A reconciliation project

This is the first of two or more posts on free, prior and informed consent. This is more or less a response to this article, “Experts doubt First Nations could stop Keytsone XL pipeline”, found, for example, here:

I was shocked to read this article, which implies that development in Canada is an all or nothing proposition. While this may sometimes be the case, I’d suggest there are very few absolutes in aboriginal rights law – for better or worse, the law seems to be more about encouraging a respectful and fair dialogue. What’s shocking; however, is the suggestion from aboriginal law experts that any kind of development can proceed, even if it violates aboriginal rights.

Some of the quotes of these experts (and let’s be clear these are bona fide experts in aboriginal law), include:

"This notion of free, prior consent has no legal basis in Canada – none. Zip," said Vancouver lawyer Thomas Isaac, a former B.C. government chief treaty negotiator who has acted in the past for Enbridge. "That’s not to say that people ought not to seek consent. That’s a different question. But is there a basis in law? Not a shred," Isaac said.

But the declaration is not a treaty, said Nigel Bankes, chair of natural resources law at the University of Calgary’s law faculty.

"I think most people would say that part of the declaration is aspirational in nature rather than customary law."

Let’s set aside the discussion of the United Nations Declaration on the Rights of Indigenous Peoples and the questions of whether the concept of free, prior and informed consent is customary international law (and what FPIC means in international law) and further, whether and how customary international law would be applied in a Canadian court.

Let’s just stick with the domestic law. Is there really no legal basis for consent under Canadian law? Or, more accurately, is there at least “a shred” of a basis for consent in Canadian law?

Of course there is! Let’s start with this quote from the Delgamuukw case (http://canlii.ca/t/1fqz8), helpfully cited in the article:
The Supreme Court of Canada’s landmark 1997 Delgamuukw decision specifically spells out the government’s right to "infringe" on aboriginal title.

"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 this purpose and, in principle, can justify the infringement of aboriginal title," the decision said

This excerpt is related to the concepts of infringement and justification. The court is letting us know that Aboriginal title can be infringed if the government can meet a rigorous justification test, just like any other aboriginal or treaty right. While aboriginal rights cannot be abrogated or derogated, they can be ‘infringed’. This is important because if government could not infringe rights, then it would be incapable of taking legislative, regulatory or even administrative action if a First Nation objects.

The test for infringement was set out in one of the earliest aboriginal rights cases, a case called Sparrow (http://canlii.ca/t/1fsvj). But this does not mean that government gets a blank check to simply name an action ‘infringement’ and proceed to render an aboriginal right meaningless. Quite the opposite. Consider this language from Sparrow, “We acknowledge the fact that the justificatory standard to be met may place a heavy burden on the Crown.”

I’ll spare a lengthy discussion of the justification standard defined in Sparrow to focus on only one aspect – the requirement of government to produce a valid objective for its action.

Keep in mind that Sparrow involved regulations to conserve environmental resources used by First Nations and by others, not to construct a pipeline for the benefit of corporate and foreign interests, each with very little stake in preservation of key environmental resources. If you think I’m going overboard on the environmental nature of infringement, consider what the Sparrow court said about the types of reasons, or objectives, the government could put forward to infringe aboriginal rights:

An objective aimed at preserving s. 35(1) rights by conserving and managing a natural resource, for example, would be valid. Also valid would be objectives purporting to prevent the exercise of s. 35(1) rights that would cause harm to the general populace or to aboriginal peoples themselves, or other objectives found to be compelling and substantial.

Given the tone and tenor of this paragraph, I get the impression that the Sparrow court didn’t intend the “other objectives found to be compelling and substantial” to be a broad category. In fact, it appears the court is specifying that compelling objectives are those which benefit First Nations, as well as non-natives (in fact, one could argue, quite aggressively, that compelling objectives are only those which preserve the subject matter of the aboriginal right – say actions to preserve a fishery could validly infringe a fishing right).

The quote from Delgamuukw cited in the article establishes that aboriginal title could be subject to infringement by government. I reiterate that if the government cannot justify its action, then it cannot infringe aboriginal rights. In fact, that the reason its important to recognize this quote is discussing infringement and what infringement actually means. In absence of government ability to meet the ‘burdensome’ justificatory standard, Canadian law effectively requires consent. I would argue that it is enough of “a shred” to hang my hat on.

Only three paragraphs later in Delgamuukw (and still on the topic of justification), the court states “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.”

That seems like a pretty decent shred to me. Of course, some people may argue that this is pretty weak because the Delgamuukw reasons were obiter, meaning these points weren’t necessary to determining the outcome of that case, and as such, are not binding. Possibly, but remember, all I’m looking for is a shred of a basis for consent in Canadian aboriginal law.

Of course, I can produce much more than a shred. In fact, consent is alive and well in aboriginal law, and I would think every aboriginal lawyer in Canada would be prepared to argue it. Why? Well, that line from Delgamuukw was picked up by the court and given legal effect in the Haida case ().

Haida didn’t even involve infringement/justification of an aboriginal right. It involved a dispute involving a mere claim of aboriginal title. In a dazzling display of quotation marks, the court referred back Delgamuukw (my paragraph, not that cited by this news article) stating:

The Court’s seminal decision in Delgamuukw, supra, at para. 168, in the context of a claim for title to land and resources, confirmed and expanded on the duty to consult, suggesting the content of the duty varied with the circumstances: from a minimum “duty to discuss important decisions” where the “breach is less serious or relatively minor”; through the “significantly deeper than mere consultation” that is required in “most cases”; to “full consent of [the] aboriginal nation” on very serious issues. These words apply as much to unresolved claims as to intrusions on settled claims.

If you somehow think I’ve made a case that consent leads to a veto, consider what the court said at paragraph 48 of Haida, “This process does not give Aboriginal groups a veto over what can be done with land pending final proof of the claim. The Aboriginal “consent” spoken of in Delgamuukw is appropriate only in cases of established rights, and then by no means in every case.”

Haida establishes that the concept of consent is well-entrenched in Canadian aboriginal rights law. In fact, paragraph 48 of that decision suggests to me that the feared “veto” apparently doesn’t apply to unproved claims(and I’d nonetheless be prepared to argue that it does in certain circumstances), but that the “veto” does exist and apply to ‘proved’ claims, including treaty rights.

Either way, Haida tells me that there is a more than a shred of a basis in law for the concepts of consent and veto. Given appropriate facts and circumstances, I’d be willing to wager a court would openly endorse First Nations consent, or a “veto”, using the shreds identified here, among others.