Aboriginal Law

This article is about judicial reasoning in the assessment of evidence, and more precisely about judicial reasoning with respect to gauging the weight of oral history and oral tradition evidence presented by Aboriginal peoples in cases involving Aboriginal and treaty rights claims. Their study of the cases leads the authors to observe that such evidence, once found admissible, is either given excessive or insufficient weight, or is ignored. They also conclude that judicial reasoning in the assessment of proceeds from three different logics : (1) systematic; (2) reconciliatory; and (3) empathic. The article explains these logics and thus sheds new light on the complexity of the act of judging in cases involving rights recognized under section 35 of the Constitution Act, 1982. This study shows that the evaluation of evidence in Aboriginal litigation is still substantially experimental and validates the Supreme Court’s assertion that the resolution of Aboriginal claims takes the law, and thus judges, into the often unchartered waters of history, legends, politics and moral obligations.
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Cet article porte sur la rationalité judiciaire dans l’appréciation de la preuve, et plus précisément sur la manière par laquelle s’opère la réflexion judiciaire dans l’évaluation de la valeur probante de la preuve sous la forme de récits oraux dans le contentieux relatif aux droits des peuples autochtones. À la lecture de la jurisprudence pertinente, on note qu’une fois admis en preuve, les récits oraux sont tantôt surévalués, tantôt sous-évalués, voire même ignorés, lors de la détermination des faits par le juge. Ces courants jurisprudentiels nous amènent à conclure que la rationalité judiciaire dans l’appréciation de la preuve sous la forme de récits oraux se déploie selon trois logiques : (1) la logique systématique, (2) la logique réconciliatrice et (3) la logique empathique. La découverte de ce triptyque de la rationalité judiciaire dans l’appréciation de la preuve sous la forme de récits oraux nous permet d’apporter un nouvel éclairage sur la complexité de l’acte de juger dans le cadre de litiges mettant en jeu un droit visé par le paragraphe 35(1) de la Loi constitutionnelle de 1982. Cette analyse jette la lumière sur le fait que la démarche d’appréciation de la preuve dans le contentieux relatif aux droits des peuples autochtones est encore largement expérimentale et vient valider empiriquement l’assertion de la Cour suprême du Canada selon laquelle la résolution des revendications autochtones entraîne le droit, et donc le juge, dans les univers mal balisés de l’histoire, des légendes, de la politique et des obligations morales.

This is a reimagination of the Tsilhqot'in decision of the Supreme Court of Canada, in the form of a a decision of the hypothetical Indigenous Nations Court, on appeal from the Supreme Court of Canada.
Held: Appeal allowed. The Court orders 1. A declaration of Indigenous title over the same area to which the Supreme Court’s declaration of Aboriginal title applied. 2. The Tŝilhqot’in Nation may exercise jurisdiction over their Indigenous title lands subject to the
constraints set out in these reasons. 3. The Tŝilhqot’in Nation may bring an action to seek recognition of additional territories in accordance with evidentiary requirements described in these reasons. 4. The parties have a duty to negotiate a treaty and to consult before taking actions that will affect significant interests of the Crown or the Tŝilhqot’in Nation, as the case may be. 5. While negotiations are in progress, Crown laws not in conflict with Tŝilhqot’in laws will remain in effect. Crown laws conflicting with Tŝilhqot’in laws must pass the infringement test set out in these reasons. 6. The parties should agree to interim and co-operative arrangements to serve until the terms of a treaty are negotiated. Courts may entertain applications for ancillary relief reasonably necessary to ensure the jurisdiction of sovereign parties is respected while treaty negotiations are in progress. 7. The Crown has a duty to take reasonable steps to ameliorate the existing inequality in bargaining power.
8. Either party may apply for relief if it believes the other is not complying with the duty to negotiate or is otherwise not proceeding in a manner consistent with these reasons.

Co-production is an emerging source of information about the world, but it is one that has not been adequately theorized in the legal literature. Because co-production contains aspects of both novel science and oral history, it is not clear how it can be admitted. I argue that co-produced information does not clearly fit into either of the admissibility frameworks. With respect to the novel science framework, co-produced information fits into the criteria of testability, peer review, and standards with only a few problems, but would likely fail the general acceptance criterion of the test. However, if scientists are educated about co-production, or if it is possible to delineate a group of scientists who are more likely to accept co-production as the "relevant group," then it may be possible for co-production to be admitted as evidence through the novel science framework. Turning to the oral history framework, co-produced information is less likely to be admitted because oral history is only a part, and not a necessary part, of co-produced information. As such, courts will likely be reluctant to bend the rules of evidence to admit it. Further research is needed to determine whether co-produced information can be admitted under the novel science framework.

The adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) has catalyzed Indigenous rights conversations in Canada around Free, Prior and Informed Consent (FPIC). The Yukon territory, where a majority of First Nations have self- government and settled land claims, provides a unique case for assessing how FPIC is being defined and exercised in light of possible mine developments. Findings from semi-structured interviews and document review revealed limited explicit engagement with FPIC by key Yukon governance institutions. This thesis serves to identify and make sense of this situation in an exploratory way, offering three factors: time, treaty implementation priorities, and awaited federal action, to explain the apparent lack of institutional engagement with FPIC. Despite instances of consent-like rights held by First Nations in the Yukon, there remains a lack of clear articulation from a majority of these First Nations about expectations for the meaningful expression of consent. Through a case study with the Little Salmon Carmacks First Nation (LSCFN), this research revealed that although LSCFN’s expectations of FPIC are not fully formed as of yet, they include: early and ongoing engagement, full and accessible information, internal engagement and governance processes, the mitigation of resource barriers, enforceable commitments, contextually relevant and mutually agreed upon processes, appropriate representation, agreed upon definitions, and the mitigation of power imbalances. Given the reticence of the State to acknowledge and implement FPIC this thesis also evaluates the treatment of FPIC by the Initiative for Responsible Mining Assurance (IRMA) standard, and largely confirms the comprehensiveness of that novel governance process relative to LSCFN’s emerging expectations around FPIC.

According to the Supreme Court of Canada, Aboriginal title is a property right, albeit of a distinctive kind. Most significantly, the right is subject to an inherent limit: title lands cannot be used in a way that deprives present and future generations of the right to use the land. Aboriginal title is also encumbered by a restraint on alienation, and has its source in Aboriginal legal systems that predate and survive the assertion of Crown sovereignty. In this paper, we argue that these features of Aboriginal title are not burdensome judicial innovations on a property right, but are instead the essential contours of a sovereign right. That is, the Court’s own description of Aboriginal title does not comport with sound theoretical understandings of a property right. Aboriginal title is much more akin to a right of sovereignty—the right to make laws about the use of a territory. Aboriginal title is the right of law-making jurisdiction over the title lands. The existing literature, while edging towards the view that Aboriginal title is a sovereign right, has lacked the unifying theoretical basis needed to decisively dispatch the Court’s property paradigm. In particular, all extant accounts find the inherent limit inexplicable. The account in this article theorizes and explains the inherent limit, as well as all of the sui generis elements of Aboriginal title, and shows their interconnectedness. Our view additionally answers a number of questions that the Court’s property paradigm does not, including: (1) what laws primarily govern title lands; (2) who has standing to question whether any particular use of title land violates the inherent limit; (3) what is the status of private land interests that overlap with Aboriginal title lands; and (4) how should the doctrine of Aboriginal title be updated in light of jurisprudential developments emphasizing that Indigenous peoples never ceded their sovereignty?

The project of reconciliation, heralded by the inclusion of section 35 in the Constitution Act, 1982, has made important strides as Canadian courts have expanded and elaborated the rights of Aboriginal peoples and the duties of the Crown. One of the key contributions to the s. 35 jurisprudence came with the Supreme Court of Canada’s development of the duty to consult in Haida in 2004. Haida was subsequently reaffirmed and expanded in the 2010 decision, Rio Tinto. However, since 2010, as First Nations groups continue to assert their rights, both superior and appellate courts have faced novel and uncontemplated invocations of the duty. The outcome of numerous appellate level decisions has seen both confusion and conflation of the Supreme Court’s jurisprudence in Haida and Rio Tinto. This has resulted in competing, and contradictory developments of the case law that jointly and paradoxically have the effect of diminishing the Crown’s duty to engage in consultation altogether. This paper principally examines two appellate level decisions, Neskonlith at the BC Court of Appeal, and Clyde River at the Federal Court of Appeal, in order to expose emerging problems in the duty to consult jurisprudence and to highlight the problem of the Crown’s withdrawal from what is, at its core, a quintessentially political process.

This draft version of the paper is currently under review at the U.B.C. Law Review.

RÉSUMÉ

Le qualificatif est galvaudé, mais l’arrêt de la Cour suprême du Canada dans l’affaire Nation Tsilhqot’in c Colombie-Britannique est véritablement « historique ». Il représente la première reconnaissance judiciaire, concrète, formelle et définitive d’un titre constitutionnel autochtone ancestral dans l’histoire du droit canadien. Il dissipe les principaux doutes sur la crédibilité du contrôle judiciaire des droits constitutionnels que la partie II de la Loi constitutionnelle de 1982 garantit aux peuples autochtones. Or, au-delà de quelques précisions utiles, sa motivation est sérieusement problématique, et ce, à maints égards. Relativement aux droits constitutionnels des peuples autochtones, la plupart des erreurs de la Cour proviennent de la manière dont, sur nombre de questions fondamentales, elle se fonde principalement sur l’arrêt Guerin. À l’égard du droit relatif à la résolution des conflits de compétences attribuées au sein de la fédération, les nombreuses erreurs, conceptuelles notamment, que consignent les motifs de la juge en chef sont symptomatiques de problèmes encore plus profonds.

Mots clés : Titre aborigène, droits ancestraux, obligation de consultation, obligation de fiduciaire, honneur de la Couronne, partage des compétences

ABSTRACT

The word is overused, but the Supreme Court of Canada’s decision in Tsilhqot’in Nation v British Columbia well and truly deserves to be qualified as “historic.” For the first time in the history of Canadian law, a court has recognized, concretely, formally, and definitively, a constitutional ancestral aboriginal title. This decision puts to rest the main doubts regarding the credibility of judicial enforcement of the constitutional rights which Part II of the Constitution Act, 1982 guarantees to Aboriginal peoples. However, although they contain some useful clarifications, the Supreme Court’s reasons are deeply flawed in many respects. Regarding the constitutional rights of Aboriginal peoples, the most of the Court’s errors result from the way in which it mainly relies on the Guerin decision. As for the division of powers issues, the multiple errors, especially the conceptual ones, in the Chief Justice’s reasons are symptoms of even deeper problems.

Key words: Aboriginal title, aboriginal rights, duty to consult, fiduciary duty, honour of the Crown, division of powers

This research paper began as a broad research question that sought to investigate the intersection of Métis identity, citizenship criteria and implementation of An Act respecting First Nations, Inuit and Métis children, youth and families S.C. 2019 (the FNIM Act) . At the time of research and writing, the Métis Nation of Saskatchewan officially indicated, through the mandate of their cabinet ministers, that they intended to assert jurisdiction over child and family services through the FNIM Act.  This research was meant to be forward looking and grounded in practical policy considerations the Métis Nation of Saskatchewan should consider. 
The Métis Nation of Saskatchewan should adopt an Indigenous feminist perspective, which is rooted in kinship and matriarchal power as it begins the process of asserting jurisdiction over child and family services. Reconceptualization of Métis identity from rematriation lens could help create a more inclusive and just child and family services legislation.

In Uncertain Accommodation: Aboriginal Identity and Group Rights in the Supreme Court of Canada, Dimitrios Panagos aims to explain the origins of our present predicament, in which courts are increasingly the site for conflicts regarding the appropriate scope of Aboriginal rights. His goal, in his words, is to “examine where the proverbial train went off the rails… and how to get it back on track” (7). In just 165 pages, he explains how identity came to be the metric of Aboriginal rights in Canada, and the problems this has produced. Instead of asking, “What is it, exactly, that they want?” Panagos reverses the question to ask why Canadians — our governments and courts — have been unable to agree on what Aboriginal rights should entail.

This thesis seeks to intervene in debates over the distribution of land and other resources in postcolonial societies by offering a theoretical framework within which to conceptualise, analyse and critique distribution agreements, such as the one represented in the Nisga’a Final Agreement—the main context that informs this work.  In particular, it argues that scholars who have sought to interrogate these important new developments often do so from within a framework influenced by liberal legal ideology or various post-structuralist perspectives.  Although very different in terms of theoretical orientation, these perspectives lead, I argue, to the inevitable conclusion that post-colonial nations are fundamentally unable to effect any significant change in the practice of sovereign assertion because they do not and cannot, within the current dispensation, hold the monopoly of violence.  I suggest here that the dominant view, that positions post-colonial communities as lacking political agency and sovereign virtue, is largely due to the fact that these scholars, although immersed in a post-colonial context, seldom deploy post-colonial theory as a means to explicate what I argue is a rapidly altering relationship between post-colonial communities and established governments.  The thesis examines the land, rights, and constitutional provisions in the Nisga’a Final Agreement in an attempt to demonstrate that it is through a post-colonial lens that the theory of land and resource distribution, in so far as it attempts to explain developments in the Nisga’a Nation, can begin to reflect the reality of such distributions as they affect the lives of post-colonial nations reshape the economic, social and political contexts in which they are embedded.