DELGAMUUKW IMPLEMENTATION STRATEGIC COMMITTEE

Legal Review of Canada’s Comprehensive Land Claims Policy (CCP) (Released February 15, 2002)

Executive Summary of Memorandum Re Canada’s Comprehensive Claims Policy Prepared by Mark L. Stevenson and Albert Peeling

Context

Indian lands are inalienable except to the Crown. This is a fundamental attribute of Indian lands and cause for the courts to refer to the Indian interest in lands as sui generis. By stating that no private person may purchase Indian lands, the Royal Proclamation of 1763 outlines how Indian lands are to be exchanged. “…Lands…shall be purchased only for Us, in Our Name, at some Publick Meeting or Assembly of the said Indians to be held for that Purpose by the Governor or Commander in Chief of our Colonies respectively, with which in they shall lie:…” a Clearly, the Crown in right of England wanted to protect and/or secure access to Indian lands within a recognized and “official” framework. This framework includes: the recognition of Indian title, the acknowledgment of a special relationship between Aboriginal peoples and the Crown, placing a limit on the alienability of Indian lands, and requiring that such lands only be alienated through a public process. These key elements of the Crown-Indian relationship formed the basis of the historic treaty process and continue to be a part of the guiding principles in today’s Crown-Indian relationship. They have also been incorporated as a part of Canada’s policy for the negotiation of modern land claims. And, these same key elements form, at least in part, the basis of the Crown-Indian fiduciary relationship which at times crystallizes into a fiduciary duty enforceable by the courts.

The federal land claims policy was borne out of Canada’s desire to respond to the question of Aboriginal title after Calder v. the Attorney-General of British Columbia (1973) b . Calder, in conjunction with other major court decisions, has created significant uncertainty around the ownership of land. In August, 1973, in an effort to provide some certainty around the concepts of Aboriginal rights and title, the federal government announced that it “was prepared to negotiate

a

R.C.C.P. vol. 1 at 261 Calder. v. Attorney-General of British Columbia, (1973), 34 D.L.R (3d) 145 (also reported: [1973] S.C.R. 313, [1973] 4W.W.R. 1).
b

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comprehensive land claims with Aboriginal groups where their traditional and continuing interests in the lands concerned could be established.” c In 1982, Aboriginal and Treaty rights were recognized and affirmed pursuant to Section 35 of the Constitution Act . Section 35 had enormous implications for the claims policy because it was unclear what rights were recognized and affirmed. It was also unclear what recognition and affirmation meant and whether and how such rights could be extinguished in both the pre-and post 1982 context. Prior to 1982, it was understood that the Crown could unilaterally extinguish rights, but it was not decided whether the Crown in right of Canada or the Crown in right of the various provinces had the jurisdiction to do so and what language was required. In addition issues such as: the requirement for compensation, the allocation of priority rights, the concept of infringement and the nature of the fiduciary relationship with respect to section 35 rights were all unexplored legal territory. The decision in R. v. Guerind changed forever the legal relationship between First Nations and the Crown. While focusing on the nature of Indian lands and the discretion exercised by the Crown when Indian lands are surrendered, the court found that, based upon the Royal Proclamation, and the sui generis nature of Indian lands, a fiduciary relationship which gives rise to a fiduciary duty exists between the Crown and Aboriginal peoples. The general obligation is to act in the best interests of Aboriginal peoples. Legally enforceable duties arise when the general duty crystallizes. It was these changes, that is the inclusion of section 35 in the Constitution Act, 1982 and the decision in Guerin that were, in part, responsible for a revision to the 1981 In All Fairness policy. What the policy thinkers in the Department of Indian Affairs and Northern Development (DIAND) had considered to be fair in 1981, had been changed by the law. In 1986, after several significant decisions by the Supreme Court of Canada, as well as a number of federal policy reviews, e the 1981 policy was replaced by the current comprehensive claims policy. The new policy was published as the Comprehensive Land Claims Policy (1987), and is referred to in this document as the CCP. Unfortunately, while the new CCP was in some cases an improvement to the old policy, for the most part, the policy articulated in In All Fairness, remained in place. The Policy

In All Fairness, like the CCP, is not an intricate and precise policy document. It is a document written largely for public consumption and not as the expression of a detailed and
c

Comprehensive Land Claims Policy (Ottawa: DIAND Supply and Services, 1986), at 6. Guerin v the Queen, [1984] 2 S.C.R. 335 e Penner Report on Indian Self-Government(1986); Coolican Report on Comprehensive Claims Policy (1986)
d

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comprehensive policy. This may be out of a desire to be flexible. It is also likely that many of the details of the policy are provided in the specific mandates and instructions to negotiators and in various cabinet documents. The most significant changes between the 1981 policy and the 1987 policy appear to be: the attempt to search for different language for extinguishment, the agreement to include self- government (political rights) as a part of the negotiations, the broadening of the scope of negotiations, and the greater effort on the part of Canada to protect the interests of third parties. Much of the policy from both 1973 and 1981 has been retained in the current CCP. In some cases, the policy is ignored for reasons of political expediency, and this has not been disclosed to First Nations.

a)

Certainty/Extinguishment

The 1981 claims policy states that one of the driving principles is “to exchange undefined aboriginal land rights for concrete rights and benefits”. The policy called for “the extinguishment of all [A]boriginal rights and title as part of a claim settlement”f The current CCP has options for achieving certainty which allow for either a blanket extinguishment (cession and surrender) of aboriginal rights to lands and resources or the cession and surrender in all area, excluding reserves and some settlement areas.

While the language is different from the general language of the 1981 claims policy, the essence of the CCP continues to require that First Nations surrender their rights and title in return for negotiated rights provided through treaties. The distinction seems to be that the current CCP provides that for reserves and parts of settlement lands, extinguishment is no longer the only option. Some settlement lands and existing reserves may remain as aboriginal title lands. However, this option is not available in British Columbia. In fact in British Columbia, the current policy requires not only the cession of lands and resources rights, but of all rights, whatever shape they may take.

f

CCP at page 11.

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b)

Self-Government

One of the most important changes from the 1981 policy is the inclusion of self- government negotiations in the context of the claims process. Under the 1981 policy, the purpose of negotiations was to engage in discussion around non-political rights. While local selfgovernment initiatives could be a part of the discussion, there were no policy provisions for the discussion and exploration of full self- government models. The new CCP changed this. The policy states:

In the context of the comprehensive land claims policy, self- government is an issue that is closely tied to the expressed need of aboriginal peoples for continuing involvement in the management of land and resources as well as in the development of self- government institutions that recognize their place in Canadian Society. The circumstances in which the negotiation of self- government matters in claims areas would be appropriate could include community based self- government regimes on designated lands. In other cases, measures which support the direct participation of aboriginal representatives in management boards could be adopted to ensure appropriate representation of interests in decision- making processes, subject to the application of such federal and provincial legislation to those areas g.

However, the 1987 policy did not allow for the constitutional protection of self- government. The concept of self- government under the CCP is essentially a delegated form of community based self-government. The agreement to allow self- government agreements to receive constitutional protection was provided for later as a part of Canada’s Inherent Right Policy entitled Aboriginal Self-government: The Government of Canada’s Approach to Implementation of the Inherent right and the Negotiation of Aboriginal Self-governmenth ,

g

CCP at page 18

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c)

Lands

In both the 1981 policy and the CCP, the fundamentals are similar. Land selection is at the basis of the policies and land and cash make up the key business components of an agreement. The exchange required is essentially the same, that is extinguishment. Both policies require that lands selected by beneficiaries for their settlement lands should be from the traditional terrestrial lands that are currently used and occupied. Rights of access to third parties must be maintained, and if this cannot be attained, third parties are to be compensated.

Both policies build on the requirement that the land selection process be conducted within the traditional territories and require that competing claims to ancestral lands be resolved:

When more then one claimant group uses common areas of lands and resources, and the claimants cannot agree on boundaries, resource access or land sharing agreement, no land will be granted to either group in the contested area until the dispute is resolved. i

d)

Wildlife

Provisions for “Wildlife” are by and large the same. Both policies recognize the link First Nations have with wildlife.

The continuing economic, social and cultural importance of hunting, fishing and trapping for many [A]boriginal communities is recognized by the federal government. Accordingly, settlements may provide for preferential wildlife harvesting rights for beneficiaries on unoccupied Crown lands. There may be exclusive harvesting rights exercised by settlement beneficiaries on selected lands…In all cases settlements will clearly define the terms by which beneficiaries will have access to wildlife resources. j
h

Aboriginal Self-Government: The Government of Canada’s Approach to Implementation of the Inherent right and the Negotiation of Aboriginal Self-government. Minister of Indian Affairs and Northern Development, Ottawa (1995)[Hereinafter, the Inherent Right Policy] i CCP at page 12, j CCP at 13.

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e)

Subsurface Rights

Subsurface rights are specifically addressed in both policies. In both policies, the granting of subsurface rights is considered as a means of providing for greater Aboriginal participation in the economy and as a way “to avoid land use conflict”. Neither policy recognizes that Aboriginal title includes the right to own subsurface resources.

f)

Monetary Compensation

Similarly provisions relating to compensation are found in both the 1981 policy and the current CCP. Both policies propose that compensation be a part of the settleme nt package, and that such compensation may take the form of cash, government bonds or other forms of debenture. More will be said on this later.

g)

Other Matters

Taxation, Eligibility, and Programs read almost identically in both the 1981 to the 1986 policy. k Neither policy makes reference to the removal of the section 87 tax exemption, but both provide that income derived from compensation shall be subject to the Income Tax Act. .h) Scope of Negotiations

As for the scope of negotiations, the substantive subject matters that may be negotiated seem to be broader under the current CCP, including such matters as: • • • • Offshore Areas Resource revenue Sharing Environmental Management Etc.

k

CCP, at 14-15.

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Changes in Legal and Political Landscape Shortly after the CCP was in place, the Supreme Court of Canada rendered its decision in R v Sparrow.l Once again, the decision in Sparrow changed the landscape. For the first time, the Supreme Court of Canada held that a constitutionally protected Aboriginal right existed (right to fish for food) and that the right had been infringed by federal fishery regulations. The court also clarified that the extinguishment of section 35 rights required clear and plain language. In addition, the court expanded on the Guerin type fiduciary duty by incorporating the fiduciary duty into the justification test laid out in Sparrow. For the purposes of the CCP, Sparrow was also important because it provided clarity around the language required for the extinguishment of rights. If rights were to be extinguished, clear and plain language was required. Sparrow was followed by a host of landmark decisions providing greater definition to rights and title, including a finding in Gladstonem that, with respect to the Heiltsuk First Nation, there is a commercial right to fish for herring roe on kelp. The litany of successful aboriginal rights and title litigation culminated in the 1997 decision of Delgamuukw v. British Columbia. n However, the CCP policy has remained unchanged, while the law has changed dramatically In acknowledging a need for reform, the federal government has tinkered with the parameters of the policy in an attempt to update and modernize the now outdated CCP. There have been several policy statements that have attempted to grapple with the changing legal and political landscape. A number of these policy statements have been referred to in a letter dated December 22, 2000 from the Honorable Robert Nault, Minister of Indians Affairs and Northern Development, to Chief Arthur Manuel, Chair man of the Shuswap Nation Tribal Council. In his letter the Minister states: “Taken together, I would suggest that the above initiatives represent a significant evolution of, and from my perspective an improvement to, the Comprehensive Claims Policy as drafted in 1986.” This is somewhat of an overstatement.

For the most part, these policy statements referred to in the Nault letter are intended to apply to the British Columbia Treaty Process. These include: A Statement of Aboriginal and Crown Title (April 29, 1998), A Statement on Interim Measures for Treaty Negotiations in British Columbia (April 28, 2000), A Statement on Certainty Principles For Treaty Negotiations in British Columbia (April 28,2000), British Columbia Capacity Initiative to enhance British Columbia First Nations’ abilities to prepare for comprehensive land claims negotiations (January 27 1999)
l

m

R v. Sparrow, [1990] 1 S.C.R. 1075. R v. Gladstone, [1996] 2 S.C. R. 723.

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a framework policy and funding for Treaty Related Measures in British Columbia, and a revised Province-Wide Fisheries Strategy for Treaty Negotiations in British Columbia. As well, there is the federal inherent right policy referred to earlier and confirmed more recently under Gathering Strength. There have also been structural changes to the process of negotiating modern treaties that are specific to British Columbia. In addition to these, there are policy changes from time to time that result from different Final Agreements or from the evolution of politics.

Analysis

Canada’s Comprehensive Land Claims Policy (CCP) announced in December of 1986 cries out for revision. The CCP was outdated at its inception because it continued the “cede release and surrender” policy of the historic treaties and placed that policy in a 20th century context. The legal landscape has shifted and the claims policy has not kept abreast. It is now the 21st century and the need for change is self-evident. The federal response for the need for changes is extraordinary in its silence.

A part from not keeping pace with the law, the policy is disjointed and applied inconsistently. As noted above, here have been a number of policy statements. Some of these are available to the public, and some are not. Some of these public pronouncements are merely self- serving political statements, others amount to changes in the policy, and it is sometimes difficult to distinguish between the two. Other changes are clearly an attempt to pander to the provinces and third parties and not in the best interests of Indians. And, there is no single place to locate the policy, and in fact much of the policy remains classified and as such, is unavailable to the public. To make matters worse, critical elements of what is available to the public and purported to be the policy are not being followed.

Here are but a few examples:

n

Delgamuukw v. British Columbia, [1997] 3. S.C.R. 1010.

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Both the 1981 policy and the current CCP indicate that compensation is available as a part of the negotiations. However, compensation is not a part of the actual negotiations because the Crown takes the position that negotiations should be future looking and not focus on compensation for past infringements. Yet, the April 28, 2000 Statement on Certainty Principles speaks to reconciling past infringements. Ironically, compensation is payable to third parties. To add insult to injury, First Nations are asked to release the Crown from any future claims to compensation.

The CCP provides options for extinguishment. One of the options is not require “cession or surrender” on reserves or settlement lands. However, in British Columbia, this option is not available. Also, the CCP speaks to certainty and finality to land based rights, and does not seek the extinguishment of the inherent right or other non- land based rights. In the Nisga’a Final Agreement, all section 35 rights, including the inherent right to selfgovernment were “modified and released.” In other documents there are discussions of the non-assertion of rights as opposed to extinguishment.

In British Columbia, the treaty model requires that settlement lands become fee simple lands and no longer under the jurisdiction of the federal government pursuant to section 91(24) by providing that upon the coming into force of the treaty, “there will be no more lands reserved for the Indians within the meaning of the Constitution Act, 1867”. Yet, at least pursuant to the 1973 Cabinet decision, which was subsequently incorporated into the CCP – Canada would continue to assume its jurisdiction over Indians and Indian lands pursuant to section 91(24).

As for the Criteria for Acceptance, the CCP has none, though it outlines what must be included in the statement of claim, and the claim is to be measured against legal criteria by the Department of Justice. At the same time, the 1996 Statement on Comprehensive Claims provides 6 criteria which a claim must meet. The criteria are at odds with Delgamuukw, and in any event, it appears that the criteria are not followed.

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Since the policy was announced in December, 1986, the law has changed dramatically. In 1990, the Supreme Court of Canada found that section 35 rights exist and set a test to be met if those rights are to be infringed. The test included the incorporation of the fiduciary duty into the justification process. The test was later expanded upon in Van der Peet, and Gladstone. And, in 1997, the Supreme Court of Canada rendered its landmark decision in Delgamuukw. The CCP could not have foreseen these clarifications and changes to the law. The law has changed and the policy has not, and to that extent, the policy is inconsistent with the law.

In particular: •

The model which the Crown has perpetuated is not a model based upon the recognition of rights. The model is an exchange model where aboriginal and treaty rights are extinguished in exchange for specific treaty rights. This is contrary to the recognition and affirmation language of section 35. The closest the model comes to actually recognizing existing rights is through the claims acceptance process. But the criteria used for the acceptance of the claim are fundamentally flawed and do not conform to the criteria outlined in Delgamuukw. While the lack of criteria (per the BCTC process) may make good policy sense it has lead to litigationo and is in fact, in conflict with the law.

The Crown continues to require the extinguishment of section 35 rights. The requirement of extinguishment is contrary to the law as articulated in Sparrow which requires “as little infringement as possible”. In fact, it is difficult to think of a more intrusive invasion of section 35 rights than extinguishment. Coupled with this, the Crown is in a fiduciary relationship with Indian people. As a part of the fiduciary

o

Litigation in the Luuxhon matter is fundamentally about an unresolved overlap between the Gitanyow and the Nisga’a. Arguably, if there were Criteria in place as a part of the acceptance criteria that required proof of title (as outlined in Delgamuukw) this debate may have been avoided. At the same time, it is acknowledged that an over reliance on legal criteria and processes may not always be the way to resolve claims.

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duty, the Crown owes a duty of “complete trust and utmost loyalty”. The requirement of extinguishment in order to address the concerns of provinces and third parties is inconsistent with the duty of loyalty which the law requires. •

Canada now requires that settlement lands are fee simple lands and no longer within the scope of section 91(24). This is inconsistent with the principles that flow from the Royal Proclamation of 1763 and several centuries of case law. In St Catherine’s Milling and Lumber Co., v the Queen, the court concluded that section 91(24 lands include “all lands reserved, upon any terms or conditions, for Indian occupation.” This finding was confirmed by the Supreme Court of Canada in Delgamuukw. While there may be good reasons for holding settlement lands outside of section 91(24), it is contrary to accepted constitutional principles.

Under the current practice, compensation for past infringements of section 35 is unavailable. The capital amount payable pursuant to a settlement agreement is based on a per capita formula for what is considered what is politically acceptable, it is not compensation owning for past breaches. The policy fails to grasp that the entitlement to compensation is a legal one and not a political one. Delgamuukw has clarified this by stating that compensation would normally be required. There is a presumption in law in favor of compensation. This presumption is even stronger given that the rights being dealt with in modern treaty negotiations are constitutional rights.

Aboriginal title encompasses “the right to exclusive use and occupation”, the right to “chose to what uses the land can be put” and an “inescapable economic component”. The claims negotiations and the CCP diminish the nature of Aboriginal title in favor of the interests of recreational hunters, or the interests of the public over access. The negotiations and the CCP do not address the commercial nature of Aboriginal rights and title and the policy breaches the right of First Nations to choose how there land is to be used. All of these limitations that flow from the CCP are inconsistent with the

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nature of Aboriginal title, and to that extent, inconsistent with the law. •

The CCP does provide for some interim measures but these interim measures do not adhere to the minimum legal requirements. Interim Measures are required to address the ongoing infringements by the Crown. To do this the court has suggested consent requirements, exclusive use areas, the allocation of priority rights, the minimizing of economic barriers, and compensation. This is not being done, and infringements are occurring on an ongoing basis.

Conclusion

Legal obligations, including the fiduciary obligation, duties of full disclosure and principles of good faith negotiations are not options. They are a part of the law. The CCP is not just another Crown policy. It is the policy that governs treaty negotiations. The treaty negotiation process is one of the pillars of the Crown-Indian relationship that purports to legitimize the Crown’s acquisition of vast territories. Courts are cognizant of the sanctity of this relationship. In order to protect the sanctity of both the Crown-Indian relationship and the treaty process, the courts have developed principles which must be honored. Some of these key principles flow from the fiduciary relationship and section 35, and require that the Crown act in the best interests of First Nations and require a duty of utmost loyalty. Some parts of the CCP and the conduct of the Crown in implementing the CCP is inconsistent with that duty. In short, promises are not being kept and the honor of the Crown is tainted.

Mark L. Stevenson and Associates Ph (250) 889-4397
Mark@aboriginallaw.com

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REVIEW OF CANADA’S COMPREHENSIVE LAND CLAIMS POLICY (CCP) Prepared by Mark L. Stevenson and Albert Peeling Date 31 July, 2001

The purpose of this paper is to provide a legal analysis of the federal comprehensive claims policy to determine whether the current policy is consistent with basic legal principles. The analysis has been divided into three parts. Part I is contextual. It provides a background to the policy, including an historical overview, a review of the legal context of the policy, a discussion of the policy essentials, and an identification of policy changes. Part II provides a legal analysis of the key policy imperatives. Part III provides a discussion of the legal principles that emerge from the analysis in Part II, in particular, those matters related to the fiduciary obligation and good faith negotiations. Part I – the Context A The Royal Proclamation of 1763:p

Perhaps the most important document to recognize and define the relationship between the Crown and First Nations was, and still is, the Royal Proclamation of 1763. Coming into force during the reign of King George III, the Proclamation was a response to The Treaty of Paris q , which saw the end of the Seven Years War and the relinquishment by France of its colonial holdings in North America to Britain and Spain. In its broadest application the Proclamation served to organize Britain’s newly won lands while addressing growing concerns around European/First Nations relations - including Pontiac's Rebellion (May-June, 1763), which centered around the unfair acquisition of Indian Lands by early colonialists . r In essence, the Proclamation set out the Crown’s policies around colonial expansion into “Indian Lands,” while advancing a framework for relationships between the Crown and the Aboriginal peoples. The Royal Proclamations has four distinct parts: The description of lands covered under the Proclamation; the installation of English law, elected government and religious reforms; a
p

As there are several different texts of the Royal Proclamation of 1763 I have used, as general reference, the one presented as Appendix D of Royal Commission on Aboriginal Peoples: Looking Forward, Looking Back, vol 1 (Ottawa: RCAP, 1996) which is derived from Clarence S. Brigham ed., British Royal Proclamation relating to America, Volume 12, Transactions and Collections of the American Antiquarian Society (Worcester, Mass.: American Antiquarian Society, 1911), pp. 212-218 which reproduces the original text of the Proclamation printed by the King’s Printers, Mark Baskett, in London in 1763. This text appears to be the most authoritative printed version of the Proclamation available. q For the text of the Treaty of Paris please see Treaty of Paris (1763), online The Avalon Project The Avalon Project at the Yale Law School http://www.yale.edu/lawweb/avalon/paris763.htm (last modified: May 15, 2001). r Arthur J. Ray, I Have Lived Here Since Time Began: An Illustrated History of Canada’s Native People (Toronto: Lester Publishing, 1996). s Brian Slattery, The Land Rights of Indigenous Canadian Peoples as ffected by the Crown's Acquisition of their Territories. D.Phil. thesis (Oxford University). Saskatoon, A Sask: University of Saskatchewan;Native Law Centre, 1979. Chapter 12 p. 204.[hereinafter “The Land Rights of Indigenous Canadian Peoples ” ]. For a complete examination of the Royal Proclamation of 1763 it is recommended that you consult this comprehensive work

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provision granting land to army officers for service to the Crown, and lastly, a number of provisions and instructions dealing with First Nations. Although the scope of the Proclamation is considerable, for the purpose of this analysis, it is the Indian provisions that are important. The territory that England received as part of the Treaty of Paris included Quebec, East Florida, West Florida and the island of Grenada, along with Dominico, St. Vincent, Tobago, and the Grenadines. t Plainly, this territory covers vast chunks of North America. The Indian territory described by the Proclamation is more easily characterized by the exceptions. The territories have been described thusly: … All North American territories held by the Crown in October 1763, with the exception of 1) the two Floridas, Quebec and Rupert’s Land, and 2) lands lying east of the Appalachian Mountains, including old Nova Scotia, and the islands of St. John (Prince Edward), Cape Breton, and Newfoundland. u Described differently in the Proclamation, such territories include: …any Lands beyond the Heads or Sources of any of the Rivers whic h fall into the Atlantick Ocean from the West or North-West, or upon any lands whatever, which, not having been ceded to, or Purchased by Us as foresaid, are reserved to said Indians, or any of them. There is some doubt about the geographic scope of the Indian provisions the Royal Proclamation, and whether they actually extend into British Columbia. This is because British Columbia was considered to be outside the reach of the Proclamation. Notwithstanding this debate three essential ingredients emerge from the Proclamation which serve as pillars for the Crown-Indian relationship. Firstly, is the acknowledgement by the Crown that First Nations have rights and title to the land, and existing forms of government. Second, the Proclamation sets out a framework for a relationship between the two societies. In this context, a peculiar paradox arises. On the one hand, the Proclamation seemingly looks to provide the English with allies and partners and as an extension of this partnership, First Nations are considered as equals. However, in other parts of the text, there is a trust- like relationship where one party to the relationship is subject to the discretion of the other. As discussed later, this discretion gives rise to a corresponding duty of loyalty. It is essential to recognize how this peculiar relationship serves as the background for subsequent treaty negotiations. Thirdly, the Proclamation delineates the British policy for acquiring land. The Proclamation, among other things, limits the First Nations’ ability to sell land, stipulating that Indian lands must first be surrendered to the Crown.

In limiting the ability of Aboriginal Peoples to sell their lands, except unto the Crown, the Proclamation states:

t u

Slattery, The Land Rights of Indigenous Canadian Peoples ”, supra note 4 at 205 Slattery, at 282

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…and We do hereby strictly forbid, on Pain of Our Displeasure, all Our loving Subjects from making any Purchases or Settlements whatever or taking Possession of any of the Lands above reserved, without Our especial Leave and License for that Purpose first obtained Two connected points arise in relation to the land acquisition process. The first point concerns the protection and peace of the colonies, including the protection of Aboriginal lands. The second is that Aboriginal lands could only be purchased by the Crown, which reserved for itself the exclusive right to negotiate for and purchase Indian lands. One of the reasons the Crown wanted to limit the acquisition of Aboriginal land is described in the R.C.A.P. report: [T]he Crown hoped to remove the constant colonial pressure for lands that had pushed many tribal nations into the interior and that threatened to lead to new wars between Indian peoples and colonists . v England, recognizing that existing relationships were already strained, would make all efforts to guarantee a peace between First Nations and the settlers. And, in “strictly forbidding” land purchase from the reserved lands of the Indians and ensuring that all lands transaction went through the Crown, the Crown sought to accomplish two goals. Firstly: the establishment of an orderly process whereby Indian land could be purchased for settlement or development. Before that process, private individuals – land speculators and colonial officials – had often perpetrated frauds on Indian sellers and non-Indian purchasers alikew By having all land transactions approved by the Crown, it was thought there would be little danger that First Nations would be taken advantage of, at least by the settlers. Secondly, by stating that no private person may purchase Indian lands, the Proclamation outlines how land is to be exchanged. “…Lands…shall be purchased only for Us, in Our Name, at some Publick Meeting or Assembly of the said Indians to be held for that Purpose by the Governor or Commander in Chief of our Colonies respectively, with which in they shall lie:…” x Clearly, England wanted to protect and/or secure access to Indian lands within a recognized and “official” framework. y . This framework included the recognition of Indian title, the acknowledgment of a special relationship between Aboriginal peoples and the Crown, placing a limit on the alienability of Indian lands, and requiring that such lands only be alienated through a public process. These key elements formed the basis of the historic treaty process and continue to be guiding princip les in the Crown-Indian relationship. They have also been incorporated as a part of Canada’s policy for the negotiation of modern land claims. And, these same key elements form, at least in part, the basis of the Crown-Indian fiduciary relationship which at times crystallizes into a fiduciary duty enforceable by the courts.
v

R.C.A.P . vol. 1 at 261 R.C.A.P. vol. 1at 261 x R.C.C.P. vol. 1 at 261 y Arguably the basis for a Nation to Nation relationship
w

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B) Legal Context The land claims policy was borne out of Canada’s desire to respond to the question of Aboriginal title after Calder v. the Attorney-General of British Columbia (1973) z. Calder, in conjunction with other major court decisions, has created significant uncertainty around the ownership of land. In an effort to provide some certainty around the concepts of Aboriginal rights and title the federal government announced, in August of 1973, that it “was prepared to negotiate comprehensive land claims with Aboriginal groups where their traditional and continuing interests in the lands concerned could be established.” aa Prior to 1973, there was no recognized framework for modern treaty negotiations, bb other than the essential principles that flowed from the Proclamation. This was because Aboriginal title was considered to have been dealt with pursuant to the historic treaty process and that if indeed it (Aboriginal title) continued to exist, it was merely a burden on the title of the Crown, that was subject to the “goodwill of the sovereign”. And, in British Columbia, it was felt that if Aboriginal or Indian title did exist, its source was the Indian provisions of the Royal Proclamation which had no application west of the Rockies. The Calder decision changed this. First and foremost, the court recognized the concept Aboriginal rights and title. Secondly, the court determined that the existence of Aboriginal rights and title did not depend upon the Royal Proclamation, rather, such rights flow from Aboriginal peoples’ traditional use and occupancy of the land. Mr. Justice Hall, with Justices Spence and Laskin agreeing, stated this: This Aboriginal title does not depend on treaty, executive order or legislative enactment but flows from the fact that the owners of the interest have from time immemorial occupied the areas in question and have established a pre-existing right of possession. In the absence of an indication that the sovereign intends to extinguish that right the Aboriginal title continues. cc Judson J. said at page 156: Although I think that it is clear that Indian title in British Columbia cannot owe its origin to the Proclamation of 1763, the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their fore- fathers had done for centuries. This is what Indian title means and it does not help one in the solution of this problem to call it a "personal or usufructuary right". In 1981, the federal government changed its land claims policy, recognizing that two separate types of claims existed, specific claims, and comprehensive or Aboriginal title based claims. The new federal claims policy was published in a book ent itled In All Fairness: Canada’s Land

z

Calder. v. Attorney-General of British Columbia, (1973), 34 D.L.R (3d) 145 (also reported: [1973] S.C.R. 313, [1973] 4W.W.R. 1). aa Comprehensive Land Claims Policy (Ottawa: DIAND Supply and Services, 1986), at 6. bb Tom Isaac, Aboriginal Law Cases, Material and Commentary (Saskatoon: Purich, 1999), at 29. cc Calder. v. A.-G. B.C., 34 DLR. 146 at 93.

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Claims Policy. dd The change in the policy was an attempt to grapple with changing legal and political circumstances and to give the policy a new face. But the state of the law was still unclear, and it continued to evolve. This is so because, while the Supreme Court recognized Aboriginal rights and title as a legal concept, the court was unclear about the issue of extinguishment. The court acknowledged that Aboriginal rights and title could be extinguished by the Crown, but was uncertain if extinguishment required clear and plain language or whether extinguishment could occur through the process of opening up the land for settlement. This question was not addressed until almost a decade later by the Supreme Court of Canada’s decision in R v. Sparrowee. In 1982, Aboriginal and treaty rights were recognized and affirmed pursuant to Section 35 of the Constitution Act, 1982. Section 35 had serious implications for the claims policy because of the uncertainty it created. It was unclear what rights were recognized and how such rights could be extinguished in both the pre-and post 1982 context. Prior to 1982, it was understood that the Crown could unilaterally extinguish rights, but it was not decided whether the Crown in right of Canada or the Crown in right of the various provinces had the jurisdiction to do so. It was also undecided if the extinguishment language had to be clear and plain. In addition the inclusion of section 35 in the Constitution Act, 1982, while not providing definition of rights, provided the rights with an unprecedented degree of protection. While it was readily acknowledged that section 35 protected Aboriginal and treaty rights, issues such as the requirement for compensation, the allocation of priority rights, the concept of infringement and the nature of the fiduciary relationship with respect to section 35 rights were all unexplored concepts. The decision in R. v. Guerin ff changed forever the legal relationship between First Nations and the Crown. While focusing on the nature of Indian lands and the discretion exercised by the Crown when Indian lands are surrendered, the court found that, based upon the Royal Proclamation as incorporated into the surrender provisions of the Indian Act, and the sui generis nature of Indian lands, a fiduciary relationship which gives rise to a fiduciary duty exists between the Crown and Aboriginal peoples. The general obligation is to act in the best interests of Aboriginal peoples. Legally enforceable duties arise when the general duty crystallizes. It was these changes, that is, the inclusion of section 35 in the Constitution Act, 1982 and the decision in Guerin that were, in part, responsible for a revision to the 1981 In All Fairness policy. What the policy thinkers in the Department of Indian Affairs and Northern Development (DIAND) had considered to be fair in 1981, had been changed by the law. In 1986, after several significant decisions by the Supreme Court of Canada, as well as a number of federal policy reviews, gg the 1981 policy was replaced by the current comprehensive claims policy. The new policy was published as the Comprehensive Land Claims Policy (1987), and is referred to in this document as the CCP. Shortly after the CCP was in place, the Supreme Court of Canada rendered its decision in R v Sparrow. Once again, the decision in Sparrow changed the landscape. For the first time, the Supreme Court of Canada held that a constitutionally protected Aboriginal right existed (right to
dd ee

In All Fairness: A Native Claims Policy (Ottawa:Diand, Supply and Services, 1981) R v. Sparrow, [1990] 1 S.C.R. 1075. ff Guerin v the Queen, [1984] 2 S.C.R. 335 gg Penner Report on Indian Self-Government(1986); Coolican Report on Comprehensive Claims Policy (1986).

18

fish for food) and tha t the right had been infringed by federal fishery regulations. In addition, the court expanded on the Guerin type fiduciary duty by incorporating the duty into the justification test laid out in Sparrow. For the purposes of the CCP, Sparrow was also important because it provided clarity around the language required for the extinguishment of rights. If rights were are to be extinguished, clear and plain language is required. Sparrow was followed by a host of landmark decisions providing greater definition to rights and title, including a finding in Gladstonehh that, with respect to the Heiltsuk First Nation, there is a commercial right to fish for herring roe on kelp. The litany of successful Aboriginal rights and title litigation culminated, after a heroic effort by the Gitksan and Wetsuwet’en Nations, in the 1997 decision of Delgamuukw/Gisday’wa v. British Columbia. ii However, the CCP policy has remained unchanged, while the law has changed dramatically. C) Canada’s Land Claims Policy

The CCP makes it clear that it is a revision to other policies, and: “Where no changes have been made in the policy and procedures, the provisions of the previous policy will remain in effect.” jj In 1973, Canada announced the introduction of its first land claims policy. Canada’s announcement was mandated by a decision pursuant to Cabinet Document No 570-73 entitled Indian and Inuit Claims Policy (June 5, 1973) kk which outlined the following guidelines for negotiations: 1. Federal jurisdiction and responsibility would continue under section 91(24) of the BNA Act – “Indians and Lands reserved for the Indians”. 2. Settlements must be compatible with existing political institutions. 3. Agreements must be comprehensive, must effectively settle specific Native claims to special rights, titles and privileges in the eyes of the law, in the eyes of the Native people, and of the public generally, now and in the future. 4. The final decision in determining who will participate in any settlement will rest with Parliament, but the views of the Ind ian and Inuit people concerned must be taken fully into account. 5. Settlement must provide ground for a realistic expectation that Native people can achieve a degree of economic self-sufficiency comparable to that of other Canadians and thereby help alleviate their sense of injustice. 6. The process of arriving at a settlement must meet the psychological needs of both Indian and Inuit people, must be related to their cultures and settlements should contribute to maintaining future cultural identities. 7. Settlement s in any one area must be such that, if the Indians so wished, they could form the basis for adaptation in other areas.

hh ii

R v. Gladstone, [1996] 2 S.C. R. 723. Delgamuukw v. British Columbia, [1997] 3. S.C.R. 1010. jj CCP at page 7. kk Obtained pursuant to an application under the federal Access to Information Act

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8. The provinces must be held to their obligations and wherever their interests and responsibilities are affected by a Native claim, the go vernment concerned must be brought into any settlement; the Territorial governments will also be involved. 9. The value of the total settlement and scheduling of compensation must be related to competing demands for public funds and other resources. 10. The terms of settlement must be such as to ensure prudent management of the proceeds for the use and benefit of the people on whose behalf settlement is made. 11. No settlement will include the payment of interest. Comparison between 1981 and 1987 Policies In 1981 Canada updated the 1973 policy with the publication of In All Fairness: Canada’s Land Claims Policy. In All Fairness, like the CCP, is not a detailed policy document. It is a document written largely for public consumption and not as the expression of a comprehensive policy. This may be out of a desire to be flexible. It is also likely that many of the details of the policy are provided in the specific mandates and instructions to negotiators. The most significant changes between the 1981 policy and the 1987 policy include: the attempt to search for different language for extinguishment, the agreement to include self- government (political rights) as a part of the negotiations, the broadening of the scope of negotiations, and the greater effort on the part of Canada to protect the interests of third parties. Much of the policy has however been retained. In some cases, the policy is ignored for reasons of political expediency. a) Certainty/Extinguishment

The 1981 claims policy states that one of the driving principles is “to exchange undefined Aboriginal land rights for concrete rights and benefits”. Otherwise stated, the policy called for “the extinguishments of all [A]boriginal rights and title as part of a claim settlement” ll The current CCP has options for achieving certainty which allow for either a blanket extinguishment (cession and surrender) of Aboriginal rights to lands and resources or the cession and surrender in all areas, excluding reserves and some settlement areas. While the language is different from the general language of the 1981 claims policy, the essence of the CCP continues to require that First Nations surrender their rights and title in return for negotiated rights provided through treaties. The distinction seems to be that the cur rent CCP provides that for reserves and parts of settlement lands, extinguishment is no longer the only option. Some settlement lands and existing reserves may remain as Aboriginal title lands c) Self-Government One of the most important changes from the 1981 policy is the inclusion of self- government negotiations in the context of the claims process. Under the 1981 policy, the purpose of negotiations was to engage in discussion around non-political rights. While local selfgovernment initiatives could be a part of the discussion, there were no policy provisions for the
ll

CCP at page 11.

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discussion and exploration of full self- government models. The new CCP changed this. The policy states: In the context of the comprehensive land claims policy, self- government is an issue that is closely tied to the expressed need of Aboriginal peoples for continuing involvement in the management of land and resources as well as in the development of self- government institutions that recognize their place in Canadian society. The circumstances in which the negotiation of self- government matters in claims areas would be appropriate could include community based self- government regimes on designated lands. In other cases, measures which support the direct participation of Aboriginal representatives in management boards could be adopted to ensure appropriate representation of interests in decision- making processes, subject to the application of such federal and provincial legislation to those areas mm.

However, the 1987 policy did not allow for the constitutional protection of self- government. The agreement to allow self- government agreements to receive constitutional protection was provided for later as a part of the Inherent Right Policy. nn c) Lands

In both the 1981 policy and the CCP, the fundamentals are similar. Land selection is at the basis of the policies and land and cash make up the key business components of an agreement. The exchange required is essentially the same, that is, extinguishment for land and cash. Rights of access to third parties must be maintained, and if this cannot be attained, third parties are to be compensated. Both policies build on the requirement that the land selection process be conducted within the traditional territories and require that competing claims to ancestral lands be resolved: When more then one claimant group uses common areas of lands and resources, and the claimants cannot agree on boundaries, resource access or land sharing agreement, no land will be granted to either group in the contested area until the dispute is resolved. oo d) Wildlife

Provisions for “Wildlife” are by and large the same. Both policies recognize the link First Nations have with wildlife. The continuing economic, social and cultural importance of hunting, fishing and trapping for many [A]boriginal communities is recognized by the federal government. Accordingly, settlements may provide for preferential wildlife harvesting rights for
mm nn

CCP at page 18 Aboriginal Self-Government: The Government of Canada’s Approach to Implementation of the Inherent right and the Negotiation of Aboriginal Self-government. Minister of Indian Affairs and Northern Development, Ottawa (1995)[Hereinafter, the Inherent Right Policy] oo CCP at page 12,

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beneficiaries on unoccupied Crown lands. There may be exclusive harvesting rights exercised by settlement beneficiaries on selected lands…In all cases settlements will clearly define the terms by which beneficiaries will have access to wildlife resources. pp e) Subsurface Rights

Subsurface rights are specifically addressed in both policies. In both policies, the granting of subsurface rights is considered as a means of providing for greater Aboriginal participation in the economy and as a way “to avoid land use conflict”. Neither policy recognizes that Aboriginal title includes the right to own subsurface resources. f) Monetary Compensation

Similarly provisions relating to compensation are found in both the 1981 policy and the current CCP. Both policies propose that compensation be a part of the settlement package, and that such compensation may take the form of cash, government bonds or other forms of debenture. g) Other Matters

Taxation, Eligibility, and Programs read almost identically in both the 1981 to the 1986 policy. qq Neither policy makes reference to the removal of the section 87 tax exemption, but both provide that income derived from compensation shall be subject to the Income Tax Act. .h) Scope of Negotiations

As for the scope of negotiations, the substantive subject matters that may be negotiated seem to be broader under the current CCP, including such matters as: • Offshore Areas • Resource revenue Sharing • Environmental Management • Etc. Comprehensive Land Claims Policy (1987) With the forgoing in mind, below is a brief commentary on the CCP with contextual references to Delgamuukw and other court decisions when appropriate. a) General (protection of third parties, comparability, and certainty)

The CCP states at page 9 that continuing interests of third-parties in settlement areas will be recognized and protected. Delgamuukw states that Aboriginal title is an exclusive right to use and occupy land. The policy exacerbates conflict between Aboriginal title holders and third party stake holders by providing third parties with a priority over Aboriginal rights and title
pp qq

CCP at 13. CCP, at 14-15.

22

holders. This seems at odds with the basic principle of law that where two rights compete, the other equities being equal, the first in time prevails. At page 10 the CCP states there will be an equitable application of the CCP to ensure fairness of settlements (i.e. “comparability”) This implies a formula-driven approach to mandate development. Canada and British Columbia have essentially adopted a per-capita approach in the BCTC process. There is a federal-provincial cost-sharing agreement that is driven by “planning estimates” which have been used to pre-determine land and cash allocations. rr Delgamuukw speaks to reconciliation through “negotiation” and “give and take on both sides”, not a pre-determined mandate. Under the CCP, Canada will consider alternatives to the “cede, release and surrender” model. It identifies alternatives to extinguishment. However the alternatives are simply different ways of saying the same things – extinguishment. Section 35 of the Constitution Act, 1982 provides for the recognition of Aboriginal rights. The concepts of recognition and extinguishment are in conflict. This will be discussed later. b) Lands

The CCP provides that where more than one claimant group utilizes common areas and claimants cannot agree on boundaries, resource access or land-sharing arrangements, no land will be granted to any group in the contested area until the dispute is resolved. Delgamuukw speaks of shared exclusivity as a basis for the establishment of Aboriginal title. In practice, under the BCTC process, Canada is following neither the CCP nor the Delgamuukw decision. For example, and without commenting on the merits of the arguments of either side, the Nisga’a treaty includes settlement land claimed by the Gitanyow. d) Laws of General Application

The CCP states that, unless otherwise specified in a settlement, laws of general application respecting hunting, fishing, trapping will apply on settlement lands. This is an extension of the “concurrent law model” Canada is seeking to impose in the negotiations. The model will allow all provincial laws, both in relation to Indians, and Indians lands, to apply to settlement lands. There is an argument to be made that the regulation of traditional harvesting on settlement lands falls within the “core of Indianness” which the provinces cannot invade, absent federal referential incorporation, even if the law is general in its application. As noted by Laskin C.J.: The fallacy in the position of the respondents in this case and, indeed, in that of all the intervenors, including the Attorney-General of Canada, is in the attribution of some special force or special effect to a provincial law by calling it a "provincial law of general application", as if this phrase was self- fulfilling if not also self- revealing. Nothing,

rr

On a related point, Canada’s fiscal mandate is more generous than that of the province. However, the cost-sharing agreement is based on a 50-50 formula. Consequently, Canada is prevented from tabling its full offer because, as a result of the cost-sharing agreement, Canada has given up its discretion to do so.

23

however, accretes to provincial legislative power by the generalization of the language of provincial legislation if it does not constitutionally belong there. ss

In addition, under the current state of the law, laws in relation to the use of land do not apply to section 91(24) lands. The current treaty model being negotiated under the CCP, at least in British Columbia, changes this general rule and requires that all provincial laws of general application apply to both Indians and Indian lands. This is contrary to the current state of the law, and may in fact be unconstitutional. e) Compensation The CCP states that monetary compensation may comprise various forms of capital transfer, including cash, resource revenue-sharing or government bonds. Delgamuukw provides for the payment of compensation in order to justify the infringement of Aboriginal rights. In practice, in British Columbia, Canada takes the position that treaties are not about correcting or compensating for past wrongs. Ra ther they are about future arrangements/relationships. As such, Canada will not discuss the concept of compensation. It will only discuss the provision of a capital transfer. This is an area where the practice is inconsistent with both the law and policy. Oddly enough, Canada is prepared to compensate third parties for any losses they may incur. f) Commercial harvesting

In Gladstone, the court agreed that there was a commercial right to harvest herring roe on kelp. The CCP does not provide for a commercial right as a part of the treaty, though Canada is prepared to allocate commercial licenses outside the treaty. g) Recreational Hunting The CCP states that Canada will not prejudice existing rights of non-Aboriginals, and that the rights of non-Aboriginal subsistence users and the general public to recreation, hunting and fishing on Crown lands will be protected. This seems inconsistent with the nature of Aboriginal title in Delgamuukw, which uses language of exclusivity. In any event, the protectio n of the rights of non-Aboriginal recreation hunters in a treaty seems to diminish the priority given to section 35 rights. tt It is also peculiar because the common law prevents recreational hunting on private lands, without consent. k) Public Access The CCP states that public access will be protected; that access to transportation routes in and through settlement areas must be provided for, and that holders of subsurface rights must have
ss tt

Natural Parents v. Superintendent of Child Welfare (1975), 60 D.L.R. (3d) 148 at 155 See particularly R. v. Adams, [1996] 3 S.C.R. 101

24

access to settlement lands for exploration, development and production of resources. This seems inconsistent with the language in Delgamuukw, which states that Aboriginal title provides exclusive use and occupation. l) Process for the Acceptance of Claims Acceptance of a claim is dealt with as a procedural matter in the CCP. The specific criteria for submitting a claim are on page 23 and provide that a Statement of Claim should provide: 1) 2) 3) 4) a statement that the claimant group has not previously adhered to treaty; a documented statement from the claimant group that it has traditionally used and occupied the territory in question and that this use and occupation continues; a description of the extent and location of such land use and occupancy, together with a map outlining the approximate boundaries; identification of the claimant group including the names of the bands, tribes or communities on whose behalf the claim is being made, the claimant’s linguistic and cultural affiliation, and approximate population figures for the claimant group.

In addition, the CCP states that DIAND will seek the advice of the Department of Justice (DOJ) as to the “acceptability according to legal criteria”. The concept of “acceptability” of a claim raises the issue of “recognition and affirmation” and a host of issues around proof of title. There is no public documentation around the legal criteria used by the DOJ. The discretion exercised by DIAND and the DOJ collectively to either accept or reject a claim is a highly contentious issue because of the consequences of a refusal, in the absence of agreed to criteria and an objective way of assessing those criteria. While the BCTC process has decided that it is better to have virtually no criteria, other than the submission of a Statement of Intent , this approach may also not be consistent with the law. D) Policy Changes

In acknowledging a need for reform, the federal government has tinkered with the parameters of the policy. There have been several important policy statements that have attempted to grapple with the changing legal landscape. A number of these policy statements were referred to in a letter dated December 22, 2000 from the Honorable Robert Nault, Minister of Indians Affairs and Northern Development, to Chief Arthur Manuel, Chairman of the Shuswap Nation Tribal Council. In his letter the Minister states: “Taken together, I would suggest that the above initiatives represent a significant evolution of, and from my perspective an improvement to, the Comprehensive Claims Policy as drafted in 1986.” This is somewhat of an overstatement. For the most part, the policy statements referred to in the Nault letter are intended to apply to the BCTC process. These include: A Statement of Aboriginal and Crown Title (April 29, 1998), A Statement on Interim Measures for Treaty Negotiations in British Columbia (April 28, 2000), A Statement on Certainty Principles For Treaty Negotiations in British Columbia (April 28,2000), British Columbia Capacity Initiative to enhance British Columbia First Nations’ abilities to 25

prepare for comprehensive land claims negotiations (January 27 1999) a framework policy and funding for Treaty Related Measures in British Columbia, and a revised Province-Wide Fisheries Strategy for Treaty Negotiations in British Columbia. As well, there is the federal inherent right policy entitled Aboriginal Self-government: The Government of Canada’s Approach to Implementation of the Inherent right and the Negotiation of Aboriginal Selfgovernmentuu , confirmed more recently under Gathering Strength. As well, there have been structural changes to the process of negotiating modern treaties that are specific to British Columbia. In addition to these, there are policy changes from time to time that result from different Final Agreements. For example, the CCP policy for certainty was altered significantly in the Nisga’a Final Agreement. There are also policy changes that don’t necessarily flow from any specific agreement. Rather, these flow from the evolution of politics. These include broad and fundamental policy changes that will be discussed later in this memorandum. The difficulty is that there is no single document in which any of these policy changes are expressed, nor are the policies all available to the public. As for the documents referred to in the Nault letter, the first is A Statement on Aboriginal and Crown Title. This a very broad statement of principles. The principles are important for political purposes because they acknowledge the existence of rights and title, confirm the requirements to conform to section 35, and acknowledge that treaty negotiations involve the honor of the Crown. At the same time, the principles are so broad, they are of no practical assistance in the negotiations. For example, Para 1 reiterates the content of section 35, and Para 4 reflects the finding in Calder that Aboriginal title is an independent right: 1. The parties recognize that Aboriginal title exists as a right protected under S.35 of the Constitution Act, 1982…[and] 4. As acknowledged by the Supreme Court of Canada, [A]boriginal peoples derive their [A]boriginal title from their historic occupation, use and possession of their tribal lands. Para 5 is helpful because it introduces the concept of the Crown’s honor by encouraging good faith negotiations. But this language is not new. However, in Luuxhon,vv both Canada and British Columbia have argued that there is no legal obligation to negotiate in good faith. 5. …[A]boriginal and Crown interests be reconciled through honorable, respectful and good faith negotiations… The Statement does not offer either substantive changes to the policy or practical steps for making treaty negotiations more effective. In fact, the Statement makes it clear that from the Crown’s point of view, only after Aboriginal title is proven, is it considered a legal interest in land. This language merely encourages claimants to return to the courts in order to prove their
uu

Aboriginal Self-Government: The Government of Canada’s Approach to Implementation of the Inherent right and the Negotiation of Aboriginal Self-government. Minister of Indian Affairs and Northern Development, Ottawa (1995) vv Gitanyow First Nation v Canada [1999] 3 C.N.L.R. at 89.

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title. The First Nations Summit has released a Discussion Paper on Compensation, which reflects a concern over the types of broad disingenuous statement s. Both Canada and B.C. have [made statements]… that they will only recognize Aboriginal title in specific instances if First Nations have proven it in the courts. This is precisely the approach the courts have actively discouraged the parties from taking, but it is the approach that First Nations are reluctantly concluding may be their only option. ww A Statement on Interim Measures for Treaty Negotiations in British Columbia is again a broad statement reflecting the indisputable need to have interim measures in treaty negotiations. The language is an attempt to reflect recommendation 16 of the British Columbia Claims Task Force Report. The importance of interim measures is acknowledged as the first point of the Statement: 1. The Principals support the timely negotiation of interim measures in accordance with recommendation 16 of the British Columbia Claims Task Force Report which states that: The parties negotiate interim measures agreements before or during the treaty negotiations when an interest is being affected which could undermine the process Para 2 and 3 articulate objectives for Interim Measures, including building relationships and to support and facilitate the treaty process and taking measures to protect lands and resources. 2. The objective of interim measures (including Treaty-Related Measures) is to support and facilitate the treaty process by, for example, building relationships/ partnerships, building capacity, providing tangible benefits, resolving contentious issues, and balancing interests. 3. There are a range of options for interim measures: capacity building initiatives, economic opportunities, governance - related initiatives, and measures to protect land and resources. Clearly interim measures do provide opportunities for First Nations, but BC First Nations maintain there have not been “effective” interim measures put into place. This assertion has a lot to do with how the parties view interim measures and what ‘effective” means. Many First Nations identify this lack of “effective” interim measures as a key concern. As the First Nations Summit explains: Canada and British Columbia have been unwilling to negotiate meaningful interim measures that would provide real protection for First Nations’ interests and benefits to them dur ing the negotiation process. This has meant that while First Nations are engaged in negotiations, they are witnessing the accelerated extraction of resources

ww

First Nations Summit: First Nations Summit Discussion Paper on Compensation. (Vancouver: First Nations Summit . 1999) at 3

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from their traditional territories without their consent and without receiving any tangible benefits from this economic activity. xx There are some practical benefits that have emerged as a result of the willingness of Canada to pursue interim measures in treaty negotiations. But these benefits do not meet with First Nations expectations, they are not related to the substance of the treaty policy, and they are not necessarily consistent with the law. At best, the interim measures that flow from the Statement on Interim Measures, are peripheral to the policy governing the substance of treaty negotiations. A Statement on Certainty Principles For Treaty Negotiations in British Columbia, is once again an extremely broad set of principles. The first Para reads: Certainty in a treaty is achieved by providing predictability and clarity in relation to: • • • Rights to ownership and the use of land in the area to which the treaty applies; The jurisdictions, authorities and the relationship of laws in the area to which the treaty applies; The First Nation’s rights recognized and affirmed by s. 35 of the Constitution, 1982.

The second principle is interesting because it provides: Certainty in a treaty is also achieved by providing for the resolution of claims of past infringements of Aboriginal rights, and by providing mechanisms for resolving disputes among the parties. It is a good sounding principle, but the fact is, in treaty negotiations in British Columbia, the Crown will not provide compensation for past infringements. In this regard, the principles seem to be more for public consumption than the articulation of a sound policy. The British Columbia Capacity Initiative is intended to improve First Nations’ ability to conduct negotiations and to participate in consultations over lands and resources. Generally speaking, the Capacity Initiative is intended to strengthen First Nations communities in preparation for treaty negotiations. The initative provides money necessary for development of strategic plans, traditional use studies, improved education programs and similar matters. yy The initiative is not a substantive change to the CCP. It is however a useful part of a tool kit that is being made available to First Nations in the treaty process in British Columbia. The Framework for Treaty Related Measures in British Columbia is essentially a re- invigorated version of the various approaches to interim measures seen in British Columbia over the last several years. The Treaty Related Measures (TRM’s) initiative does allow for some creative thinking around interim measures directly related to the outcome of treaties. Fir st Nations’ concerns over the TRM’s are similar to those respecting interim measures. Firstly, the scope of
xx

First Nations Summit: First Nations Summit Backgrounder on Issues Raised During the Meeting with the Honourable Gordon Wilson, Minister of Aboriginal Affairs. (Vancouver: First Nations Summit. 1999) at 2. yy Ibid., at 6-11.

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the measures available is limited. Second, the TRM’s are only available to those First Nations in a more advanced stage of negotiations. Third, the theory of funding behind at least some of the TRM’s is that they are a draw from the final outcome of a treaty. In other words, the costs associated with TRM’s are to be deducted from the final treaty package. The Province-Wide Fisheries Strategy for the Treaty Negotiations in British Columbia, in theory, actually addresses the substance of negotiations, and may be a helpful addition to the CCP. However, the document is not a public document and unavailable through the Access to Information Act. In addition to the policy statements and other initiatives that have attempted to reflect an updated approach to treaty negotiations, the British Columbia Treaty Commission process has developed several novel procedural changes intended to expedite negotiations. All of these process changes flow from the Report of the British Columbia Claims Task Force. zz Probably the most noteworthy is the acceptance of any claim from a First Nation in British Columbia. As opposed to claims that emerge outside of British Columbia, BC claimants need not show exclusive and uninterrupted use to a specific territory since time immemorial. aaa Rather, a First Nation merely submits a Statement of Intent to negotiate. The Statement of Intent automatically triggers the process, and the British Columbia Treaty Commission must convene a meeting of the parties to the negotiations within 45 days. Without getting into the merits of this process change, it is a considerable variation to what had become an overly cumbersome process under the CCP. In any event, however well meaning these overarching policy statements (and the changes incorporated into the BCTC process) may be, the do not amount to a substantive change to the CCP. The changes are by and large disingenuous political statements with no effect in substance, measures that fall short of what the courts have prescribed, or changes to process as opposed to substance.

Part II

Legal Analysis of Key CCP Imperatives

There is a glaring need to update the CCP and make it more consistent with the law. In some cases, the need is for technical changes, updating and clarification. In other instances, there is a need to change some fundamental policies that are at the root of the CCP. This is because some of the underlying policy imperatives are based upon a 20th century perspective that is unable to meet the requirements of a rapidly changing legal environment in the 21st century. This part of the analysis will focus on some of the key policy imperatives to determine if they are consistent with the law. a) Recognition The CCP model for negotiations involves the exchange or extinguishment of Aboriginal rights for rights negotiated pursuant to the policy. This exchange or extinguishment of rights is inconsistent with the concept of the recognition and affirmation of rights. The recognition and

zz aaa

Report of the British Columbia Claims Task Force (June 28, 1991) Refer to Criteria for Acceptance in the CCP, discussed in a later part of this memorandum

29

affirmation of Aboriginal and treaty rights is now an important constitutional imperative that was absent when the original claims policy was developed. When section 35 of the Constitution Act, 1982 “recognized and affirmed” Aboriginal rights it laid to rest the doctrine, applied by the BC Court of Appeal in Calder v. Attorney General for British Columbia bbb that Aboriginal rights are not enforceable in the courts: whatever rights the Nishga Indians may think they have under Indian title are not enforceable in the Courts as they have not been recognized and incorporated in the municipal law. I think it necessarily follows from those cases that this Court is without authority to pass upon the questionccc The precise status of the Court of Appeal decision in Calder, given the way in which the Supreme Court of Canada divided in Calderddd remained in doubt until the BC Court of Appeal ruled in R. v. Sparroweee that their previous decision was not binding, and the Supreme Court of Canada fffruled that extinguishment required a clear and plain intention. Many of those cases that did not apply the doctrine of recognition (that aboriginal rights had to be recognized by statute before they could be enforced in the Courts) used a social Darwinist approach to the question of Aboriginal title which achieved much the same ends. Two classic statements of that approach are as follows: The estimation of the rights of Aboriginal tribes is always inherently difficult. Some tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society. Such a gulf cannot be bridged. It would be idle to impute to suc h people some shadow of the rights known to our law and then to transmute it into the substance of transferable rights of property as we know them. In the present case it would make each and every person by a fictional inheritance a landed proprietor "ric her than all his tribe." On the other hand, there are indigenous peoples whose legal conceptions, though differently developed, are hardly less precise than our own. When once they have been studied and understood they are no less enforceable than rights arising under English law. ggg and: The extent to which English law is introduced into a British Colony, and the manner of its introduction, must necessarily vary according to circumstances. There is a great difference between the case of a Colony acquired by conquest or cession, in which there is an established system of law, and that of a Colony which consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions. hhh

bbb ccc

Calder v. A.G. British Columbia (1970), 13 D.L.R. (3d) 64 (B.C.C.A). at page 56. ddd [1973] SCR 313 eee R. v. Sparrow (1986), 9 BCLR (2d) 300 at pages 315-319. fff R. v. Sparrow [1990] 1 SCR 1075. ggg In re Southern Rhodesia, [1919] A.C. 211 at pages 233 and 234. hhh Cooper v. Stuart (1889) 14 App Cas 286 at page 291

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These are expressions of the doctrine of terra nullius which was rejected as a racist justification of colonization by the International Court of Justice in Western Sahara (Advisory Opinion) (1975) ICJR 12. Despite the colonial attitude behind such expressions however, the question of how the process of recognition was to be accomplished remained unanswered until the Supreme Court rendered its decisions in R. v. Van der Peet, [1996] 2 SCR 507, with respect to Aboriginal rights generally, and in Delgamuukw v. BC, [1997] 3 SCR 1010, with respect to Aboriginal title specifically. Delgamuukw laid out a three-part test for proof of Aboriginal title: In order to make out a claim for Aboriginal title, the Aboriginal group asserting title must satisfy the following criteria: (i) the land must have been occupied prior to sovereignty, (ii) if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation, and (iii) at sovereignty, that occupation must have been exclusive. iii The CCP does not address the question of recognition, except by negative implication. Any rights that may or may not exist, must be extinguished according to whatever language the parties can arrive at that will best express the type of certainty which the Crown seems to desperately need. The closest the CCP comes to explicitly recognizing rights and title is by the establishment of criteria for the acceptance of a claim and by requiring that all othe r rights be extinguished. This policy of non-recognition is an extension of social Darwinism and the doctrine of terra nullius, and is inconsistent with the realities of the dictates of section 35 which recognizes and affirms rights. b) Criteria for Acceptance A key component of the current CCP continues to be the criteria for acceptance. However, the criteria for acceptance are not actually discussed in the CCP. The CCP outlines the basic elements of what must be included in a statement of claim. It then states that the claim will be measured against legal criteria for acceptance, by the Department of Justice. Under the CCP, claimants do not know what the legal criteria are. There are however criteria outlined in a document entitled Comprehensive Claims (Modern Treaties) in Canada (March 1996) available on the Indian Affairs website which appear to be the acceptability guidelines. According to this document, “The federal government will accept the claim if the statement confirms that the group claiming [rights and title] meets the following criteria:” These criteria are: 1. The Aboriginal group is, and was, an organized society. 2. The organized society has occupied the specific territory over which it asserts Aboriginal title since time immemorial. The traditional use and occupancy of the territory must have been sufficient to be an established fact at the time of assertion of sovereignty by European nations.

iii

Delgamuukw at para. 143.

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3. The occupation of the territory by the Aboriginal group was largely to the exclusion of other organized societies. 4. The Aboriginal group can demonstrate some continuing current use and occupancy of the land for traditional purposes. 5. The group's Aboriginal title and rights to resource use have not been dealt with by treaty. 6. Aboriginal title has not been eliminated by other lawful means. Some of the criteria above are a reflection of the test that had been developed in the Baker Lake Case jjj. Other criteria seem to be based upon the 1981 policy. Annex A to Cabinet Document No. 627/665-80RDC, dated 21 January, 1981 kkk provides that: The claimant group must have established traditional use and occupancy of the area being claimed, [and] Claims based on traditional use and occupancy will not be accepted for negotiation where the native title has been superseded by law or otherwise extinguished. In so far as the CCP purports to deal with issues of Aboriginal title in Canada, its criteria must be brought into line with the tests laid out by the court. In this regard the policy, whether the 1981 criteria, or the requirements that must be met for submitting a claim under the CCP, or the criteria outlined in the March 1996 document, cries out for revision. Each of the criteria requires examination in order to bring more sharply into focus the discrepancies between them and the tests in Delgamuukw. 1. The Aboriginal Group Is, And Was, An Organized Society Delgamuukw is conspicuously silent with respect to the requirement, drawn from Hamlet of Baker Lake v. Minister of Indian Affairs and Northern Developmentlll that an Aboriginal people live in an organized society. The test involves a kind of cultural evaluation which has little to do with the fact that the land was occupied, and a lot to do with the social Darwinism of earlier cases. This is even more apparent since the concept of a disorganized society is a contradiction in terms. A disorganized society is no society at all. mmm It is one thing to identify a society to which Aboriginal title belongs. It is another to impose a requirement of organization upon them. This criterion has no part in the law of Aboriginal title, and should play no part in the CCP. 2. The organized society has occupied the specific territory over which it asserts Aboriginal title since time immemorial. The traditional use and occupancy of the territory must have been sufficient to be an established fact at the time of assertion of sovereignty by European nations

This test should be compared with the requirement that the land be occupied prior to sovereignty, as stated by Lamer C.J. in Delgamuukw. The CCP has placed additional hurdles for use and
jjj

See Hamlet of Baker Lake v. Minister of Indian Affairs And Northern Development (1979) 107 D.L.R. (3rd) 513. Obtained through the Access to Information Act lll (1979), 107 D.L.R. (3d) 513 at 542. mmm Westlake, Chapters on the Principles of International Law, (Cambridge, Cambridge University Press, 1894, Reprinted Littleton: Fred Rothman and Co. 1982) pages 2 and 3.
kkk

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occupancy. These hurdles are: i) the establishment of occupation since time immemorial; ii) the description of use and occupancy as traditional; and iii) the concept of sufficiency of occupation. i) Time Immemorial The requirement that occupation be established since time immemorial is borrowed from the test for proof of customary rights in the English common lawnnn and time immemorial has a specific meaning in English common law, being the time before 1189, the beginning of the reign of Richard I ooo , which date is of doubtful relevance to Canadian Courts. This test was adapted by the trial judge in Delgamuukw into a test of “long long use” but the Supreme Court of Canada denied any obligation on the part of those asserting title to go beyond the date of sovereignty: in the context of Aboriginal title, sovereignty is the appropriate time period to consider for several reasons. First, from a theoretical standpoint, Aboriginal title arises out of prior occupation of the land by Aboriginal peoples and out of the relationship between the common law and pre-existing systems of Aboriginal law. Aboriginal title is a burden on the Crown's underlying title. However, the Crown did not gain this title until it asserted sovereignty over the land in question. Because it does not make sense to speak of a burden on the underlying title before that title existed, Aboriginal title crystallized at the time sovereignty was asserted. Second, Aboriginal title does not raise the problem of distinguishing between distinctive, integral Aboriginal practices, customs and traditions and those influenced or introduced by European contact. Under common law, the act of occupation or possession is sufficient to ground Aboriginal title and it is not necessary to prove that the land was a distinctive or integral part of the Aboriginal society before the arrival of Europeans. Finally, from a practical standpoint, it appears that the date of sovereignty is more certain than the date of first contact. It is often very difficult to determine the precise moment that each Aboriginal group had first contact with European culture. ppp (emphasis added) The point about the Crown not having its title until the assertion of sovereignty is particularly relevant. If Aboriginal title is established at the date of sovereignty, no Crown title could possibly exist which could challenge the title of the Aboriginal people. In any case, it should also be noted that the requirement for occupation since time immemorial is inconsistent with the requirement that the occupation is “an established fact at the time of assertion of sovereignty.” The use of two dates in the formulation of the time requirement under the CCP reflects a certain sloppiness of thought, unless wha t is meant is that if immemorial occupation is shown, additionally that occupation must have existed at the date of sovereignty.
nnn ooo

See for example Hammerton v. Honey (1876) 24 W.R. 603 As explained in Angus v. Dalton (1877), 3 Q.B.D. 85 at 103-104, originally 1189 was fixed as the limitation period for the bringing a writ of right, under the Statute of Westminster, 1275. As time passed the judges developed the presumption that if proof was carried back as far as living memory would go, it was presumed that the right existed since 1189. Since no Crown granted titles in Canada existed prior to European Sovereignty, one might ask whether it can be argued that time immemorial in Canada should mean time before the establishment of that Sovereignty. ppp Delgamuukw at para. 145.

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This might be an awkward way of expressing a sort of continuity requirement, but it is inconsistent with the law as understood at the time the policy was formed. qqq ii) The Description of Use and Occupancy as Traditional The use of the word “traditional” in this criterion introduces a measure of uncertainty into the policy. “Traditional” may be used here as a synonym for “historical” but given the specific legal context of its use, traditional may reflect a limitation on the type of occupation and use of land which the Canada recognizes as sufficient to ground a claim under the CCP. If what is meant is that only traditional uses of land will be recognized under the policy, this reflects a misunderstanding of the law of Aboriginal title. First of all, it is clear that occupation can be established not only by actual physical presence on the land, but also by reference to the Aboriginal perspective, including the Aboriginal system of laws which applied on the land. rrr Furthermore, if traditional occupation alone is sufficient to ground a claim, there is a fundamental misconception as to the nature of Aboriginal title. The rights of use of land conferred by Aboriginal title are not restricted to traditional uses. As stated in Delgamuukw: the content of Aboriginal title is not restricted to those uses which are elements of a practice, custom or tradition integral to the distinctive culture of the Aboriginal group claiming the right. sss If the right conferred is not so restricted, it makes little sense to exclude evidence of nontraditional use and occupation in the CCP. As Lamer CJ stated: I should also note that there is a strong possibility that the precise nature of occupation will have changed between the time of sovereignty and the present. I would like to make it clear that the fact that the nature of occupation has changed would not ordinarily preclude a claim for Aboriginal title, as long as a substantial connection between the people and the land is maintained. The only limitation on this principle might be the internal limits on uses which land that is subject to Aboriginal title may be put, i.e., uses which are inconsistent with continued use by future generations of Aboriginals. ttt This is particularly important given that the process itself requires consideration of present occupation as well as historical occupation, which will be discussed below. iii) Sufficiency of Occupation Macfarlane J.A. used sufficiency of occupation in the B.C. Court of Appeal decision in Delgamuukw to import a time requirement into the concept of occupation. uuu He did this in order to say that the trial judge did not err in adopting a “long long user” requirement into the test for Aboriginal rights, by which the trial judge seemed to mean occupation from time immemorial. If “long long user” means “time immemorial”, this test was not adopted by the Supreme Court of
qqq rrr

See Baker Lake, Delgamuukw at para. 148. sss at para. 124. ttt at para. 154. uuu Delgamuukw v. B.C., [1993] 5 WWR 97 at paras. 41 and 148.

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Canada, and should play no part in the criteria under the CCP. Lamer C.J. uses sufficiency of occupation as a concept related to exclusivity, a way of measuring the degree of attachment of a group to the land: The picture which emerges from Adams is that the Aboriginal rights which are recognized and affirmed by s. 35(1) fall along a spectrum with respect to their degree of connection with the land. At the one end, there are those Aboriginal rights which are practices, customs and traditions that are integral to the distinctive Aboriginal culture of the group claiming the right. However, the "occupation and use of the land " where the activity is taking place is not "sufficient to support a claim of title to the land " (at para. 26 (emphasis in original)). Nevertheless, those activities receive constitutional protection. In the middle, there are activities which, out of necessity, take place on land and indeed, might be intimately related to a particular piece of land. Although an Aboriginal group may not be able to demonstrate title to the land, it may nevertheless have a site-specific right to engage in a particular activity. I put the point this way in Adams, at para. 30: Even where an Aboriginal right exists on a tract of land to which the Aboriginal people in question do not have title, that right may well be site specific, with the result that it can be exercised only upon that specific tract of land. For example, if an Aboriginal people demonstrates that hunting on a specific tract of land was an integral part of their distinctive culture then, even if the right exists apart from title to that tract of land, the Aboriginal right to hunt is nonetheless defined as, and limited to, the right to hunt on the specific tract of land. [Emphasis added.] At the other end of the spectrum, there is Aboriginal title itself. As Adams makes clear, Aboriginal title confers more than the right to engage in site-specific activities which are aspects of the practices, customs and traditions of distinctive Aboriginal cultures. Sitespecific rights can be made out even if title cannot. What Aboriginal title confers is the right to the land itself. vvv As long as the occupation indicates an “intention and capacity to retain exclusive control”, occupation is sufficient for the purposes of proof of Aboriginal title. The activities cannot be random or accidental, but they need not be immemorial. The American case law is helpful on this point. “While on the one hand the occupation must be long enough to transform conquered territory into domestic property, on the other hand 60 years is certainly a long time for the purposes of establishing Aboriginal title.” www A distinction should be made between the sufficiency of evidence establishing occupation, and sufficiency of occupation itself. As Lamer C.J. said in Delgamuukw, “occupation is proof of possession in law” xxx while as Hall J. noted in Calder, “Possession is of itself at common law proof of ownership.” yyy On the other hand, the evidence may not be sufficient to make out a claim for title, but that would not preclude the possibility of Aboriginal rights intimately
vvv

Delgamuukw at paras. 138-139. United States v. Seminole Indians 180 Ct. Cl. 375. xxx at para. 114 yyy at page 185
www

35

connected with the land. zzz Since the CCP purports to extend to “land related rights” (page 21) its criteria are under inclusive since the only land related rights considered are title-based rights. In other words, the criteria should be altered to include not just claims to title, but claims to the exercise of rights that fall within the Adams spectrum of rights. 3. The Occupation of the Territory by the Aboriginal Group Was Largely to the Exclusion of Other Organized Societies.

Exclusivity is a requirement for proof of title under Delgamuukw, but as noted earlier, the failure of an Aboriginal group to establish exclusivity does not preclude the existence of other land related rights. It may even be possible to establish a shared exclusive title. As said in Delgamuukw in discussing exclusivity: In their submissions, the appellants pressed the point that requiring proof of exclusive occupation might preclude a finding of joint title, which is shared between two or more Aboriginal nations. The possibility of joint title has been recognized by American courts: United States v. Santa Fe Pacific Railroad Co., 314 U.S. 339 (1941). I would suggest that the requirement of exclusive occupancy and the possibility of joint title could be reconciled by recognizing that joint title could arise from shared exclusivity. The meaning of shared exclusivity is well-known to the common law. Exclusive possession is the right to exclude others. Shared exclusive possession is the right to exclude others except those with whom possession is shared. There clearly may be cases in which two Aboriginal nations lived on a particular piece of land and recognized each other's entitlement to that land but nobody else's… I should also reiterate that if Aboriginals can show that they occupied a particular piece of land, but did not do so exclusively, it will always be possible to establish Aboriginal rights short of title. These rights will likely be intimately tied to the land and may permit a number of possible uses. However, unlike title, they are not a right to the land itself. Rather, as I have suggested, they are a right to do certain things in connection with that land. … …Hence, in addition to shared title, it will be possible to have shared, nonexclusive, site-specific rights. In my opinion, this accords with the general principle that the common law should develop to recognize Aboriginal rights (and title, when necessary) as they were recognized by either de facto practice or by the Aboriginal system of governance. It also allows sufficient flexibility to deal with this highly complex and rapidly evolving area of the law. aaaa 4. The Aboriginal Group Can Demonstrate Some Continuing Current Use and Occupancy of the Land for Traditional Purposes.

There is no requirement for continuing current use in order to establish Aboriginal title. Delgamuukw makes it clear that the relevant time of occupation is the date of sovereignty, and so long as the title has not been extinguished, it should be sufficient to support a claim. I would note that the policy as framed is actually divisive in that there may be current users of land who cannot claim title, on land where Aboriginal title may actually belong to another group.

zzz

aaaa

at para. 159. The passage will be considered more extensively under the requirement for exclusivity. at paras. 158-159.

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5.

The Group's Aboriginal Title and Rights to Resource Use Have Not Been Dealt with by Treaty.

This criterion presupposes that Aboriginal title and rights have been dealt with by treaty, yet the situation in Canada is that Aboriginal peoples who have treaties invariably do not accept that treaties surrendered or extinguished their title and rights. While the written text in many treaties often appears to support the view that the treaties have dealt with the issue of Aboriginal title, Delgamuukw v. BC, [1997] 3 SCR 1010 and R. v. Marshall, [1999] 3 S.C.R. 456 call for the meaning of those treaties to be re-examined in light of the oral traditions of the Aboriginal peoples surrounding the treaties. If the oral traditions are given parity with the written text, then there is a live question as to whether in any of the treaties title and rights have been dealt with. This is quite apart from issues which go to the validity of the treaties themselves, such as whether or not there was a meeting of the minds between the Aboriginal peoples and the Crown, discussed in Re Paulette’s Application, [1973] 6WWR 97 at page146. In this respect see Simon v. the Queen, [1985] 2 S.C.R. 387 where the Supreme Court said, “It may be that under certain circumstances a treaty could be terminated by the breach of one of its fundamental provisions.” At a fundamental level, given these problems as to the interpretation and validity of treaties, this criterion denies to treaty peoples parity of treatment with non treaty peoples. Such a lack of parity of treatment in the context of s. 88 of the Indian Act drew the following remark from Lamer C.J. in R. v. Cote, [1996] 3 S.C.R. 139: on the face of s. 88, treaty rights appear to enjoy a broader protection from contrary provincial law under the Indian Act than under the Constitution Act, 1982. Once it has been demonstrated that a provincial law infringes "the terms of [a] treaty", the treaty would arguably prevail under s. 88 even in the presence of a well- grounded justification. The statutory provision does not expressly incorporate a justification requirement analogous to the justification stage included in the Sparrow framework. But the precise boundaries of the protection of s. 88 remains a topic for future consideration. I know of no case which has authoritatively discounted the potential existence of an implicit justification stage under s. 88. In the near future, Parliament will no doubt feel compelled to re-examine the existence and scope of this statutory protection in light of these uncertainties and in light of the parallel constitutionalization of treaty rights under s. 35(1). 6. Aboriginal Title Has Not Been Eliminated by Other Lawful Means In this part of the CCP the federal government adopts a broad notion as to what could constitute lawful means to eliminate Aboriginal title. In this respect the federal policy purports to follow the reasons of Judson J. in Calder v. AGBC at page 167: the sovereign authority elected to exercise complete dominion over the lands in question, adverse to any right of occupancy which the Nishga Tribe might have had, when, by legislation, it opened up such lands for settlement, subject to the reserves of land set aside for Indian occupation. The Supreme Court has since, in Sparrow and in Delgamuukw, adopted expressly the reasons of Hall J. in Calder, that extinguishment requires clear and plain intention of the sovereign. Further as noted earlier, since the relevant date for the establishment of Aboriginal title is the date of 37

sovereignty, there is no issue as to abandonment of Aboriginal title. See the reasons of Lambert J.A. at paras. 848 to 852. Furthermore, since as Sparrow notes, the onus is on the Crown with respect to proof of extinguishment, it should not play any part in the criteria which an Aboriginal people must meet in order to be accepted for a claim. If the federal government wishes to deny a claim on the basis of an extinguishment, the government should issue reasons which deny the claim on that basis, and that decision should be subject to review. Such review cannot be done by an agency of the Crown because of the conflicting interests under review. This may be where an independent claims Tribunal can be of some use. c) Certainty/extinguishment

The current CCP provides the following options for achieving certainty: (1) the cession and surrender of [A]boriginal title throughout the settlement area in return for the grant to the beneficiaries of defined rights in specified or reserved areas and other defined rights applicable to the entire settlement area; or (2) the cession and surrender of [A]boriginal title in non-reserved areas, while • allowing any [A]boriginal title that exists to continue in specified or reserved areas; • granting beneficiaries defined rights applicable to the entire settlement area These provisions were evidently among the fundamental changes between the old policy which required extinguishment of all rights and title and the current policy. In fact, the concept of extinguishment remains the same, except for reserve lands and certain settlement lands, where the CCP acknowledges that Aboriginal title may continue. However, in the context of the British Columbia Treaty Process, even this option is not available. It is not available because both the provincial and federal Crown insist that all settlement lands become “fee simple lands”, and that Aboriginal title lands, or any lands that might fall under the category of “lands reserved for the Indians” be relinquished. bbbb Consequently, even the modest and almost inconsequential gains accomplished between 1981 and 1987 have been abandoned in British Columbia. Under the CCP, there is no requirement for the surrender or extinguishment of non- land based rights. The policy is clear in its requirements for the surrender of Aboriginal title, and the policy itself discusses the release of rights “related to the use of and title to lands and resources”. The CCP also makes it clear that other rights “to the extent they are defined through the constitutional process or recognized by the courts, are not affected by the policy.” However the Nisga’a Final Agreement changed this by requiring that all rights, whether land based or not be modified and released. The Nisga’a Final Agreement went even one step further by requiring that all future claims with respect to section 35 rights (whether land based or not) be released. It is not clear, at least in the context of British Columbia, if the current requirements for the certainty provisions in future treaties are those in the CCP, or those reflected in the Nisga’a Final Agreement, or those in other models being developed in British Columbia and elsewhere.

bbbb

See General Provisions in both the Sliammon and Nu Cha Nulth (sp) Agreements in Principle

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Some light has been shed on this by a document entitled Canada’s Approach to Section 35 Rights. cccc While the authenticity of the document is uncertain, it would at least appear that the approach now being recommended by Canada involves a non-assertion of land based rights other than those in the treaty. As a fall back, the Aboriginal group would provide a release of land base rights, if the non-assertion provisions do not achieve their goal. In addition, the Aboriginal group would have to provide a release of any claims for past infringements of land based rights. With respect to non- land based rights, that is, the inherent right to self- government, the recommended approach involves the application of principles that would end up creating jurisdictional certainty. The approach recommends against seeking a complete release from past infringements of the inherent right. The rationale for this is that the federal inherent right policy is silent on the question of a release from past infringements, preferring predictability and jurisdictional clarity rather than a full and final release. The extinguishment of rights and title throughout the traditional territories of First Nations is one of the most perplexing aspects of modern treaty negotiations. This has been the model that formed the basis of the certainty provisions in the historic treaty process, and continues to be the current model, notwithstanding new language which describes the process of extinguishment as a modification and release of rights. dddd The application of a model that has remained virtually unchanged since the negotiation of the numbered treaties, is problematic. These problems arise as a result of the standards imposed on the Crown as a result of the fiduciary obligation. Firstly, certain obligations arise because of, among other things, the inalienable nature of Indian lands flowing from the principles enunciated in the Royal Proclamation. In Guerin, the court indicated that the: “Crown as a fiduciary depends upon the further proposition that the Indian interest in the land is inalienable except upon a surrender to the Crown … … The surrender requirement. and the responsibility it entails are the source of the distinct fiduciary obligation owed by the Crown to the Indians” eeee. When the Indian lands are surrendered, the fiduciary relationship crystallizes into a fiduciary duty owed by the Crown. The fiduciary duty owed includes a duty of absolute loyalty to the beneficiary. The duty was described in Hodgkinson v. Simms, [1994] 3 S.C.R.. At the heart of the fiduciary relationship lie the dual concepts of trust and loyalty. This is first and best illustrated by the fact that the fiduciary duties find their origin in the classic trust where one person, the fiduciary, holds property on behalf of another, the beneficiary. In order to protect the interests of the beneficiary, the express trustee is held to a stringent standard; the trustee is under a duty to act in a completely selfless manner for the sole benefit of the trust and its beneficiaries (Keech v. Sandford (1726), 25 E.R. 223) to whom he owes "the utmost duty of loyalty". (Waters, Law of Trusts in Canada (2nd ed. 1984), at p. 31). And while the fiduciary relationship is no longer confined to the classic trustee-beneficiary relationship, the underlying requirements of complete trust and utmost loyalty have never varied.
cccc

Canada’s Approach for Dealing with Section 35 Rights: Approach for Dealing with Section 35 Rights (Ministerial Recommendation to Cabinet-November 24, 2000) dddd See certainty provisions of Nisga’a Final Agreement eeee Guerin at page 376

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The fiduciary duty is no less onerous when constitutionally protected rights are being extinguished. There are serious doubts about whether the extinguishment provisions expressed in the current CCP meet the underlying requirements of trust and loyalty owed by the Crown to Indian people. In addition to the Guerin type fiduciary duty flowing from the sui geneis nature of Indian lands, the fiduciary obligation has been incorporated into the section 35 justification test. Without getting into the details of the justification test, if the Crown can establish that a proposed infringement is justifiable, the Crown must then consider whether there has been as little infringement as possible. In this context, the question of compensation inevitably emerges. The court in Sparrow put it this way: Within the analysis of justification, there are further questions to be addressed, depending on the circumstances of the inquiry. These include the questions of whether there has been as little infringement as possible in order to affect the desired result; whether, in a situation of expropriation, fair compensation is available; and, whether the Aboriginal group in question has been consulted with respect to the consultation measures being implemented ffff. Clearly, extinguishment is not the least intrusive invasion of the right. In fact, it is difficult to contemplate an infringement that is more intrusive than extinguishment. Under the Sparrow test, the Crown appears then to be under an obligation to find a less intrusive way of dealing with the question of certainty. In addition, the answers to the remaining questions referred to above simply lead to the conclusion that the Crown’s conduct, in relation to the extinguishment provisions, is inconsistent with the dictates of section 35 and the conduct of a fiduciary. Much work has already been done on the question of certainty and there is no need to attempt to duplicate that work here. The Royal Commission on Aboriginal Peoples published a report on certainty entitled “Treaty Making In the Spirit of Co-Existence” gggg which provides a detailed analysis of the problems associated with the certainty paradigm preferred by governments and third parties. The report also proposes solutions that would try to balance both the need to recognize and affirm the rights of Aboriginal peoples in a manner consistent with the language of section 35 of the Constitution Act, 1982, while at the same time, address the needs of governments and industry. Shortly after, the Hon. A.C. Hamilton released his report on the same subject. hhhh Both these reports agree the fundamental problem is that there are two diametrically opposed views of what certainty is and how it should be achieved. Both reports also seek to eliminate the concept of “extinguishment” from the certainty paradigm.

ffff

Sparrow, at page 1119 Treaty Making in the Spirit of Co-Existence: An Alternative to Extinguishment (Ottawa, Supply and Services Canada, 1995). hhhh A New Partnership: Report of Hon. A.C. Hamilton, Fact Finder for Minister of Indian Affairs and Northern Development (Ottawa, Public Works and Supply and Services Canada, 1995).
gggg

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If the certainty provisions of modern treaties are to conform to the law as articulated in the post1982 context, the current approach to certainty, as outlined in the CCP will have to change. All aspects of the extinguishment model must be eliminated. Any certainty model must respect the fundamental values and beliefs of the particular Aboriginal community, and reflect the recognition and affirmation language of section 35, and be in keeping with the Crown’s fiduciary obligations. Methods will have to be found that are as least intrusive as possible in order to conform to the dictates of section 35. In addition, the Crown in right of Canada is going to have to learn to honor its fiduciary obligation of utmost loyalty to First Nations and resist pandering to the whims of provincial governments and third parties. Unless this is done, whatever certainty model is developed will be inconsistent with the law and therefore a further source of chaos. c) Land Tenure and Section 91(24) While not clearly expressed as a part of the CCP, one of the underlying features of the current treaty model, at least in southern Canada, is that treaty settlement lands are to become fee simple lands, and outside the scope of section 91(24). The recent Agreement in Principle with the Sliammon First Nation states in Para 10 of Chapter 2: “After the Effective Date, there will be no “lands reserved for the Indians” within the meaning of the Constitution Act, 1867 for Sliammon and there will be no “reserves” as defined in the Indian Act for Sliammon.” Similar provisions are found in the Agreement in Principle with the Nuu-Chah-Nulth Tribal Council There are several reasons favoring the classification of settlement lands as fee simple lands. The fee simple estate is the greatest estate that can exist in law and is, in practice, treated as absolute ownership. The word fee comes from the word feudal, and thus grants of fee simple lands come from the Crown. In practice, it means that upon the death of the person having the interest in such lands, the lands would, at common law, descend to the heir, but the underlying title always vests with the Crown. The word “simple” means that the interest is capable of passing to the general heir or heirs, and not restricted to a specific class of heirs, unlike a fee tail iiii. An estate describes the length of time an interest in land is held. A fee simple estate means the interest is held, without limitation or restraint as to alienation for a possibly unlimited length of time. Black’s says this about a fee simple estate: (from the Crown, without restriction) “A fee simple absolute is an estate limited absolutely to a man and his heirs and assigns forever without limitation or condition. An absolute or fee simple estate is one in which the owner is entitled to the entire property, with unconditional power of disposition during his life, and descending to his heirs and legal representatives upon his death intestate. Such estate is unlimited as to duration, disposition and descendibility” Blacks’s Law Dictionary, 5th Edition at 554.

iiii

See – Mendes da Costa Belfour, Property Law, Edmond-Montgomery (1982) at page 647

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For the most part, all ungranted lands in the Provinces vest in the provincial Crown pursuant to Section 109 of the Constitution Act 1867, “subject to any trusts… … and interests other than that of the Province”. Aboriginal title has been held to be a trust or interest other than that of the Province. Indian reserves are within the federal government’s jurisdiction, but the underlying or allodial title continues to be, for the most part, with the provincial Crown. Once there is a “surrender” under the Indian Act, the Province then receives the full unencumbered beneficial interest in reserve lands. On Indian reserves, the allodial title is vested in the province, while jurisdiction rests with the federal government pursuant to section 91(24) of the Constitution Act, 1867. Section 91(24) provides that Canada has jurisdiction over Indians and lands reserved for the Indians. It was originally thought that the use of the word “lands” in section 91(24) included only those lands that had been formally set aside as Indian reserves. However, the courts have concluded that “lands reserved for the Indians” includes jurisdiction over all lands reserved in any way for the use and benefit of Indians, including land reserved under the Royal Proclamation, Indian reserves, Aboriginal title lands and any other lands set aside for the use and benefit of Indians. Accordingly, the province can only have the full beneficial interest in such lands after a formal surrender of the Indian interest in such lands. Section 91(24) does not address the issue of allodial title. It addresses the issue of jurisdiction. As lands are held or reserved in some way for Indians, the federal government has the legislative jurisdiction for such lands, but the provincial government continues to have the allodial or underlying title. This has been the law since confederation. However, the treaty model being pursued in British Columbia would have treaty lands as fee simple lands and no longer under section 91(24). The British Columbia treaty model does not challenge the general principle that allodial title is vested with the province. In other words, the provincial Crown would continue to hold the allodial title, and the settlement lands would be fee simple lands, with several important differences. One of these differences is that if in some way the lands eventually revert to the Crown, the Crown would convey such lands back, at no costs. Another difference is that once lands are sold, once the entire interest in such lands is transferred through a formal disposition, such lands continue to be settlement lands. Also, the treaty settlement lands are held for (owned by) the First Nation, for the benefit of that Nation, and protected pursuant to section 35. These and other differences set the settlement lands apart from normal fee simple lands. However, the underlying principle seems to be that settlement lands are intended to be fee simple lands, and settlement lands are excluded from the federal category of “lands reserved for the Indians”. This allows provincial land use laws to apply to settlement lands jjjj. It should be noted that the broad fiduciary obligation between Canada and Aboriginal peoples flows from the nature of Indian lands and the discretion that Canada exercises over those lands. Canada holds section 91(24) lands for and on behalf of the Indians. Indian lands can only be alienated or sold to the federal government. Through treaties, it would appear that federal
jjjj

See generally the Nisga’a Agreement, particularly Chapter 3, clauses 1-8. Similar provisions have been included in the Sliammon and the Nuu-Chah-Nulth Agreements in Principle.

42

government is seeking to eliminate this special Crown-Indian relationship which stems from the Royal Proclamation and the sui generous nature of Indian lands. The position being adopted by the Crown seems to be largely driven by the provinces. The provincial position comes from a desire to see provincial land use laws apply to settlement lands acquired through treaty negotiations. Under the existing constitutional regime, the provinces cannot regulate the use of “lands reserved for the Indians”. From a provincial perspective, this creates a legislative void that the province would like to occupy. This would allow provincial land use laws to apply to settlement lands and would allow for a consistent legislative regime in the province in for land use regulations and land use planning. From a provincial point of view, this is not an unreasonable objective. But, structuring arrangements that would change the nature of Indian lands, including settlement lands under a modern treaty, to lands other than “lands reserved for the Indians” is inconsistent with the law. Over the years, the courts have looked at the meaning of the words “lands reserved for the Indians” in section 91(24) of the Constitution Act, 1867, and some aspects of this now appear settled. In St Catherine’s milling and Lumber Co v the Queenkkkk the court concluded that the words used in section 91(24) are “sufficient to include all lands reserved, upon any terms or conditions, for Indian occupation.” This passage by Lord Watson speaking for the Privy Council in St Catherine’s Milling and Lumber Co. was quoted with approval by former Chief Justice Lamer, in Delgamuukw. Consequently, with what is fairly clear and consistent direction from the courts, it may be difficult to envision that settlement lands or core lands held for an Indian community pursuant to a treaty would not be section 91(24) lands. And, this is not just a conceptual problem. It raises some fundamental constitutional issues which go to the core of the treaty model being pursued in British Columbia and elsewhere. There seem to be, at a minimum, some fundamental questions that need clarification around the current treaty model. If the settlement lands are not “lands reserved for the Indians”, can lands protected by section 35 and included as “settlement lands” be fee simple lands? Is there a risk that the creation of settlement lands as fee simple lands is constitutionally improper? Assuming the answer is yes, is there a better way to hold treaty settlement lands to meet all the parties objectives? Should settlement lands be Aboriginal title lands, with allodial title vesting in First Nations? If indeed settlement lands ought to be lands that fall within the jurisdiction of Canada, then the current model does not do this. We should be certain that the model that is being pursued does not stray from basic constitutional principles related to Indian lands. At a minimum, the CCP should be updated to reflect the intent of the federal Crown. Is it the intent of the federal Crown that treaty settlement lands no longer be section 91(24) lands and that the fiduciary obligation be accordingly diminished? If so, then the policy has changed fundamentally since its inception when it was clear that the “Federal jurisdiction and responsibility would continue under section 91(24) of the BNA Act – “Indians and Lands reserved for the Indians”.” It is also clear that this policy is inconsistent with the key elements of the special Crown-Indian relationship that has been in place for centuries, based on centuries of law.
kkkk

St Catherine’s Milling and Lumber Co v the Queen (1888), 14 A.C. 46 at 59.

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d) Compensation An odd paradox arises in relation to the compensation debate and modern treaties. In the British Columbia context, the Crown will not pay compensation as part of a final settlement because the costs would likely be prohibitive, notwithstanding language to the contrary in the CCP. In negotiations, the capital amount payable is considered to be a part of a political deal, and not compensation owning for past breaches or for the values of lands ceded. At the same time, in the certainty provisions that form part of the Final Agreement, the Crown insists on a release for future claims to compensation. The problem is exacerbated when the policy provides that third parties will be compensated for any losses directly attributed to a Final Agreement. The Crown’s position of not addressing compensation in the claims flies in the face of the Crowns fiduciary duty of loyalty to Indian people and the requirement that compensation will ordinarily be required when Aboriginal title is infringed. The original claims policy was developed at a time when compensation for Aboriginal rights and title was considered inappropriate, and this may explain the current thinking around not addressing compensation in the context of the negotiations. On this matter, the British Columbia Court of Appeal explained: whatever rights the Indians in British Columbia possessed which have not been specifically recognized and confirmed by treaty or agreement of the Crown may be extinguished by the Crown without compensation and without the consent of the Indians. llll However, the courts have since changed their views on the question of compensation and the CCP has not kept in step, at least in practice. The policy identifies the types of monetary compensation which will be available, specifies that the amounts will be clearly defined, that no advance compensation will be available before final settlements. The policy also provides that outstanding debts will be deducted from the final settlements. The approach is purely mechanical, and quite apart from concerns this approach raises about how negotiations sho uld be structured in light of the fiduciary non adversarial relationship between First Nations and the Crown, which will be discussed later, there is a seeming lack of awareness of issues which are of central concern to First Nations. Primarily the policy fails to grasp that the entitlement to compensation is a legal entitlement and not simply a political one. At the time the policy was composed, it was still possible to site the words of Lord Watson in St. Catherine’s Milling and Lumber Co. v. the Queenmmmm describing “the tenure of the Indians [as] a personal and usufructuary right, dependent upon the good will of the Sovereign,” as providing a good reason to treat Aboriginal peoples entitlement to compensation as minimal. The words convey the impression that Aboriginal title is in the nature of a mere license which may be terminated at any time the good will of the sovereign falters, and without giving any legal basis for a claim to be made for compensation. Compensation would be also a matter of the good will of the sovereign.
llll

mmmm

Calder, (B.C.C.A.) at page 80. (1888), 14 A.C. 46 at page 54.

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Delgamuukw, however, picked up on comments concerning compensation in R. v. Sparrow, and said that compensation must ordinarily be payable if infringements of Aboriginal title are to be justified. The legal issues here are many. As a matter of law there is a statutory presumption in favor of compensation and Courts must interpret statutes in a way which infers the intention of the legislature to pay compensation to people entitled to it when government action infringes their rights. This presumption should be read into the policy. And in fact, in the absence of legislation, even if the policy expressly denied compensation, it would be unauthorized. It is certainly unjust to give compensation issues concerning Aboriginal title less protection than is given other forms of property. Such behavior would seem to violate section 15 of the Charter which guarantees equality. If anything, given section 35, Aboriginal title should be given more protection than is afforded other property rights. Nevertheless, the protection given other forms of property through compensation, forms a basic minimum standard which should guide the workings of the CCP. Aside from the need for express statutory authority if compensation is to be denied (which does not exist at present, and probably would be unconstitutional if it were enacted), a few other points should be mentioned. In the ordinary course governments which expropriate property must pay the costs of the party making a claim for compensation. There is a strong basis in law for arguing that Aboriginal peoples should be entitled to have the governments bear the costs of their claims. This has significance for loan funding for treaty negotiations. It is problematic that at present the government loans First Nations money to conduct negotiations to be deducted from the final settlements. Given the complexity of the issues involved and the great disparity between the views of First Nations and governments on these issues, and the paltry settlement offers made to smaller communities, it is not beyond the realm of possibility that First Nations find the cost of negotiations exceeds the final settlement. In any case their debts make it hard for them to conduct negotiations with their creditors. Several arguments support this: 1. The law says the governments should pay the costs of claimants for compensation. 2. Compensation should include compensation for past infringements, though there are issues of limitations which arise in this context. 3. Ongoing infringeme nts occurring during the course of these negotiations accrue to the benefit of governments and probably more than pay for the cost of negotiation. In any event, a root of the problem is that there is no recognition of the proprietary character of Aboriginal title and a failure, given that proprietary character of Aboriginal title, to apply basic principles of compensation law to Aboriginal people. f) Scope of Negotiations verses Content of Aboriginal title Delgamuukw makes it clear that Aboriginal title is more than a bundle of discrete rights to do things integral to distinctive the Aboriginal culture whose title it is. At Para. 117 the content of Aboriginal title is summarized as follows: the content of Aboriginal title can be summarized by two propositions: first, that Aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those Aboriginal practices, customs and traditions which are integral to distinctive Aboriginal cultures; and second, that those protected uses must not be irreconcilable with the nature of the group's attachment to that land. 45

It is rather a right to the land itself conferring upon the title holders the right to do many things and undertake economic activities. It confers ownership of the resources—minerals and timber for example. The only limitation on the title is that what is done cannot be destructive of the historic relationship of the Aboriginal people with the land. As such, it is clear that substantively the CCP must allow for the ownership of resources by Aboriginal people. In this respect the CCP appears to mirror what is required. Resources such as offshore areas, wildlife and subsurface rights are being negotia ted. However, at para 166 is found the following passage: Aboriginal title encompasses the right to exclusive use and occupation of land; second, Aboriginal title encompasses the right to choose to what uses land can be put, subject to the ultimate limit that those uses cannot destroy the ability of the land to sustain future generations of Aboriginal peoples; and third, that lands held pursuant to Aboriginal title have an inescapable economic component. In this regard, the CCP seems ambiguous, because in discussing resource revenue sharing the policy states that “resource revenue sharing will not imply resource ownership rights and will not result in the establishment of joint management boards”. The existence of such boards is however contemplated in tha t part of the policy considering self government. Perhaps part of the problem with the policy comes from its bifurcated approach to Aboriginal title and land based rights as opposed to non land based rights. Delgamuukw at Paras 113-115 identifies 3 basic characteristics of Aboriginal title. It is inalienable except by surrender to the Crown. Its source predates the assertion of British Sovereignty. It is held communally. The CCP does not do justice to these aspects of Aboriginal title. The policy seeks to impose rights and non-aboriginal concepts about rights and structures upon Aboriginal people. A fee simple is a different sort of interest than Aboriginal title. It has evolved through time to the point where its fundamental quality is that there are no restraints upon its alienation. It is thus primarily a marketable interest. Similarly, corporate structures have developed in commercial contexts and corporate governance involves at least some consideration of corporate control and the rights or lack of rights of shareholders who are distinct from the company. Imposition of corporate styles of governance upon Aboriginal peoples, and the exchange of Aboriginal title for fee simple title does violence to both the communal character of Aboriginal title and its concomitant inalienability. nnnn g) Interim Measures

The problem for Aboriginal people is that presently while negotiations proceed, lands and resources continue to be disposed of by the Crown, on the basis that until Aboriginal rights and title are proven in Court to exist, the lands and resources can be disposed of as if there was no question of title. Since it is hard to envisage that lands and resources in the hands of third parties could feasibly be returned to Aboriginal peoples (a reality based not on law but on political expediency) some means has to be developed for ensuring that Aboriginal people have access to
nnnn

The inherently non commercial nature of Aboriginal title grounded the decision in Uukw v. B.C. (1987), 16 B.C.L.R. (2d) 145 (B.C.C.A.).

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the wealth of their lands now. Considerations which apply here include protection of places of special importance to Aboriginal peoples, and the development of some means of compensation for lost potential resources, either in terms of present grants, economic opportunities, or money. This could be worked out by means of a formula perhaps, because ideally the resort to interim measures should not be a matter completely in the discretion of the Crown. Recommendation 16 of the BC Claims Task Force Report requires that interim measures be negotiated. The recommendation states that “The parties negotiate interim measures agreements before or during treaty negotiations when an interest is being affected which could undermine the process.” oooo The recommendation causes much angst amongst the parties because there is no agreement around the meaning of interim measures. The term is used to describe attempts to negotiate arrangements or protocols to deal with the issue of potential or actual infringement of Aboriginal rights, at the operational level. It is also used to describe interim arrangements that arise in the course of treaty negotiations. As a consequence, the meaning of interim measures and the content is the subject of much debate. But, the Task Force Report does in fact address the content of interim measures in a substantive manner. The suggestions in the Task Force Report range from “notification to affected parties before action is taken…[to] restriction or moratorium on the alienation…”. pppp To be fair to both Canada and British Columbia, the newly announced Treaty Related Measures may offer some promise. Treaty related measures seem to offer at least some of measures contemplated in the Task Force Report. But, these measures are not intended to address current infringements. It at least appears that any benefits received pursuant to negotiations around Treaty Related Measures would be a deduction from the business component of a Final Agreement. Treaty Related Measures are an early withdrawal from the comprehensive treaty package, which ultimately involves an exchange in which the price that must be paid by the Aboriginal claimants is extinguishment. In any event, for the most part, the interim arrangements that have been negotiated to date, at least in British Columbia, have focused on the establishment of consultation processes. And though consultation is clearly essential, the court has also contemplated measures that go far beyond mere consultation. In Delgamuukw the Court described a spectrum of rights and the requirements on the part of Crown respecting arrangements to address infringements. Former Chief Justice Lamer states: At the one end, there are those [A]boriginal rights which are practices, customs and traditions that are integral to the distinctive [A]boriginal culture of the group claiming the right… …In the middle, there are activities which, out of necessity, take place on land and indeed, might be intimately related to a particular piece of land… …At the other end of the spectrum, there is [A]boriginal title itself. qqqq
oooo pppp

BC Claims Task Force Report, Recommendation 16. BC Claims Task Force Report, at 64. qqqq Delgamuukw at 1094-1095.

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As for the specific types of arrangements, the court contemplated a process that would involve a range of measures starting with consultation and ending with a consent requirement. In particular the court stated: There is always a duty to consult… …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 [A]boriginal 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 [A]boriginal peoples 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 [A]boriginal nation, particularly when provinces enact hunting and fishing regulations in relation to [A]boriginal lands. rrrr The court talked about the economic component of Aboriginal title that would involve specific measures that are in addition to the compensation referred to earlier. The court described a variety of possible measures that would provide economic opportunities for Aboriginal peoples and that ought to be used to address infringements. In this regard, the court stated: What is required is that the government demonstrate (at Para 62) ‘both that the process by which it allocated the resource and the actual allocation of the resource which results from that process reflects the prior interest’ of the holders of [A]boriginal title in the land. By analogy with Gladstone, this might entail, for example, that governments accommodate the participation of [A]boriginal peoples in the development of the resources of British Columbia, that the conferral of fee simples for agriculture, and of lease and licences for forestry and mining reflect the prior occupation of [A]boriginal title lands, that economic barriers to [A]boriginal uses of their lands (e.g. licensing fees) be somewhat reduced. ssss The language of the court is not ambiguous. There is certainly sufficient direction from the courts to construct substantive Interim Measures based upon the honor of the Crown and the requirement to reconcile Crown activities with existing Aboriginal and Treaty rights. Yet, in the context of current treaty and non-treaty negotiations, it at least appears that this is not being done in the manner contemplated by the court. Consent is not required for development on aboriginal lands, compensation for infringements is not being paid, and it does not appear that economic barriers are being eliminated. Part III Fiduciary Duty and Good Faith Negotiations

Given the forgoing analysis, there are serious questions around whether the CCP is consistent with the fiduciary obligations of the Crown towards Aboriginal people. The Supreme Court of Canada recognized the fiduciary relationship of the Crown with Aboriginal peoples, first of all in Guerin v, the Queen, [1984] 2 S.C.R. 335, extended that relationship into a general guiding
rrrr ssss

Delgamuukw at 1113. Delgamuukw at 1112.

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principle for the interpretation of section 35 of the Constitution Act, 1982 in R. v. Sparrow, [1990] 1 S.C.R. 1075. Sparrow is particularly important because of the sweeping language used in enunciating a general guiding principle for the interpretation of s. 35: That is, the Government has the responsibility to act in a fiduciary capacity with respect to Aboriginal peoples. The relationship between the Government and Aboriginals is trust- like, rather than adversarial, and contemporary recognition and affirmation of Aboriginal rights must be defined in light of this historic relationship. The Court reiterated this point in discussing justification: Here, we refer back to the guiding interpretive principle derived from Taylor and Williams and Guerin, supra. That is, the honour of the Crown is at stake in dealings with Aboriginal peoples. The special trust relationship and the responsibility of the government vis- à- vis Aboriginals must be the first consideration in determining whether the legislation or action in question can be justified. The Court also stated that “the words ‘recognition and affirmation’ incorporate the fiduciary relationship, so it becomes clear that the fiduciary relationship is interwoven into the Constitution of Canada itself, through s. 35. In the words of s.-s. 52 (1) of the Constitution Act, 1982: The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. From the forgoing, two questions arise. The first concerns the application of the fiduciary relationship to modern treaty negotiations. It has been argued that the fiduciary principle has no place in the context of negotiations where there is clearly an adversarial relationship. This was however rejected by the B.C. Supreme Court in Luuxhon where Williamson J. said: the longstanding fiduciary relationship between Aboriginal peoples and the Crown, involving as it does the honour of the Crown, and recognized and affirmed as it is in s.35(1) of the Constitution Act, cannot be displaced simply because the Crown and First Nations enter into negotiations concerning Aboriginal title and/or rights. tttt This is not only sound in principle but completely consistent with the general thrust of Sparrow that “Section 35(1) of the Constitution Act, 1982, at the least, provides a solid constitutional base upon which subsequent negotiations can take place.” In fact given the Court’s insistence in Delgamuukw v. B.C., [1997] 3 S.C.R. 1010 at Para. 186 that negotiations must take place: Finally, this litigation has been both long and expensive, not only in economic but in human terms as well. By ordering a new trial, I do not necessarily encourage the parties to proceed to litigation and to settle their dispute through the courts. As was said in
tttt

Gitanyow v. Canada [1999] 3 C.N.L.R. 89 at 98.

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Sparrow, at p. 1105, s. 35(1) "provides a solid constitutional base upon which subsequent negotiations can take place". Those negotiations should also include other Aboriginal nations which have a stake in the territory claimed. Moreover, the Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith. Ultimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this Court, that we will achieve what I stated in Van der Peet, supra, at para. 31, to be a basic purpose of s. 35(1) -- "the reconciliation of the pre-existence of Aboriginal societies with the sovereignty of the Crown". Let us face it, we are all here to stay. Luuxhon takes the Supreme Court at its word at least in so far as saying that where the Crown enters into negotiations, it must conduct those negotiations in good faith. Luuxhon is important because it found there is a legal obligation on the part of the Crown to negotiate in good faith. The second issue concerns the application of the Constitution to prerogatives and policy rather than statute. Because the Constitution is the Supreme law of Canada, and one of the fundamental principles of our democracy is government by rule of law, it cannot be suggested that fundamental imperatives of the Constitution can be avoided by resort to prerogative rather than statute. The Crown is in Canada subject to the rule of law, and subject to the Constitution (Reference re Secession of Quebec, [1998] 2 S.C.R. 217 at Paras. 70-78). The fact that the government is acting pursuant to the Royal Prerogative rather than statutory authority is also legally irrelevant (Operation Dismantle v. the Queen, [1985] 1 S.C.R. 441). So the process of negotiating treaties also attracts the fiduciary duties of the Crown, and that is binding on the Crown. As said in Eastern Trust Company v. McKenzie Mann & Co. Ltd., [1915] A.C. 750 (P.C.) at page 759: It is the duty of the Crown and of every branch of the Executive to abide by and obey the law. If there is any difficulty in ascertaining it the Courts are open to the Crown to sue, and it is the duty of the Executive in cases of doubt to ascertain the law, in order to obey it, not to disregard it. The same principle was discussed in Air Canada v. Attorney General for British Columbia, [1986] 2 S.C.R. 539 at page 546, Mr. Justice La Forest recognized that executive discretion, “must be exercised in conformity with the dictates of the Constitution and the Crown’s advisors must govern themselves accordingly.” In the context of the Charter, this also has been recognized by the Supreme Court of Canada. In Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441 at page 455, Mr. Justice Dickson, as he then was, said: cabinet decisions fall under s. 32(1)(a) of the Charter and are therefore reviewable in the courts and subject to judicial scrutiny for compatibility with the Constitution. I have no doubt that the executive branch of the Canadian government is duty bound to act in accordance with the dictates of the Charter. There is no basis for saying that executive decisions are subject to judicial scrutiny on Charter grounds but not on the basis of s. 35. All of this goes to establishing that the fiduciary duty 50

applies to the Crown in establishing and in carrying out the CCP, and as such, the CCP is subject to judicial scrutiny for compatibility with Canadian constitutional imperatives. We suggest that the fiduciary relationship is a structural imperative in the Canadian constitution flowing from the twin propositions that first of all, aboriginal peoples are equal to all citizens, and worthy of the same protection from the Crown as other citizens. Secondly, however, under the common law, because of the cultural differences between aboriginal and non aboriginal people, it was impossible to permit aboriginal law to apply to non aboriginal peoples, as is the general rule. uuuu Couple with this separateness, and equality was the fundament al fact that aboriginal and non aboriginal people were often in direct competition, as recognized by the Royal Proclamation, the very document that Lord Mansfield was interpreting in Campbell v. Hall. Thus when s. 91 (24) of the Constitution Act, 1867 was enacted its purpose was to protect Indians from local settlers, not to subject Indians to the absolute power of the federal government. Just as, recently, after many years, the courts are recognizing that there is a body of rights fundamental to our constitution which is beyond the power of any government to infringe upon (the leading case in this respect is now Manitoba Provincial Judges Assn. v. Manitoba (Minister of Justice), [1997] 3 S.C.R. 3) so it is submitted the fiduciary relationship of the federal government with aboriginal people is a structural imperative and the federal power given there should be plenary but not absolute as it is in the United States (United States v. Alcea Band of Tillamooks, 329 U.S. 40 (1946) at page 54). The fiduciary relationship as a constitutional principle must be incorporated into the policy and the negotiations of modern treaties. It cannot be forgotten that the Court in Sparrow underscored its whole approach to the interpretation of s. 35 of the Constitution Act, 1982 with reference to the negotiation of modern treaties. For many years, the rights of the Indians to their Aboriginal lands -- certainly as legal rights -- were virtually ignored. The leading cases defining Indian rights in the early part of the century were directed at claims supported by the Royal Proclamation or other legal instruments, and even these cases were essentially concerned with settling legislative jurisdiction or the rights of commercial enterprises. For fifty years after the publicatio n of Clement's The Law of the Canadian Constitution (3rd ed. 1916), there was a virtual absence of discussion of any kind of Indian rights to land even in academic literature. By the late 1960s, Aboriginal claims were not even recognized by the federal government as having any legal status. Thus the Statement of the Government of Canada on Indian Policy (1969), although well meaning, contained the assertion (at p. 11) that "Aboriginal claims to land . . . are so general and undefined that it is not realistic to think of them as specific claims capable of remedy except through a policy and program that will end injustice to the Indians as members of the Canadian community". In the same general period, the James Bay development by Quebec Hydro was originally initiated without regard to the rights of the Indians who lived there, even though these were expressly protected by a constitutional instrument; see The Quebec Boundaries Extension Act,

uuuu

See Campbell v. Hall (1774), 1 Cowp. 204 per Lord Mansfield at pages 208-209; The Indian Chief (1801), 1 C. Rob. 11 at page 29 per Sir William Scott; Mabo v. Queensland (1992), 175 C.L.R. 1 at page

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1912, S.C. 1912, c. 45. It took a number of judicial decisions and notably the Calder case in this Court (1973) to prompt a reassessment of the position being taken by government. In the light of its reassessment of Indian claims following Calder, the federal Government on August 8, 1973 issued "a statement of policy" regarding Indian lands. By it, it sought to "signify the Government's recognition and acceptance of its continuing responsibility under the British North America Act for Indians and lands reserved for Indians", which it regarded "as an historic evolution dating back to the Royal Proclamation of 1763, which, whatever differences there may be about its judicial interpretation, stands as a basic declaration of the Indian people's interests in land in this country". (Emphasis added.) See Statement made by the Honourable Jean Chrétien, Minister of Indian Affairs and Northern Development on Claims of Indian and Inuit People, August 8, 1973. The remarks about these lands were intended "as an expression of acknowledged responsibility". But the statement went on to express, for the first time, the government's willingness to negotiate regarding claims of Aboriginal title, specifically in British Columbia, Northern Quebec, and the Territories, and this without regard to formal supporting documents. "The Government", it stated, "is now ready to negotiate with authorized representatives of these native peoples on the basis that where their traditional interest in the lands concerned can be established, an agreed form of compensation or benefit will be provided to native peoples in return for their interest." * * *

It is clear, then, that s. 35(1) of the Constitution Act, 1982, represents the culmination of a long and difficult struggle in both the political forum and the courts for the constitutional recognition of Aboriginal rights. The strong representations of native associations and other groups concerned with the welfare of Canada's Aboriginal peoples made the adoption of s. 35(1) possible and it is important to note that the provision applies to the Indians, the Inuit and the Métis. Section 35(1), at the least, provides a solid constitutional base upon which subsequent negotiations can take place. It also affords Aboriginal peoples constitutional protection against provincial legislative power. (Underlining added) The Court in Sparrow was particularly cognizant of the historically precarious position of Aboriginal people within Canada. It is clear that Aboriginal peoples have existing Aboriginal rights and title to parts of Canada, and maybe substantial parts. However, those existing rights and title have long been ignored . The proof of those rights, as has been made evident in subsequent decisions like R. v. Van der Peet , [1996] 2 S.C.R. 507 and Delgamuukw, however, can be an arduous task, stemming in part from the fact that because those rights are, in the words of Guerin “pre-existing legal rights not created by Royal Proclamation, by s.18 (1) of the Indian Act, or by any other executive order or legislative provision,” one cannot simply point to a Crown grant in order to prove them. Despite their priority both in time and in terms of their constitutional status, Aboriginal rights are difficult to prove. This was the very objection made to them in the notorious White Paper, referenced by Sparrow in the passage above. Whenever one proves occupation of land in law, one relies on mutual recognition of boundaries for instance, but in the case of Aboriginal title, historical 52

non recognition of the legal status of Aboriginal title has made proof ever more difficult with the passage of years. So while Aboriginal peoples are facing these difficulties the status quo of appropriation of lands and resources continues. The CCP as an embodiment of the fiduciary duty of the Crown to Aboriginal peoples with respect to their rights fundamentally should address this inequity. In terms of the analysis of fiduciary duties set out in Frame v. Smith, [1987] 2 S.C.R. 99 by Wilson J. as follows: Relationships in which a fiduciary obligation have been imposed seem to possess three general characteristics: (1) The fiduciary has scope for the exercise of some discretion or power. (2) The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary's legal or practical interests. (3) The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power.— One can see that the granting of land rights to third parties lies in the discretion of the Crown, subject to Aboriginal title. This discretion can be exercised unilaterally by the Crown, and it is a discretion to which Aboriginal peoples are peculiarly vulnerable, especially given the difficulties of proof of title, and the issues of the institutional competence of the Courts to address issues of the complexity of Aboriginal title. The process of negotiating modern treaties should embody the fiduciary relationship out of which it was born. On the other hand the same result occurs if one looks at the fiduciary duty as an obligation by the Crown to treaty Aboriginal peoples in a way that is “separate but equal” vvvv . In this regard, Aboriginal people are treaty separately, within Canada, and the Crown owes to Aboriginal people a duty of protection from the dangers of majoritarian democracy, which formed the substratum of the assignment of head 91 (24) to the federal government. Of particular importance in this regard is the British House of Commons Report from the Select Committee on Aborigines (British Settlements) (1837) wwww at page 77: The protection of the Aborigines should be considered as a duty peculiarly belonging and appropriate to the Executive Government, as administered either in this country or by the Governors of the respective Colonies. This is not a trust which could conveniently be confided to the local Legislatures. In proportion as those bodies are qualified for the right discharge of their proper functions, they will be unfit for the performance of this office. For a local Legislature, if properly constituted, should partake largely in the interests, and represent the feelings or the settled opinions of the great mass of the people for whom they act. But the settlers in almost every Colony, having either disputes to adjust with the native tribes, or claims to urge against them, the representative body is virtually a party, and therefore ought not to be the judge in such controversies. Or if the members of the Colonial Legislature are not chosen by the people, but selected by the Government, there
vvvv

See Mark L. Stevenson and Albert Peeling, Probing the Parameters of the Fiduciary Obligation, prepared for the Law Commission of Canada (2001). wwww (Shannon: Irish University Press, 1968).

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is still a similar objection to their interference with regard to the Aborigines. Possessing an invidious elevation, in which they are supported by no other title than that of the preference of the Crown, they will endeavour to abate the ill-will which follows on such superiority, by ministering to all popular prejudices which do not directly invade the power and the rights of the Government they serve. Whatever may be the legislative system of any Colony, we therefore advise that, as far as possible, the Aborigines be withdrawn from its control. This is consistent with remarks in Reference re Secession of Quebec at para. 82: Consistent with this long tradition of respect for minorities, which is at least as old as Canada itself, the framers of the Constitution Act, 1982 included in s. 35 explicit protection for existing Aboriginal and treaty rights, and in s. 25, a non-derogation clause in favour of the rights of Aboriginal peoples. The "promise" of s. 35, as it was termed in R. v. Sparrow, [1990] 1 S.C.R. 1075, at p. 1083, recognized not only the ancient occupation of land by Aboriginal peoples, but their contribution to the building of Canada, and the special commitments made to them by successive governments. The protection of these rights, so recently and arduously achieved, whether looked at in their own right or as part of the larger concern with minorities, reflects an important underlying constitutional value. The protection of Aboriginal peoples from local majorities whose interests conflict with theirs is related directly to the loyalty principle which was considered by the majority of the Supreme Court in Hodgkinson v. Simms, [1994] 3 S.C.R. 377: while a fiduciary obligation carries with it a duty of skill and competence, the special elements of trust, loyalty, and confidentiality that obtain in a fiduciary relationship give rise to a corresponding duty of loyalty. From the earliest times, the Crown assured Aboriginal people of its protection, whether in the words of the Royal Proclamation of 1763 or in the treaties made with them. The Crown asserted sovereignty over Canada and received Aboriginal peoples into its protection. In a very real sense the CCPis the way in which the promise of protection and the duty of loyalty will be fulfilled. It is trite to say that Parliament cannot be forced to legislate to the fullest extent of its jurisdiction. One instance of this principle can be found in head 91 (24) itself, which although it clearly embraces both Indians and Inuit (Re the Term “Indian”, [1939] S.C.R. 104) does not necessarily oblige the federal government to extend the provisions of the Indian Act to Inuit. On the other hand, in terms of the obligation of Canada to enter into and negotiate modern treaties with Aboriginal peoples, it is worthwhile again to recall that in Guerin, the pre-existing legal rights of Aboriginal peoples gave rise to a fiduciary duty on the part of the Crown to protect them. The pre-existence of Aboriginal title renders inapplicable the doctrine of the political trust which says that the Crown can create a fund or property to be administered by it, perhaps for a particular purpose, but that no person can force the Crown to distribute the funds or property in any particular way, on the basis of the creation of the fund alone. Because Aboriginal rights and title exist, because 54

they have been ignored, and because there is a sad lack of effective means for their enjoyment by Aboriginal peoples, in the words of Delgamuukw, “the Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith”. These negotiations are not simply a matter which the Crown can choose to pursue or not. Just as in Guerin, there is no room for the political trust doctrine here. That said, there are large questions concerning the structuring of the comprehensive process in light of the fiduciary duty of the Crown, and the problem of ensuring the negotiations are conducted in good faith. Aboriginal rights and title are, as said in R. v. Gladstone, [1996] 2 S.C.R. 723 at Para 62, “at once both procedural and substantive”. The process set up to negotiate comprehensive claims must address the vulnerability of Aboriginal peoples by attempting to create a structural equality between the parties to the negotiations. While not attempting to be exhaustive or definitive as to how a properly structured claims process would look, we could suggest the following principles are required to ensure that some of the minimum fiduciary requirements are being followed: 1. Financial independence of Aboriginal Peoples who choose to enter into negotiations must be maintained. Presently the financing of negotiations by means of loans with provisions for their payment ensure that as time passes in negotiations Aboriginal peoples become more and more vulnerable. The fiduciary ought not to perpetuate the vulnerability of the beneficiary. 2. Parity of resources with the other parties. The negotiations must recognize that if the fiduciary duties of the Crown to Aboriginal people are in part a means to ensure that the separateness of Aboriginal people from the majority does not render them inherently unequal, equal access to resources must be available. It is inherently unequal that Aboriginal peoples in conducting negotiations are faced against the entire resources and expertise of both federal and provincial governments. Perhaps some independent office, not under the purview of the government, could be set up to provide a parity of resources and expertise. The perpetuation of a relationship of inequality is inconsistent with the fiduciary duty. . 3. Effective dispute resolution. It is essential that there be effective oversight of the CCP process in order to ensure that the Crown’s honor is upheld. This cannot be merely a facilitation office or assistance in mediation. This means ultimately that there must be some form of judicial review of the conduct of the parties available to settle disputes in the spirit of the concluding remarks of Lamer C.J. in Delgamuukw, to which we have previously referred. In addition to a dispute resolution mechanism, there is perhaps even a greater need to hold the Crown accountable for meeting minimum fiduciary standards. 4. Flowing from the duty to negotiate in good faith and the fiduciary relationship, there is a duty to disclose what is actually being negotiated. While this does not require the Crown to reveal the intricacies of its negotiation strategy, Aboriginal people, the Crown must be open about its policies and forthcoming about the substantive content of the negotiations. The Crown cannot say one thing in a policy statement and then do something that is 55

completely contrary to those statements, based upon a hidden agenda. Sharp dealing and oblique motives are not consistent with the Crown’s honor (Luuxhon). And, as a part of the fiduciary relationship, a fiduciary cannot make a profit or compete with or take advantage of opportunities arising out of the relationship, without full disclosure. Clearly, the amount of disclosure is inadequate in today’s treaty process. The policies are ambiguous, have changed without disclosure, or they are not being followed. First Nations are entitled to know what they are dealing with and what is being asked of them. There should be a mechanism in place to ensure disclosure. Whatever the structure of the negotiations, they should be arrived at in consultation with Aboriginal peoples, given their obvious effect on the existing Aboriginal rights and title, and moreover given the need that the process be, and be seen to be, legitimate. The substantive aspect involves the principle of good faith negotiations. The hallmark of good faith is honestly attempting to reach a settlement and addressing the concerns of the other party. Good faith doctrines have evolved in the context of Labor law and also in the context of contracts of insurance. A critical component in that context is complete and honest disclosure of all material facts. Disclosure has application directly in the context of fiduciary duties where in company law the directors’ fiduciary relationship to the company forbids them from self dealing or profiting at the company’s expense, in that absence of complete disclosure and ratification by the company. The relevant authorities in this respect are Aberdeen Railway Co v. Blaikie Bros (1854) 1 Macq 461, where Lord Cranworth said: it is a rule of universal application that no one, having duties to discharge, shall be allowed to enter in engagements in which he has, or can have, a personal interest conflicting, or which possibly may conflict, with the interest of those whom he is bound to protect. See also Keech v. Sandford (1726), 25 E.R. 223. Cook v Deeks, [1916] 1 AC 554, however, qualified this rule by noting that a director can normally keep a personal profit if the company consents, but this consent is invalid if the director concerned controls the voting at general meeting. This rule about conflict of interest and consent is particularly relevant to the understanding of the fiduciary relationship between the Crown and Aboriginal peoples given its origin ultimately in the conflict of interest between Aboriginal peoples and non Aboriginal peoples, to both of which groups the Crown owing protection. It seems that this rule and the consent requirement which is part of it, ground the consultation and consent requirements incorporated into s. 35 in Sparrow and Delgamuukw. The touchstone of good faith negotiations remains the fact that the Crown’s relationship with Aboriginal peoples is trust like rather than adversarial, as Sparrow notes, and one cannot read Sparrow without the sense that its remarks, and effectively the development of the principles of justification in that case were aimed directly at the Comprehensive Claims Process. Legitimate Expectations Under the doctrine of legitimate expectations as it is known in Canada, discussed recently in Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), [2001] SCC 56

41.governments can be held to the procedures set out in their policies. The extent to which those policies can create substantive rights remained an open question in the majority judgment at para. 95 It is unnecessary then to embark on the inquiry of whether the legitimate expectation created by the course of dealings between the parties can result in a substantive remedy beyond the procedural protection provided by the right to be heard, i.e., the issuance of the permit, either within an expanded doctrine of legitimate expectations or under public law promissory estoppel. In any case, it is clear that the policies of the government can be binding on them. So in Cheslatta Carrier Nation v. British Columbia, 2000 BCCA 539 at Para 20, the Court said: Finally, I return to the question of the "Catch-22" in which Mr. Janes contended his clients find themselves. The position he says is taken by the government in responding to demands for consultation may not accord with recent decisions illustrating what has been called a "richer understanding" of the duty to consult (see S. Lawrence and P. Macklem, "From Consultation to Reconciliation: Aboriginal Rights and the Crown's Duty to Consult", (2000) 79 Can. Bar Rev. 252, esp. at 261-2); and it is certainly at variance with the Consultation Guidelines issued by the government of British Columbia for the use of administrative personnel who find themselves dealing with asserted aboriginal claims. These Guidelines were referred to at para. 94 in the Reasons of Sigurdson J. in Westbank, supra, and require government officials to deal in good faith in addressing aboriginal "concerns relating to infringement." The Guidelines state that the Province must assess the likelihood of aboriginal rights and title "prior to land resource decisions concerning Crown land activities", and they instruct statutory decision-makers to "take steps to ensure consultation activities contain proper representation from all potentially affected aboriginal groups." If these Guidelines are being complied with, they constitute a substantial answer to the concerns voiced by Mr. Janes. If they are not being complied with, the answer is not to distort the law of civil procedure but to raise the issue in a specific case. At the very least, rules of procedural fairness may be invoked, as occurred recently in Halfway River First Nation v. British Columbia (Minister of Forests) (1999) 64 B.C.L.R. (3d) 206 (B.C.C.A.). I pause to note that in other jurisdictions, notably in England, the doctrine of legitimate expectations does have a substantive component and the scope of that doctrine throws an interesting light on the procedural and substantive components of s. 35. Conclusion Canada’s Comprehensive Land Claims Policy (CCP) announced in December of 1986 cries out for revision. The CCP was outdated at its inception because it continued the extinguishment policy of the historic treaties and placed that policy in a 20th century context. Since 1986, there has been a shift in the legal landscape of an unforeseen magnitude, and the CCP has not kept 57

abreast. If there are to be successful treaties in the 21st century, the CCP needs some fundamental changes so that, at a minimum, the policy is aligned with the law. A part from the law, the policy is disjointed and applied inconsistently. There have been a number of policy statements by the Department of Indian Affairs and Northern Development in an attempt to grapple with the changing legal circumstances. Some of these are available to the public, and some are not. Some of these public pronouncements are merely self-serving political statements, others amount to changes in the policy, and it is sometimes difficult to determine one from the other. There is no single place to locate the policy, and in fact much of the policy remains classified. And, in some cases, the policies that are accessible are not being followed: Here are but a few examples: • Both the 1981 policy and the current CCP indicate that compensation is available as a part of the negotiations. However, compensation is not a part of the actual negotiations because the Crown takes the position that negotiations should be future looking and not focus on compensation for past infringements. Yet, the April 28, 2000 Statement on Certainty Principles speaks to reconciling past infringements. Ironically, compensation is payable to third parties. To add insult to injury, First Nations are asked to release the Crown from any future claims to compensation. The CCP provides options for extinguishment. One of the options does not require “cession or surrender” on reserves or settlement lands. However, in British Columbia, this option is not available. Also, the CCP speaks to certainty and finality to land based rights, and does not seek the extinguishment of the inherent right or other non- land based rights. In the Nisga’a Final Agreement, all section 35 rights, including the inherent right to self- government were “modified and released.” In other documents there are discussions of the non-assertion of rights as opposed to extinguishment. In British Columbia, the treaty model requires that settlement lands become fee simple lands and no longer under the jurisdiction of the federal government pursuant to section 91(24) by providing that upon the coming into force of the treaty, “there will be no more lands reserved for the Indians within the meaning of the Constitution Act, 1867”. Yet, at least pursuant to the 1973 Cabinet directives, which were subsequently incorporated into the CCP – Canada would continue to assume its jurisdiction over Indians and Indian lands pursuant to section 91(24).

Since the policy was announced in December, 1986, the law has changed dramatically. In 1990, the Supreme Court of Canada found that section 35 rights exist and set a threshold which the Crown must meet if section 35 rights are infringed. The test includes the incorporation of the fiduciary duty into the justification process. The test was later expanded upon in Van der Peet, and Gladstone. And, in 1997, the Supreme Court of Canada rendered its landmark decision in Delgamuukw. The CCP could not have foreseen these clarifications and changes to the law. In 58

particular, the CCP did not contemplate that the court would build the fiduciary obligation into section 35. Nor did the policy contemplate that the courts would require that any infringement be the least intrusive invasion of the right. The law has changed and continues to change, but the policy has not kept pace. In fact, if anything, the policy has taken a step back. It appears that the current practice is to seek the extinguishment of all section 35 rights, not just rights to land and land use. The policy, in British Columbia, no longer offers the continuance of Aboriginal title on reserves and parts of settlement lands. Compensation for past infringements is not a part of the negotiations. And, the Canada is seeking, in the negotiations, to ensure that settlement lands are no longer section 91(24) lands. Much of this ill conceived and only partially articulated policy is inconsistent with the current state of the law. In particular: • The model which the Crown has perpetuated is not a model based upon the recognition of rights. The model is an exchange model where Aboriginal and treaty rights are extinguished in exchange for specific treaty rights. This is contrary to the recognition and affirmation language of section 35. The closest the model comes to actually recognizing existing rights is through the claims acceptance process. But the criteria used for the acceptance of the claim are fundamentally flawed and do not conform to the criteria outlined in Delgamuukw. While the lack of criteria (per the BCTC process) may make good policy sense it has lead to litigationxxxx and is in fact, in conflict with the law. The Crown continues to require the extinguishment of section 35 rights. The concept of extinguishment is contrary to the law as articulated in Sparrow which requires “as little infringement as possible”. In fact, it is difficult to think of a more intrusive invasion of section 35 rights. Coupled with this, the Crown is in a fiduciary relationship with Indian people. As a part of the fiduciary duty, the Crown owes a duty of “complete trust and utmost loyalty”. The requirement of extinguishment in order to address the concerns of provinces and third parties is inconsistent with the duty of loyalty which the law requires. Canada now requires that settlement lands are fee simple lands and no longer within the scope of section 91(24). This is inconsistent with the principles that flow from the Royal Proclamation of 1763 and several centuries of case law. In St Catherine’s Milling and Lumber Co., v the Queen, the court concluded that section 91(24 lands include “all lands reserved, upon any terms or conditions, for Indian occupation.” This finding was confirmed by the Supreme Court of Canada in Delgamuukw. while there may be good policy reasons for holding settlement lands outside of section 91(24), it is contrary to accepted constitutional principles. Under the current practice, compensation for past infringements of section 35 is unavailable. The capital amount payable pursuant to a settlement agreement is based on a per

xxxx

Litigation in the Luuxhon matter is fundamentally about an unresolved overlap between the Gitanyow and the Nisga’a. Arguably, if there were Criteria in place as a part of the acceptance criteria that required proof of title (as outlined in Delgamuukw) this debate may have been avoided. At the same time, it is acknowledged that an over reliance on legal criteria and processes may not always be the way to resolve claims.

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capita formula for what is considered what is politically acceptable, it is not compensation owning for past breaches. The policy fails to grasp that the entitlement to compensation is a legal one and not a political one. Delgamuukw has clarified this by stating that compensation would normally be required. There is a presumption in law in favor of compensation. This presumption is even stronger given that the rights being dealt with in modern treaty negotiations are constitutional rights. • Aboriginal title encompasses “the right to exclusive use and occupation”, the right to “chose to what uses the land can be put” and an “inescapable economic component”. The nature and scope of the negotiations diminish the nature of Aboriginal title in favor of the interests of recreational hunters, or the interests of the public over access. The negotiations and the CCP do not address the commercial nature of Aboriginal rights and title and the policy breaches the right of First Nations to choose how there land is to be used. All of these limitations that flow from the CCP are inconsistent with the nature of Aboriginal title, and to that extent, inconsistent with the law. The CCP does provide for some interim measures but these interim measures do not adhere to the minimum legal requirements. Interim Measures are required to address the ongoing infringements by the Crown. To do this the court has suggested consent requirements, exclusive use areas, the allocation of priority rights, the minimizing of economic barriers, and compensation. This is not being done, and infringements occur on an ongoing basis.

The fiduciary obligations, obligations of disclosure and the principles of good faith negotiations are not options. They are a part of the law. The CCP is not just another Crown policy. It is the policy that governs treaty negotiations. The treaty negotiation process is one of the pillars of the Crown-Indian relationship that purports to legitimize the Crown’s acquisition of vast territories. Courts are cognizant of the sanctity of this relationship. In order to protect the sanctity of both the Crown-Indian relationship and the treaty process, the courts have developed principles which must be honored. Some of these key principles flow from the fiduciary relationship and section 35, and require that the Crown act in the best interests of First Nations and require a duty of utmost loyalty. Some parts of the CCP and the conduct of the Crown in implementing the CCP are inconsistent with that duty. In short, promises are not being kept and the honor of the Crown is tainted.

Mark L. Stevenson and Associates Ph (250) 383-3084 Mark@aboriginallaw.com

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