms and standards that already form part of customary and conventional international law and is grounded in fundamental human rights principles such as non-discrimination, self-determination and cultural integrity.26

UNDRIP provides an independent benchmark against which to assess government commitment to true reconciliation of indigenous land rights. It should be remembered that, according to Article 43, the United Nations Declaration on the Rights of Indigenous Peoples sets minimum standards for states in their dealings with indigenous peoples. Canadian delegates sat at the UN negotiating table attempting, with the other Anglo-Saxon nations whose colonising ancestors annihilated or assimilated indigenous peoples who stood in the way of the foreign settlement of their lands, to minimise the effects of UNDRIP.

Canada’s immediate response to the Declaration was, according to Chuck Strahl, then Minister of Indian Affairs, that it was ‘unworkable in a Western Democracy under a constitutional government’. He went on to explain: ‘In Canada you are balancing individual rights versus collective rights. By signing, you default to this document by saying that the only rights in play here are the rights of First Nations. And of course, in Canada, that’s inconsistent with our constitution. In Canada, you negotiate on this because Native rights don’t trump all other rights.’27

What Chuck Strahl appears to ignore is that the Declaration concerns the recognition of existing prior rights, which governments have hitherto ignored with impunity. His reference to negotiation demonstrates the determination of the federal and provincial governments to continue to hold all the cards, particularly in light of Article 19 which requires governments to secure the consent of their indigenous peoples to matters of public policy, and Articles 26 and 27 which appear to allow the reopening of apparently settled land claims. By contrast, the Nordic democracies, which have strong indigenous populations represented by indigenous parliaments, signed up immediately to the Declaration. Of the four nations who initially refused to endorse the United Nations Declaration, Australia and New Zealand did tardily accept their responsibilities. President Obama signified his willingness to consider endorsement by the United States.

The Canadian government endorsed the Declaration on 23 November 2010, within a week after the delivery of the final judgment in Little Salmon/Carmacks discussed above. UNDRIP has the potential to put relations between aboriginal and non-aboriginal Canada on a basis which would enable the parties to proceed on a more equitable footing to resolve the difficulties besetting this troubled relationship. Endorsement is a significant concession, but it remains to be seen how fully, if at all, the Declaration will be implemented or supported in the Canadian courts. On 3 March 2010 in the Speech from the Throne, it was announced that Canada will ‘take steps to endorse this aspirational document in a manner fully consistent with Canada’s constitution and laws’,28 words which were used at the time of endorsement. To settler Canadians this may be an ‘aspirational document’, but to indigenous peoples across the world it represents what is due to them. During the drafting of the Declaration, Canada diluted UNDRIP’s power by amending the wording of Article 21 with the addition of the words ‘where appropriate’, so that the obligation on the part of the state to ensure continuing improvement of the economic and social conditions of indigenous peoples remained under the control of national governments. In any event, interpretations of the Declaration’s provisions are the remit of individual nation states. And in Canada, as yet there appears to be no real commitment to repeal the Indian Act or to adopt the recommendations of the Royal Commission on Aboriginal Peoples (RCAP).

Article 19 of the Declaration provides that: ‘States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them,’ hence the indigenous calls for negotiation to be based on FPIC.

Free, prior and informed consent is a standard taken from the law on fiduciaries and, as we shall see when we consider the duties of lawyers and consultants below, has been well defined through the common law case system. So far as it applies to indigenous peoples, Adem Kassie Abebe points out that: ‘States should refrain from implanting new, all-embracing modes of decision-making. Consultations should be culturally appropriate, recognising indigenous peoples’ own traditional decision-making processes.’29

Article 19, together with Articles 25–27, has the potential to reform the entire land claims negotiation process and to give the Innu greater equality of bargaining power. Article 25 recognises and upholds ‘the[ir] distinctive spiritual relationship with their traditionally owned … lands’, a relationship effectively denied by Deschamps J. More significantly, it upholds their responsibilities to future generations. In endorsing UNDRIP, Canada reaffirms its existing responsibilities.

Article 26 recognises that indigenous ownership of lands and territories includes ownership of resources now being targeted by the extractive industries, and provides that states must recognise and protect these rights.

Article 27 of UNDRIP provides that: ‘States shall establish and implement, in conjunction with indigenous people, a fair, independent, impartial, open and transparent process …’

Article 8 (b) of the United Nations Declaration on the Rights of Indigenous Peoples says: ‘States shall provide effective mechanisms for prevention of, and redress for … any action which has the aim or effect of dispossessing them of their lands, territories or resources,’ and Article 10 stipulates: ‘Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.’

In Canada, the whole negotiation process is undermined by the dominance of Canadian culture – in that the Band Councils which are the basis of the indigenous representation and decision-making process are actually a Canadian construct. Elders I spoke to pointed out that this was not the way in which the Innu chose their leaders according to their own tradition, which was much more consensual and involved the elders to a greater extent. Under Article 18 of UNDRIP, indigenous peoples have the right ‘to participate in decision-making in matters which would affect their rights through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions’.

As the case for recognition of indigenous land rights, and other rights, in Canada is given yet greater public airing through the work of the Truth and Reconciliation Commission (TRC) and through UNDRIP, Canadian governments should also bear in mind Article 40 of the Declaration: ‘Indigenous peoples have the right to access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual or collective rights. Such a decision shall give due consideration to the customs, traditions, rules and legal systems of the indigenous peoples concerned and international human rights.’

As we move on to consider the government’s conduct of modern treaty negotiations and settlements, we shall see how far short Canada is falling in this respect.

In the minds of the Canadian judiciary, there appears to be some confusion over the true meaning of the term ‘reconciliation’. The Final Report of the TRC, in its Call to Action 52 (ii) demands that: ‘Once Aboriginal title has been established, the burden of proving any limitation on any rights arising from the existence of that title shifts to the party asserting such a limitation.’30

The Report approves dicta of RCAP spelling out that the restoration of civic trust is essential to reconciliation and goes on to say that, in order to forge peaceful relations, as the party who breached the trust, Canada has the ‘primary obligation’ to do the work needed to gain the trust of the aboriginal peoples. The TRC was set up in order to begin the process of forging a new relationship.

By contrast, the judiciary appears to have limited its task of reconciliation to the need to reconcile the purported title of the Crown in Right of Canada with the prior title of indigenous peoples to their ancestral lands in what is now Canada. Unless and until this confusion is resolved, decisions of the Supreme Court will continue to fall short of implementing the honour of the Crown. Speaking of the meaning of reconciliation to the TRC, Elder Fred Kelly told its members:

Where government refuses to implement Aboriginal rights and the original spirit and intent of the treaties, the citizens of Canada must take direct action to forcefully persuade its leadership. Treaty making and memoranda of agreement are simply the stage-setting mechanisms for reconciliation. There must be action … [A]ll Canadians have treaty rights … It is upon these rights and obligations that our relationship is founded.31

In almost every case since Guerin v R, the judiciary has paid lip service to the fiduciary duty and to the concept of the honour of the Crown but has never confronted the magnitude of the debt that the breach has created. It would seem that the ‘honour of the Crown’ rests on something less than observance of a duty of the utmost good faith. As Rotman points out: ‘It is arguable that the Crown’s obligations have become even more stringent as a result of the ascent of the Crown in the political and economic structure of Canada at the expense of the aboriginal peoples and in direct contravention of its fiduciary duty to them.’32

However, by contrast, as we shall see in the following chapters the Crown in Right of Canada has become increasingly able to disregard those duties with impunity.

When the present Liberal government was elected, Justin Trudeau was quick to prioritise his government’s relationship with indigenous peoples. On 14 February 2018, Trudeau announced to parliament his government’s intention to introduce a new legal framework to recognise and implement indigenous rights.33 The announcement was short on detail but Trudeau cited a consultation process with Canada’s original peoples which would lead to legislation before the next general election. Following town hall meetings across Canada, he announced an end to the colonial approach to indigenous relations and the implementation of the rights of indigenous peoples: ‘Reforms are needed to ensure that among other things Indigenous peoples might once again have confidence in a system that has failed them all too often in the past.’

He noted that it was 35 years since his father’s government had introduced section 35 of the Constitution Act, something which that government only agreed to after ‘outspoken advocacy’ by the indigenous peoples: ‘Now imagine the mounting disappointment, the all too unsurprising and familiar heartache and the rising tide of anger when governments that had promised so much did so little to keep their word. You see, Mr Speaker, the challenge then as now is that while section 35 recognizes and affirms aboriginal and treaty rights, those rights have not been implemented by our governments.’

Perhaps this initiative was prompted by the decision in Tsilhqot’in, because one of the reasons Trudeau gave for this new initiative was that failure to recognise indigenous rights led to many lengthy court cases, trending towards full recognition and definition of these rights. Timely legislation on federal terms could enable the governments to retain some control over the process, including the retention of the justifications on public policy grounds upheld by Delgamuukw v British Columbia. Nevertheless, Trudeau acknowledged that, through Bill-C262, his government was committed to full implementation of UNDRIP without qualification:

We signed agreements with First Nations, Inuit and the Metis Nation outlining how we will work together to identify each community’s distinct priorities and how we will work together to develop solutions. We established a working group of Ministers to review our federal laws, policies and operational practices to ensure the Crown is meeting its constitutional obligations and adhering to international human rights standards including the UN Declaration on the Rights of Indigenous Peoples.34

This, he said, was just a start. What he was proposing was a programme for the next 150 years and beyond and the foundation for this must be recognition and implementation of indigenous rights. And so he announced that his government would develop a full partnership with First Nations, Inuit and Metis to develop a legislative framework for this purpose based on national consultation. He acknowledged that a solution coming from Ottawa alone would not achieve very much. In future all government legislation would be based on the results of this consultation and framework. The framework would introduce mechanisms to enable the recognition of indigenous self-government and ‘ensure full and meaningful implementation of treaties and other agreements’. It would develop ways to rebuild native communities and introduce new dispute resolution mechanisms. Trudeau reassured parliament that this would not entail amendment of the Constitution Act, even though it was intended to replace policies like the Comprehensive Land Claims Policy. These sweeping changes, he announced, would be implemented with a few months’ consultation and legislation in place by 2019.

Now that Bill C-15 is proceeding through parliament, it is hoped this will be possible in light of the existing recommendations contained in the RCAP Report and the Truth and Reconciliation Commission (TRC) Report. Justice Minister Jody Wilson-Raybould, a former Assembly of First Nations regional chief, was quick to voice her support: ‘What our Prime Minister is doing is ensuring that Section 35 is a full box of rights to be filled up by First Nations, Metis and Inuit across the country.’35

This may well be Trudeau’s intention, but what will happen when the proposed legislation comes up against the all-too-powerful resource extraction industry lobby in a world where corporations control budgets big enough to sink any such initiative?

Indigenous leaders and politicians remain sceptical that any legislation will come into effect. Romeo Saganash, a Cree New Democratic Party MP who introduced Bill C-262, a private member’s bill to adopt UNDRIP, commented: ‘While I appreciate the prime minister’s words today, we need to make sure that this time it is for real. One of the most unacceptable things politicians can do is quash the hope of the most vulnerable in our society. We’ve faced 150 years of broken promises. Guess what? We will not let that happen again for the next 150 years.’36

Georges Erasmus, one of the RCAP commissioners, pointed out that Trudeau makes no reference to indigenous land: ‘I didn’t hear him say, you know, that Aboriginal people need a significant land base in this country in order to do what they need to do. It’s much tougher for him to do because land obviously is controlled by the provinces … [but] there’s lots of places in Canada where we need to open up the whole concept of land equity for First Nations.’37

Erasmus also questioned Trudeau’s commitment to free and prior and informed consent.

Grand Chief Arlen Dumas of the Assembly of Manitoba Chiefs wrote: ‘We need a government that will not impose any more of their ideas, but will support First Nations to direct our own futures. We must ensure that our rights are protected from further erosion in any in any process going forward.’38

Noting that the Trudeau government had had two years in which to act upon its commitment to implement the findings of the TRC and UNDRIP, Grand Chief Sheila North added: ‘Asking First Nations to commit to working with Canada is not an action plan. Decision-making is key, commitment is key, and the word “partnership” – it must be a real partnership.’39

Russell Diabo fears that the government wants to ‘weaponize’ recognition of indigenous rights and control the content of those rights.40 Elsewhere he describes Justin Trudeau’s initiatives as ‘a top-down, non-transparent approach to federal Indigenous policy’ designed to ‘modify, convert and extinguish the inherent sovereignty of First Nations’.41 He believes that the new policy will be implemented through individual agreements which will nullify the inherent right to self-government. He points out that ‘… the modern high-profile conflicts between First Nations and Crown governments were led by grassroots Indigenous peoples, and not Indian Act band councils: Oka, Ipperwash, Gustafsen Lake, Burnt Church, Grassy Narrows, Caledonia and Elsipogtog.’

The protest movement Idle No More took time to respond to Trudeau’s announcement. On 7 September 2018, they issued a reply to the government’s Statement on Recognition & Implementation of the Inherent & Treaty Rights of Indigenous Peoples Framework Legislation. In the background information issued with their statement, Idle No More say:

In order to re-colonize First Nations into assimilated ‘Indigenous Canadians’, the Trudeau government has unilaterally imposed 10 Principles on Indigenous Relationships and started to dissolve the Department of Indian Affairs. Trudeau has imposed two new federal departments over First Nations to implement a new law and policy Framework … The Framework is a collection of federally imposed law and policy designed to terminate our pre-existing sovereignty and collective rights as Indigenous Nations and get us to surrender to Crown sovereignty as ethnic minorities, also known as Indigenous Canadians NOT as Indigenous Nations.

In the statement itself they call out the government for promising self-determination when it intends only self-government with limited powers. Pointing out that the indigenous nations have had no say on what has gone into the Framework, they say they must hold out for a relationship based on free, prior and informed consent and give the following call to action: ‘This federal legislation must be stopped and a new process started that is based upon our original instructions from the Creator; our pre-existing sovereignty; our Aboriginal Title; our historic Treaties; our internationally recognized right to self-determination; and the restoration of our stolen lands, territories and resources, or restitution for lands, territories and resources not returned!’

On 3 December 2020, Bill C-15, The United Nations Declaration on the Rights of Indigenous Peoples Act (known as CANDRIP) was introduced in the Canadian House of Commons by the Minister of Justice and Attorney General of Canada. It is now undergoing its second reading, and will then be scrutinised at the committee stage before returning to the House of Commons for its third reading and then receiving Royal Assent. Under Bill C-15, in consultation and co-operation with indigenous peoples, the federal government must take the steps to ensure that Canadian law is consistent with UNDRIP, implement an action plan and prepare an annual report on its implementation.

One of the main stumbling blocks to full implementation is Article 19 of UNDRIP stipulating that free and prior informed consent is the standard by which governments should deal with decision-making with regard to indigenous land and interests. Yet in a backgrounder, the Government of Canada maintains that ‘If passed, this legislation would not change Canada’s existing duty to consult indigenous groups, or other consultation and participation requirements set out in other legislation like the new Impact Assessment Act [2019]. What it would do is inform how the Government approaches the implementation of its legal duties going forward. Additionally, it would do so in a way that provides greater certainty over time for Indigenous groups and all Canadians.’42 If, as this statement suggests, governments intend to continue in their bad old ways, litigation is sure to follow. In British Columbia, where a similar Act has been in force since 2019, BC government communications are full of phrases such as ‘in the interests of reconciliation’ but it is apparent that the intention is that matters should be conducted in much the same way as before the law was changed. The way in which UNDRIP, or some diluted form of it, across Canada, remains firmly in the hands of the federal governments whose responsibility implementation is. As writer and activist Ken Coates puts it:

We’re now seeing across the country where communities, municipal governments are saying ‘Let’s take UNDRIP as an organizing principle.’ But in both cases the challenge has, I think, been a simple one – how do you take these really good, broad principles with which almost everybody can agree and change them for immediate action?

We start seeing pushback. People say, ‘well you know we didn’t really mean that, we never really wanted to go that far’, and so what we actually have now is a country where the public conversation is very much informed by truth and reconciliation, at this point to a lesser degree by UNDRIP … where Canadians are wrestling with this question of how do we get rid of hundreds of years of discrimination and brutal treatment of indigenous peoples.

Until we actually do something about it on a practical level, then we’re just making ourselves feel good about what UNDRIP represents and truth and reconciliation. So our challenge is to actually make this stuff real and we’re not doing as well with that as we should.’43

A First Nations speaker reminded us that ‘consent is the best form of certainty that anybody could ask for. When you start looking at development costs that go into the millions and tens of millions, hundreds of millions, or billions of dollars, certainty is absolutely essential if you want to do that.’44