On July 26, 2017, the Supreme Court of Canada rendered two much awaited decisions respecting the duty of the National Energy Board to consult and accommodate the aboriginal rights of two distinct Indigenous peoples for two distinct projects. In one, Clyde River (Hamlet) v. Petroleum Geoservices Inc., 2017 SCC 40, a tiny Inuit community from Nunavut convinced the Court that it had not been deeply and meaningfully consulted or reasonably accommodated and therefore, the National Energy Board’s approval of the petroleum-testing project was overturned and quashed. In the other, Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41, the Court held that the NEB had appropriately and sufficiently consulted and then accommodated the southwest Ontarian Indigenous nation and upheld the NEB’s approval of Enbridge’s project. Of note, the Court ordered that the Chippewas of the Thames pay Enbridge’s costs.
The headline on today’s CBC News website says “Indigenous leaders to boycott Monday’s meeting with premiers”. The article outlines how three Indigenous groups, namely, the Assembly of First Nations, the Metis National Council and Tapirit Kanatami, have decided to withdraw from the Council of the Federation meeting where the leaders of the provinces and territories will be meeting because they (the indigenous leaders) are not being recognized as full and equal participants. In my opinion, this article demonstrates the pressing need for Canada’s reconciliation process to recognize the governments of Indigenous peoples in a more formal and constitutional manner.
On January 19, 2016, the Honourable Maryam Monsef, Minister of Democratic Institutions, announced the appointment of first members of the non-partisan panel that is charged with the task of coming up with qualified candidates for Senate vacancies. The panel, which has three federal representatives, two Ontario provincial representatives, two Quebec provincial representatives and two Manitoba provincial representatives, is supposed to come up with five qualified candidates for each Senate vacancy for those three provinces. The recommendations are not binding on the Prime Minister who ultimately submits his choices to the Governor General. The nine members of this initial panel are all eminently qualified. But there is criticism of the process. Some of the criticism has merit.
Last year, when Prime Minister Trudeau announced that he would press ahead with his plans for a non-partisan advisory panel to assist in choosing candidates for the Senate, BC’s Premier, Christy Clark, immediately slammed the proposal. She retorted that BC would not participate. On the same day as the Prime Minister’s announcement, she tweeted that the “Senate has never represented BC’s interests at the national level”. Later, she issued a statement: “[The proposed] changes do not address what’s been wrong with the Senate since the beginning. It has never been designed to represent British Columbians or our interests”. She has argued that BC is grossly under-represented, only getting 6 seats in the 105 seat Senate, and Mr. Trudeau’s changes would only serve to the Senate to think that it is somehow legitimate and that this would allow it to think that it could make decisions on behalf of the country. She stated that the Senate does not have that power and should not have it.
Premier Clark is both right and wrong. Furthermore, in my opinion, British Columbia is not the only party that should be seeking structural changes to the Senate. Specifically, I believe that the indigenous peoples of Canada should be included in any discussions involving revisions to the Senate.
The Supreme Court of Canada has made it clear – if you are going to raise a s. 15 Charter discrimination claim, make sure that you have the evidence to substantiate your claim. Making claims on the basis of intuition, presumed facts or innuendo will not suffice. In Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, released on Thursday, May 28, 2015, Justice Abella, speaking for the Court, reinstated the judgment of the trial judge, Mr. Justice de Montigny of the Federal Court, Trial Division. She rejected the claim of former Chief Taypotat of the Kahkewistahaw First Nation that the First Nation’s Election Code’s education requirement that candidates for office hold a Grade 12 diploma or equivalent discriminated against him on the basis of his age and residence on the reserve. Her judgment focussed principally on the utter lack of evidence of the alleged discrimination as well as the fact that the grounds had not been expressly pled, at least not in the manner developed by the Federal Court of Appeal on its own initiative.
The Chilcotin, British Columbia
On Thursday, June 26, 2014, the constitutional framework of Canada experienced an earthquake. Whether it was an earthquake of Richter scale 7 or 8, I cannot say. But let no one think otherwise – this was a big one. Whether it was the Big One or not will remain to be seen. For the first time in Canadian history, there has been a finding that a First Nation has established their claim to Aboriginal title. The Supreme Court of Canada decided in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 that the Tsilhqot’in Nation has proven its Aboriginal title to a swath of some 1900 square kilometers in the interior of British Columbia. What precipitated the action in which the claim was made was the Province’s issuance of timber harvest licences without consultation to the First Nation in question. Now, not only are the timber harvest licences invalid but the provincial Forest Act is now constitutionally inapplicable to those 1900 square kilometres. This is just the first claim of hundreds. After this decision, governments across the country are running back to check the claims of the First Nations resident in their territories – just how strong are those claims to Aboriginal title? – did those treaties really extinguish Aboriginal title or were they some sort of lesser treaty? – have the First Nations been consulted and accommodated in accordance with the Court’s dictates?
The Chief Justice spoke for the full court. In a relatively short 153 paragraph judgment that was clearly crafted with care and that united the various themes and principles that have been articulated in previous cases, she pronounced on the requirements for proving Aboriginal title, the rights conferred by Aboriginal title, the duties owed by the provincial government at the time of infringement and the ongoing ability of the provincial government to legislate and govern in respect of the Aboriginal title lands. While I cannot do it justice in a single post, I will touch upon some of the highlights and then discuss what I think this judgment means in the long term.
Before I go there, however, I want to present the thesis that this is not simply an Aboriginal law case focussing on Aboriginal title: it is fundamentally a constitutional law case. Because of s. 35 of the Constitution Act, 1982, in my view, the import of this decision is that the First Nations of this country must now be engaged as full actors in our constitutional framework and not merely as historical irritants that must be somehow assuaged before moving on to getting the business of the country done. This is what makes this case so earthshaking in my view.