Feb. 14, 2020

Understanding what is happening on Aboriginal disputes

Given recent events this of some importance to understand what is happening now 
Here is my blog (peckford42.wordpress.com) entry for June 15, 2015 on Aboriginal Title as a Result of a Supreme Court Of Canada decision of June 2014.
In an earlier post I have referred to the Supreme Court decision of June, 2014 in which the court granted title to land to an aboriginal group.
This the first time in our history such an action has been taken . Hence is is an very important decision
I wrote my reaction to the decision. I post it here for your information.
 "Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver, to all intents and purposes, and not the person who first wrote or spoke them.' Bishop Hoadly (1676-1761), English Bishop
On June 26, 2014 the Supreme Court of Canada, in a unanimous ruling, granted aboriginal title to the Tsilhqot’in Nation concerning a piece of territory in central BC.
This was the first time in the country's constitutional history that title was granted to an aboriginal group. Hence this is a monumental decision and breaks new ground in interpreting the place of aboriginal people in this country.
Over the years many treaties had been signed with Aboriginal people concerning their rights over land . And they remain in effect.
But there were also many Aboriginal Groups who did not sign treaties, especially in BC, although similar conditions in other parts of Canada exist. Hence, this decision concerning a BC Aboriginal group.
 The Constitutional Act of 1867 refers to aboriginal people through identifying powers to
the Federal Government : one such power is jurisdiction over :
Indians, and Lands reserved for the Indians
This is the only reference . Based on this the Federal Government proceeded with the Indian Act and related legislation leading to reserves etc.
No further constitutional change relating to aboriginal people was made until 1982 with the
Constitutional Act 1982. Part II of that Act said this:
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
Definition of “aboriginal peoples of Canada”
(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.
(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons. (96)
This introduced a whole new chapter in Aboriginal matters, defining specifically who were aboriginal and introducing the recognition of treaty rights and rights that ' May be so acquired'.
It should be noted that The Royal Proclamation of 1763 referred to Indians and that land must be reserved for them and could not be taken from them. Reference is made to hunting territory. Some have referred to this as important recognition of rights of aboriginal people and is often quoted. A 1973 Calder Court decision is also important affirming Aboriginal rights to land coming as it did before the 1982 Constitution Act.
This era
 It was left to the Courts to interpret Section 35 of the 1982 Act. And quickly court cases were begun to get clarification on what the section meant; lawyers for the Aboriginal people sensing that this was a major change in Aboriginal matters. So, in the last 30 years various Judgments interpreted and gave meaning to Aboriginal rights using Section 35.
For me, it is important to note that both the 1867 and 1982 Acts spoke of rights. No mention of title.
It became clear in the various SCC judgments that the court seemed eager to use a liberal interpretation of section 35 reflected in cases such a Guerin, Sparrow, Van Der Peet , Degamuukw and others.
Viewing these judgments, involving, as they did, expansion of the meaning of Section 35 it could be concluded that the issue of title of aboriginal people in addition to rights was to be soon on the Court table. This was foreshadowed by the Guerin decision, for example, in 1984, a scant two years after the new Constitution Act, confirmed the potential for Aboriginal Title on ancestral lands.
And so we have this decision
 From 1982 to now what has transpired ( as a result of the cases mentioned) is that a Government or company wishing to engage in resource development on land that is claimed by an aboriginal group had to consult meaningfully with the group and to accommodate the interests of the group. If this was done in a genuine way it was likely that the development could proceed , even if the group disagreed . Under such disagreement , the Government or company could refer that to what they agreed to the courts and , if as I say , there was real evidence of consultation from the start and agreements for accommodation i.e. training jobs etc. it was likely that approval from the courts would be forthcoming. A long process. But it was consulting and accommodating.
With this decision Governments and companies must seek consent from the the group if they have title to the land . Title is held by the group or first nation:
The court says
 [73]'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.'
If the Aboriginal Group refuse consent , the Government or Company must then apply for this decision to be overridden, I assume from the court, by using a test involving the court says:
[76] 'The right to control the land conferred by Aboriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders. If the Aboriginal group does not consent to the use, the government’s only recourse is to establish that the proposed incursion on the land is justified under Section 35 o f the Constitution Act, 1982.'
Justification of Infringement
 [77] To justify overriding the Aboriginal title-holding group’s wishes on the basis of the broader public good, the government must show:
(1) that it discharged its procedural duty to consult and accommodate,
(2) that its actions were backed by a compelling and substantial objective; and
(3) that the governmental action is consistent with the Crown’s fiduciary obligation to the group:Sparrow.'
The Court in addressing incursion/infringement on titled land (Point 83) does refer to agriculture , forestry , mining and like economic development being possible . However, in dealing with the Crown’s fiduciary duty the court's description in points 85, 86, 87 of explaining the Crown's obligation sets a high bar indeed for such approvals, I would maintain.
 There is no question that Aboriginal Groups who feel that they can prove title are emboldened by this decision and that inherent in this decision there remains many questions that need answers. The Appeal Court of the BC Supreme Court took a stricter approach to title ruling that the land subject to title must be specific and intensively used . The Trial Division of the BC Supreme Court took a much more flexible approach and that is the one the SCC supported in their decision. 
' Regular use of the territory suffices to establish sufficiency; the concept is not confined to continuously occupied village sites. The question must be approached from the perspective of the Aboriginal group as well as the common law, bearing in mind the customs of the people and the nature of the land.'
' In determining what constitutes sufficient occupation, one looks to the Aboriginal culture and practices, and compares them in a culturally sensitive way with what was required at common law to establish title on the basis of occupation. 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.'
This decision with its consent provisions and additional ambiguous tests in addition to consultation and accommodation will slow resource development in the Province and likely deter many who otherwise would invest in resource development.
'People have been taught to believe , that when the Supreme Court speaks it is not they who speak but the Constitution , whereas , of course, in so many vita cases , it is they who speak and not the Constitution.' Contained in a letter from US Justice Felix Frankfurter to President Franklin D. Roosevelt
Throughout , one gets the the overriding sense that the court wished to take a very flexible approach consistent with the earlier decisions since Section 35 ; one, where interpretations favorable to the Aboriginal people would take precedence . This is seen by the use of words like' hundreds of claims,' ( second sentence of judgment) , broad interpretation of occupation with broad difficult to define cultural parameters, point 36, broad definition of continuity in point 46 and in the definition of exclusivity, point 48. A careful reading of Section 35 and then the reading of the various judgments based upon it, including this one, demonstrates, in my opinion, a very broad interpretation of the Section 35 , beyond what many involved at the time viewed possible, and that if such matters were to be so decided it would be done by the elected representatives of the people.
It is troubling , then , that in further title applications using this decision , as must be the case , there is the real possibility for many successful claims of title involving time and money and complication; and in the refinement of this decision on issues dealing with an appeal where consent is with held , it is likely that definitions of 'compelling, and 'substantial 'and 'fiduciary obligation' will be adjudicated in a manner that will be more onerous on the applicant.