Sure.
Good morning, and thank you for inviting me to be with you here today.
I am a principal in the firm Cornet Consulting and Mediation Inc. I'll give you a bit of background about myself. I've worked in the area of aboriginal affairs policy since 1976, since before going to law school. I worked with the research branch of the Library of Parliament for a period of time, and since leaving the branch I've worked as a consultant, working with both the federal government and various aboriginal organizations at the national, regional, and community levels.
The first issue I was going to address was the challenge of consultation. In this regard, it's important to consider the respective roles of the executive on the one hand and Parliament on the other in ensuring compliance with section 35 of the Constitution Act.
The executive branch is responsible for directing consultation activities, although it is also possible that legislation could be passed to provide direction on this subject. It is the legislative branch that ultimately has the power to affect the enjoyment of aboriginal and treaty rights, and therefore has the responsibility to consider them in adopting legislation. Where the legislative branch does not meet this obligation, the judicial branch may provide a remedy to uphold the rule of law and the supremacy of the Constitution.
While we understand the executive and legislative branches have distinct roles, there is a relationship between them. As Peter Hogg has noted in his book Constitutional Law of Canada, even a minority government is able to exercise substantial control over the legislative process. An example would be the government's discretion to table and withdraw a government bill, for example.
Section 35 of the Constitution Act is the supreme law of the land in the same way the Charter of Rights and Freedoms is, meaning that the final product of the legislative process, a bill adopted into law, must comply with the requirements of section 35. Where legal duty to consult does exist, properly fulfilling this duty can be part of determining whether there has been an unjustifiable infringement of aboriginal and treaty rights.
The executive has the primary responsibility for identifying any legal duty to consult and ensuring it is met. The legislative branch is therefore dependent on the executive for carrying out this duty adequately but in the end holds the decision-making power about whether to pass a given piece of legislation. Compliance with section 35 necessarily requires a capacity on the part of the crown to answer several legal questions correctly prior to the adoption of a bill into law where there is a legal duty to consult and to make a reasonable effort to accommodate the perspectives of aboriginal peoples.
The government must first accurately answer the question of whether there is an aboriginal or treaty right that could be at risk, or a potential aboriginal treaty right that could be at risk of infringement, and thereby give rise to a duty to consult. Where the government answers that question correctly and proceeds to carry out a consultation exercise, that consultation, in its scope and content, must also be sufficient to meet the requirements of section 35. This again requires legal analysis, one that is dependent on getting the first question correct about the existing scope and content of aboriginal treaty rights. This is because the scope and content of an aboriginal right can affect the scope and content of the duty to consult. Likewise, the strength of a claim to a potential aboriginal and treaty right can also affect the scope and content of the duty to consult.
Where the government does carry out consultation, it then must come to the correct answer on whether the legislation being contemplated requires any adjustment or modification as a result of anything the crown has learned during a consultation process. The penultimate challenge for the crown is to answer all of these legal questions correctly and to carry out any legal duty to consult adequately prior to the adoption of a bill.
However, by its nature, a bill can be changed at various points in its consideration by Parliament prior to its adoption, and so too may its impact on aboriginal and treaty rights. This suggests that the obligation to ensure that a bill does not result in an infringement--and specifically an unjustifiable infringement--of aboriginal and treaty rights ultimately rests with Parliament as a whole. Parliament, of course, may rely on the advice of parliamentary committees and what it hears in debate.
In addition, Parliament could perhaps rely on some form of certification respecting section 35 analysis provided by the Department of Justice respecting a bill tabled by government. Such a process currently exists with respect to the Charter of Rights and Freedoms but does not exist.... I'm just outlining a possibility that could take place but doesn't at the moment, as far as I know.
Concerning consultation carried out prior to a bill's tabling, a question arises about how the potential for infringement can be discussed among aboriginal peoples in Canada in a consultation process where the details of the government's proposal to legislate are not revealed to the aboriginal peoples concerned until a bill is tabled. This may raise the question whether in a particular case there has been adequate consultation, sufficient for aboriginal peoples to assess the potential for infringement with representatives of the crown and to engage with the crown in a process aimed at reconciliation of aboriginal treaty rights with crown sovereignty.
To conduct an adequate assessment of the potential existence of an aboriginal treaty right and the potential risk of infringement, if any, there are two vital areas of information. The first area involves the details of the proposed legislative activity. While the executive cannot trench on the legislative process, it does have the power, through a decision of cabinet, to share details of the bill with the aboriginal peoples concerned prior to its introduction to Parliament.
The other vital area of information is one where the government and aboriginal peoples may both have some information or knowledge on the existence or potential existence of an aboriginal treaty right. In this regard it helps to remember that the Supreme Court of Canada has said the perspectives of aboriginal peoples are to be taken into account in making an assessment on these questions. All this points out how vitally important it is that consultation processes involve a thorough two-way sharing of information and perspectives to ensure an accurate and informed assessment of the risk of infringement.
I was going to say a few words about consultation process design and conflict management and point out that Indian Act reform has historically displayed the dynamics and characteristics of what has sometimes been called intractable conflicts, meaning the underlying issues to conflict are deep-rooted, multi-generational, and involve issues of power inequality, identity, and high stakes distribution.
Interactions between first nations and federal and provincial governments have been characterized by power imbalance, mistrust, and repeated negative patterns. And while there's a fair amount of literature studying the outcomes of litigation, there is a surprisingly small amount of literature studying negotiation processes involving first nations and governments from a conflict management perspective. There is a small amount of literature looking at the experiences of BCTC or the Indian Claims Commission, but relatively little of this literature has been applied to discussions at the national level, particularly involving the development of legislation at the national level.
Finally, I'll address the issue of section 35 and the interpretive clause. While the Canadian Human Rights Act is a quasi-constitutional statute, section 35 of the Constitution Act of 1982 has explicit constitutional status as the supreme law of the land. It seems inevitable that issues relating to section 35 will arise in connection with some complaints arising from first nation communities. This has already occurred in cases where the section 65 exemption has been found not to apply.
In the case of Ermineskin Cree Nation and Canada in 2001--and I believe ongoing peaceful litigation is an example of this--it appears as a result of section 50(2) of the Canadian Human Rights Act and various case law that the Canadian Human Rights Tribunal has jurisdiction to consider constitutional questions related to its jurisdiction to hear a complaint before it, including issues relating to the charter and section 35 questions. However, section 96 courts have concurrent jurisdiction to hear such matters. In Ermineskin Cree Nation, the issue before the court was whether the Human Rights Tribunal has jurisdiction to determine a constitutional question relating to section 35 rights, and if so, whether the court had concurrent jurisdiction and should exercise its discretion in the case before it to decide the question.
The court in that case determined that the Human Rights Tribunal did have jurisdiction, but because of its lack of expertise in dealing with section 35 rights, the court decided the matter should be decided by a superior court.
This decision is evidence that section 35 issues in relation to the Canadian Human Rights Act may arise and be decided regardless of whether there is an interpretive clause referencing collective rights. For example, issues will likely arise on whether and which statutory collective rights under the Indian Act have constitutional status as aboriginal rights, such as the retention of the collective property interest in reserve lands to the exclusion of those who are not band members.
In this regard the Guerin case suggests that most if not all first nations have an interest in their reserve lands equivalent to or indistinguishable from an aboriginal title interest. Further, the interest of a first nation in their reserve lands is inextricably tied to the critical matter of membership. The exclusion of non-members from reserve lands would likely attract constitutional protection as a result of section 35 of the Constitution Act, and take precedence over any conflicting direction arising from the protections of the Canadian Human Rights Act.
However, the manner in which the Indian Act or first nation membership codes variously establish membership criteria may be less secure on charter grounds or CHRA grounds of discrimination where these rely on arbitrary requirements with a weak connection to the notion of peoples, and rely instead on elements of gender discrimination or strict blood-quantum requirements, to the exclusion of other criteria.
There are procedural and structural issues to consider in considering repeal of section 67. The Ermineskin Cree Nation case suggests that a complainant may have to wait for a superior court to determine a constitutional issue, and if that question is resolved in favour of tribunal jurisdiction, only then would the tribunal have an opportunity to determine the substance of a complaint. This raises the prospect of a lengthy process for some cases arising from first nations communities, regardless of how the issues relating to an interpretive clause or non-derogation clause are resolved.
One way to possibly streamline the processing of complaints that may involve section 35 issues would be to provide the commission with authority to establish panels with expertise in aboriginal rights and human rights to hear matters arising from first nation communities. Appointments could be made in consultation with first nations and aboriginal peoples.
One way of resolving the issue of the interpretive clause would be to add a “for greater certainty” provision as a subsection to follow subsection 50(2). I've proposed the following wording:
For greater certainty, the interpretation and application of this Act shall be in a manner consistent with the constitutionally protected rights of the Aboriginal peoples of Canada.
This wording should be sufficient to ensure a consideration of constitutionally protected collective rights and their relationship to individual rights, and constitute a direction to balance individual and collective rights in a manner consistent with the Constitution Act, 1982.
Thank you.