Indigenous and Northern Affairs Committee on Oct. 8th, 2009

[The Chair, Conservative, Bruce Stanton]

Honourable members, ladies and gentlemen, welcome to our committee.

This is the 30th meeting of the Standing Committee on Aboriginal Affairs and Northern Development.

By way of introduction, members, we're going to get started today. As you know, we were delayed by the vote. I do have business at the Liaison Committee that begins at 1 p.m. We might have a little bit of leeway there, but probably no later than 1:15. Normally, we could go longer today, but we are backed up with our Liaison Committee meeting, which, as members know, is important for getting the approval of our travel budget for the northern economic development study.

Today's order of the day relates to a briefing on the topic of the honour of the crown. We're delighted today to have with us Mark Prystupa, associate director general, negotiations centre for treaties and aboriginal government, from the Department of Indian Affairs and Northern Development, and also Charles Pryce, general counsel, aboriginal law and strategic policy, from the Department of Justice

Gentlemen, I'm sure you know that we generally begin with a ten-minute presentation from each of you, after which we'll go to questions from members. In view of the timelines here, I think we will begin with a five-minute round as opposed to the customary seven minutes.

Mr. Duncan, did you have a point of order?

[John Duncan, Conservative, Vancouver Island North, BC]

I simply wanted to indicate that I have a briefing at one o'clock, so I will have to leave.

[The Chair, Conservative, Bruce Stanton]

I think there's a number of reasons why we will try to stick to our 1 p.m. finish time, if we can today.

Gentlemen, whichever of you would like to proceed first, it matters not to me.

Mr. Pryce, do you want to lead off? It's great to have you here today.

[Charles Pryce, General Counsel, Aboriginal Law and Strategic Policy, Department of Justice]

Thank you, Mr. Chairman. We welcome the opportunity to speak to this issue. We felt that I'd be the one to speak to it, simply because the interest is somewhat driven by legal considerations. I'll provide a quick summary.

The issue of honour of the crown is linked to other things like fiduciary relationship and fiduciary duty. It's a bit of a challenge to provide an adequate overview in such a short time. I shall provide a chronology of how the law was developed in this area and then leave further explanation to questions.

It has always been recognized that there is a special relationship between the crown and aboriginal peoples. But until recently, the case law has tended to view it more as a political relationship than a legal one. The Royal Proclamation of 1763 had a few things to say about the Indian tribes. The crown, the King himself, referred to “...the tribes of Indians with whom we are connected and who live under our protection...”. So even going back 250 years there was this special relationship. As I say, it seems mainly political rather than legal.

The earliest references in the case law, at least in Canada, to the notion of honour of the crown were in cases around the end of the 19th century. These were related to treaty interpretation and implementation. One judge on the Supreme Court commented on how the honour of the crown was engaged in the interpretation and implementation of treaty obligations.

Before 1984, however, it was mostly a political relationship, not a legal one. This changed in 1984. There was a very important case in the Supreme Court called Guerin, which for the first time recognized that the crown could owe legally enforceable fiduciary dealings to first nations. I don't have time to get into the law of fiduciary dealings and relationships, but I will say that the term “fiduciary” or “fiduciary relationships” has application in the aboriginal area. Of course, it is a broader equitable principle that has application in many instances. It's a mechanism, a principle, that allows courts and judges to oversee certain kinds of relationships in which there's a power imbalance. Trustee-beneficiary is a fiduciary relationship. Parent and child, doctor-patient, lawyer-client—all these are examples of fiduciary relationships.

In Guerin, those principles were applied to the relationship between the crown and aboriginal people. The case had to do with the surrender of reserve land and the disposal of that land. It was found in this case that the crown not only owed a fiduciary duty, but also breached its fiduciary duty.

The concept of fiduciary relationship and honour of the crown was further expanded in a critical case in aboriginal law—the 1990 Sparrow decision. I suspect members are familiar with this case. It referenced both the fiduciary relationship and honour of the crown in interpreting and applying section 35 of the Constitution Act 1982. That's the provision that provides constitutional protection for aboriginal treaty rights. The court said that those rights are not absolute, but if the crown is going to affect the rights adversely, then it must do so in a way that upholds the honour of the crown and is consistent with the special fiduciary relationship that exists between the crown and aboriginal people.

Following on Sparrow, there were references in various cases in the 1990s to honour of the crown and how it applies to or is at stake in all dealings between the crown and aboriginal people.

There was a case in 1996, called Badger, that dealt with treaty rights on the Prairies; and, perhaps most telling, in 1999, there was the Marshall decision that dealt with the peace and friendship treaties in the Maritimes and found that the Mi'kmaq have treaty rights to harvest and trade traditionally harvested resources with a view to attaining a moderate livelihood. Justice Binnie, who wrote the majority reasons in that case, relied very much on honour of the crown, saying that the honour of the crown almost dictated the result, dictated the interpretation of the treaty in that case.

The next sort of milestone, in a sense, was in 2002. There was a decision of the Supreme Court, again written by Justice Binnie, on fiduciary relationships, fiduciary duties, called Wewaykum. It did not involve section 35 rights, but it provided general guidance on the scope of the crown's fiduciary duties. The judgment spoke of the need to have a cognizable Indian interest and the crown undertaking a discretionary control of that interest, and in those kinds of circumstances a fiduciary duty would apply. One thing that was said in that case is that while there is a fiduciary relationship between the crown and aboriginal people, not every aspect of that relationship gives rise to fiduciary duties. That had been said in previous cases but was confirmed in Wewaykum.

Perhaps the most important decision around honour of the crown came two years later, in 2004, and again I'm sure it is well known to the members of this committee: the Taku River decision and Haida Nation decision of the Supreme Court. That was the case that found there was a legally enforceable duty to consult when the crown was going to make decisions that could adversely affect claimed, not just established, rights. The source of that duty, while it was connected with section 35 of the Constitution Act, was the honour of the crown.

In 2005, there was another case before the Supreme Court, called Mikisew Cree First Nation. That just developed a little further the concept of honour of the crown and applied the duty to consult to established rights, as well as claimed rights. That case involved a treaty right to hunt and the attempt by the crown to take up for the building of a road some land where the right to hunt existed. Perhaps very importantly, one of the opening statements in that case made a quite critical statement regarding the modern law of aboriginal rights, again written by Justice Binnie. He indicated that the fundamental objective of modern aboriginal law is the reconciliation of aboriginal peoples and non-aboriginal peoples and their respective claims, interests, and ambitions. The idea of reconciliation wasn't new. It had been referred to in some earlier cases by Justice Lamer when he was chief justice, but this kind of nailed it in the Mikisew Cree decision.

Between 2005 and 2009, there have been various lower court decisions. The Supreme Court really hasn't had the opportunity to explain further what the concept of honour of the crown means. The results have been variable. In some cases, the lower courts have relied on honour of the crown.

There is a case called Abenakis of Odanak, wherein the Federal Court of Appeal spoke about honour of the crown in the interpretation and implementation of the Indian Act, saying that the minister had an obligation to act honourably to make the act work. It was a case involving a first nation taking control over its membership.

There is a case where honour of the crown as certainly a duty to consult is actually still before the courts, and is in fact going to the Supreme Court in November. It's a case called Little Salmon Carmacks First Nation. That involves the role of the duty to consult in the context of a modern treaty. It may or may not be an opportunity for the Supreme Court to talk a little more broadly about the honour of the crown.

On the other side of the coin, some lower courts have indicated that yes, the honour of the crown is very important, but it is not applicable in all circumstances. There are a couple of cases in which appeal courts have indicated that the honour of the crown does not apply normally in litigation, so that where there is what is normally an adversarial process, the crown does not have to act in accordance with honour of the crown and that litigation is sort of controlled by its own rules.

It's a very minor case—well, I'll say a minor case—and a lower level decision, but it's probably one that's going to get revisited in other circumstances. It is indicating that while the honour of the crown is a source of legal duty, it isn't actually a cause of action in and of itself. It doesn't automatically give rise to legal remedies because, say, the crown hasn't acted honourably; it somehow has to be linked to some other form of legal duty.

Just to sum up, I would say that the honour of the crown as a source of legal duty is relatively new. While there have been references to it over the years and the courts have made clear that it's something that actually arose on the assertion of sovereignty, so that it does have a historical element, as a source of legal duty it's relatively new and in fact was only set out clearly in 2004 in the Haida Nation case.

So while the Supreme Court has provided some general direction on what the honour of the crown means, the nature and scope of it are very much under development. To date, lower courts looking at the principle have been fairly careful and cautious in extending the honour of the crown beyond where it already seems to exist. It's the duty to consult. It can give rise to fiduciary duties in certain circumstances, and it is clearly very much an aid to interpretation, both of statutes and treaties and indeed the implementation of treaties.

But having said that, I note that the honour of the crown is a broad and flexible concept. It's still under development, so it certainly has the potential to be the source of additional legal duties. In that regard, I guess there will be further developments as cases come before the courts.

Those, Mr. Chair, are my opening remarks. I obviously welcome questions.

[The Chair, Conservative, Bruce Stanton]

Thank you very much, Mr. Pryce.

With that, we will go directly to questions, as you invited us to do.

For the members who came in while we were getting under way, I'll point out that we are going to go with five-minute rounds initially so we can get more questions in. I should add that we do have some committee business to deal with, for which purpose we'll try to reserve 15 minutes, starting at 12:45. So we'll begin....

Madam Crowder.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

On a point of order, Mr. Chair, I'll agree to the five minutes this time, but we do have an order that the committee passed for rounds and the number of minutes allocated for questions. It seems that you're falling into a pattern of reducing the number of minutes on that first round. I just think that we do have those rules in place and we should respect them.

However, I will agree with the five minutes this time.

[The Chair, Conservative, Bruce Stanton]

I would say, Ms. Crowder, that you're absolutely right. It's my preference also to stick to the seven-minute rounds. When we get pressed for time, as we talked about today, we would normally go past one o'clock, but we have the Liaison Committee beginning right at one o'clock. It's difficult for us to go past the normal time.

But I take your point to heart. We'll make sure that we abide by those rules in every case we can.

We'll begin the first round, then, with Mr. Bagnell, for five minutes.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you very much, and thank you for your paper. I know there is much interest in the committee in it, so it's great. And if new things arise, it would be helpful if you sent it off to the committee.

I know you're a lawyer, which is great, but I wonder if you could explain for the man in the street, in Tim Hortons, what these two concepts mean. In particular, my understanding would be that the fiduciary relationships would be related to some financial obligations that the federal government has in oversight and responsibilities of stewardship, with the honour of the crown being much broader, suggesting in general that the crown should be honourable in its dealings with first nations, that in its negotiations and following up of ancient treaties and everything else, it should do that as honourably as possible.

Maybe you can try to put it in common language, either of you.

[Charles Pryce]

Thanks for that question. Does the five minutes include my response?

You're right that right at bottom is the notion of reconciliation, that that's the purpose of aboriginal.... Above that, the honour of the crown is almost like the bedrock. Then pursuant to the honour of the crown there may be some political or moral imperative, and then as a matter of law it begins to have some traction over things like aids to interpretation of statutes and treaties. Where there isn't specific enough interest at play, it can be the source of duties like the duty to consult. The Supreme Court was clear in Haida that because there wasn't what they call cognizable interest, the source of the duty to consult was honour of the crown rather than fiduciary duties.

So yes, fiduciary relationship and duties are like a subset of the honour of the crown, it would appear, and it is more engaged once you have particular interests. It actually has two aspects to it. One is in connection with section 35 of the Constitution Act. There are fiduciary duties not to adversely affect those rights unless the adverse impacts can be justified. In that sense it's not just about money, because there could be hunting rights, fishing rights, self-government rights of first nations that the government may be impacting on. The fiduciary relationship is relevant there, and the crown must conduct itself in accordance with fiduciary relationship or honour of the crown. It's engaged.

Fiduciary duty as it's normally thought of outside aboriginal law--and it definitely applies inside aboriginal law--is, as you've said, more seemingly to do with assets, and the cases that have come down so far are principally about reserve land and Indian moneys that have arisen once reserve land is disposed of. So you have the cases like Apsassin, Blueberry River, and in those instances the crown is almost like a trustee--they say it's not a trust exactly--where there's no competing interests, and yes, indeed, the crown is held to a high standard in dealing with those lands or property.

[Larry Bagnell, Liberal, Yukon, YT]

Could you say that the fiduciary is related to some stewardship of the crown, responsibilities of the crown, which it has for aboriginal people where the honour of the crown could also apply to where they're negotiating as equals for whatever purpose?

[Charles Pryce]

I think that's probably fair, and the whole negotiation side is a very interesting aspect because the Supreme Court in Haida did actually reference that, saying that as part of the process of reconciliation and respect for section 35 rights there was a kind of obligation--I'm not sure if it's a legal or a moral obligation--to enter into negotiations and achieve a just settlement of claims to aboriginal rights.

So there certainly would appear some role to play in honour of the crown in the context of negotiations. Exactly what role is unclear at this point.

[Larry Bagnell, Liberal, Yukon, YT]

That's about it.

[The Chair, Conservative, Bruce Stanton]

We will now go to Mr. Lemay for five minutes.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

My question is specific as well as general in nature.

When I read the decisions of the Supreme Court, I always get the same feeling. It was the same when I was studying for my law degree. I have always felt that first nations were poorly defended by the federal government, despite its fiduciary obligation toward them. This government's priority has been to protect itself, in the interest of the Crown. That has always been the overarching consideration. I don't know if you understand what I'm saying.

When the time comes to defend the interests of first nations, the federal government finds itself in a blatant conflict of interest situation. Rarely have I seen decisions where the federal government sided with aboriginal peoples. We talk about the honour of the Crown. From the decision in Sparrow on down to the Haida decision, it is clear to me when I look at these cases. I have to wonder who has priority consideration, because the rulings always go against first nations.

An upcoming appeal that will be heard by the Supreme Court is one of the best examples of this. I'm referring to the McIvor decision. The federal government is against the appeal. Given that the court will rule on this important legal matter, one would have expected... You might think that this is a little off point, but to my way of thinking, the honour of the Crown is a much broader concept than that.

Do you not think that you are caught in the middle? You represent the Department of Justice. Your colleague, Mr. Prystupa, is from the Department of Indian and Northern Affairs. Do you not find yourself caught in the middle, trying to defend the federal government and the honour of the crown at the same time?

You can use the remaining time to try and convince me.

[Charles Pryce]

Thanks for that question, Mr. Lemay.

I think it's fair to say it is a challenge, and I have heard that question before. I'm not sure if this is going to convince you, but in all instances what the courts recognize, even under honour of the crown and fiduciary duty, is that the crown is in a unique position. They talk about how the crown wears many hats, and even when the aboriginal interests are at the forefront, it is still acting as a government of all Canadians, so there's always some balancing going on.

So while it is challenging, I would say it's not impossible for the Department of Justice or particular government departments to act consistently with honour of the crown and fiduciary obligations.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Your salary is paid by the federal government. When I pay someone, that person must be in my corner. That is where I have a problem. Shouldn't the government appoint an ombudsman to handle all aboriginal issues, thereby taking this burden off your shoulders? At some point, you are clearly in a conflict of interest situation.

I will let you finish answering the question because I know that we do not have a lot of time remaining.

[Charles Pryce]

I think it's an issue that has been raised. I'm not sure whether there is support for that.

You asked for an example of where the crown has sided with aboriginal people. There's one that comes to mind. There was a case called Glass that went to the Supreme Court of Canada. It was to do with the management of Musqueam lands and some leases for development, where as fiduciary the crown was actually arguing on precisely the same basis as the first nation. So it can happen that we are on the same side as first nations. It's not by any means always the case, but it does happen.

[The Chair, Conservative, Bruce Stanton]

Thank you, Mr. Lemay and Mr. Pryce.

Go ahead, Ms. Crowder.

For your benefit, Ms. Crowder, I think we will have time for a second question for you on this five-minute round--just to let you know.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Thanks for coming. I think you are probably well aware that this is a very complicated matter.

I want to come back to a couple of points, and I want to thank the research people for a very good document.

My understanding of this, and I'm not a lawyer, is that really the honour of the crown and fiduciary responsibility is actually grounded in the Royal Proclamation of 1763. That's kind of the root document that establishes, in my understanding, that there was this recognition of not ceded territories. I don't have the whole document in front of me.

Certainly from a first nations perspective, my understanding is that they looked at this royal proclamation as the document that recognizes the nation-to-nation status. So the honour of the crown, in my understanding of their view, is that it is rooted in the Royal Proclamation of 1763.

Then we have hundreds of years of a colonial approach that in fact prevented first nations from taking their cases to court. It wasn't until recent decades that they have actually been able to litigate on behalf of their people in terms of the honour of the crown, fiduciary responsibility, treaty lands, and all of that.

Once they actually are able to get into the courts, we start finding that the supreme courts are generally making some rulings around honour of the crown. I think in your own presentation you indicated that actually this started in 1984. It may have been completely clarified in 2004 with the Haida decision, but it actually started in 1984.

I don't have time to go through them all, but we have a variety of Auditor General reports that talk about treaty implementation and about the fact that the government does not honour the spirit and the intent of these treaties. We now have the Land Claims Agreements Coalition, which includes people from Yukon, and on and on, because the government doesn't appear to be honouring the spirit and intent of those treaties.

I wonder if you could tell me, in principle, how the government is moving to incorporate the honour of the crown into its dealings with first nations.

[Charles Pryce]

Maybe I'll start, but maybe my colleague will have some comments too.

In part response, I would say things obviously are not perfect. It's interesting that you raised the issue of treaty implementation, because I think that is an example.

The Supreme Court did say in Haida, and certainly in Mikisew Cree, that the negotiation of treaties is part way to achieving reconciliation, and that honour of the crown plays a role both in interpretation and implementation of those rights. What I can say is that certainly there's a recognition of the need to implement the treaties properly. I think there may be a difference of view. You mentioned not living up to the spirit and intent. It's both good and bad.

It's unfortunate I'm a lawyer, because I do tend to look at things as to what are the legal obligations and then think that's what was agreed to in the treaty. Then there may be broader objectives that the government or the parties can move toward, but it isn't necessarily a legal obligation. But as I said, I think there may be some differences of view.

I recall some of the discussions around treaty implementation, and I think it was Jim Aldridge who fashioned the phrase that government sees a treaty as a divorce settlement, that you just do the strict legal obligation. Aboriginal people see it as a marriage settlement, that there's an ongoing relationship. I'm not sure how accurate that is, but it does catch a certain kind of dynamic.

I think the government is certainly seeking better ways to implement the treaties. I know there is work going on with Indian Affairs that they're trying to pull together. What I think is being recognized is that these obligations are obligations of government, not only of DIAND, so there is a need to develop some greater consistency.

Maybe Mr.—

[The Chair, Conservative, Bruce Stanton]

Mr. Prystupa, did you want to add anything?

[Mark Prystupa, Associate Director General, Negotiations - Centre, Treaties and Aboriginal Government, Department of Indian Affairs and Northern Development]

I will just keep on the theme. You asked generally about how we try to incorporate honour of the crown into government dealings. As Charles said, it is an overall federal government responsibility, not just that of Indian Affairs.

With respect to honour of the crown, my personal feeling is that a lot of times it just makes good business sense. Sticking with the theme of implementation, if you're doing good in terms of implementation, then you're more likely to have better relationships that can extend to other areas and so on.

Yes, there has been an Auditor General's report. The Land Claims Commission has been critical of Canada in terms of the way we implement. As Charles said, a lot of that has to do with misunderstanding, having different interpretations of what the obligations are for Canada, for the aboriginal group, and for provincial or territorial governments.

As we are getting more and more agreements, we are beginning to become better able to systematize. I think we are continuously trying to improve. One of the areas that I think needs improvement is sometimes there might be agreement that almost everything has been implemented except for a couple of issues, but it is hard to deal once and for all with those issues to get them resolved.

[The Chair, Conservative, Bruce Stanton]

We will have to leave it at that; we're a little over.

Let's go to Mr. Duncan for five minutes.

Mr. Duncan.

[John Duncan, Conservative, Vancouver Island North, BC]

Thank you.

I was just looking at some background information. It talks about the duty to consult and it says there are several cases wherein the courts have found that the crown breached its duty to consult. None have stopped the proposed action by the crown, but there is now a legal and enforceable duty that is there for our use, albeit imperfect.

Does that sum up some of this discussion quite succinctly, or would you have a different point of view?

[Charles Pryce]

With respect to the duty to consult, I am not sure I completely followed the comment.

Certainly the duty to consult does provide legal remedies. It does allow first nations and other aboriginal groups to challenge government action before there is potential damage to claimed aboriginal rights or established treaty rights. The nature of the remedy is through a process called judicial review, so it's not determining what the rights are; it's not necessarily requiring the government to compensate directly.

What it tends to do is say a decision has been taken that has not taken proper account of the duty to consult and accommodate. It then forces the parties to go back and consult more.