Evidence of meeting #30 for Indigenous and Northern Affairs in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was honour.
A recording is available from Parliament.
12:05 p.m.
Conservative
John Duncan Conservative Vancouver Island North, BC
I am assuming the honour of the crown is at stake in all decisions with all departments, with all stakeholders, but when it comes to the aboriginal, that is what separates honour of the crown from duty to consult.
That is an important distinction, that the duty to consult only applies in the one case, in the case of first nations and aboriginal rights, and the honour of the crown applies across the board. It has been around for centuries, correct?
12:05 p.m.
General Counsel, Aboriginal Law and Strategic Policy, Department of Justice
The honour of the crown was applied relatively narrowly, certainly as a legal concept. I think the political and moral imperative applies across the board. It engages legal duties in particular circumstances, and the duty to consult is a clear example of where that occurs.
12:05 p.m.
Conservative
John Duncan Conservative Vancouver Island North, BC
Can I go to Wewaykum Indian Band v. Canada?
As part of the ruling, it was noted the crown is not an ordinary fiduciary and is obliged to have regard to the interests of many parties. We've had a lot of discussion about the UN Declaration on the Rights of Indigenous Peoples. That declaration does not balance the rights of all Canadians.
I am wondering if you can expand on the Wewaykum court ruling and what that might mean for the federal government.
12:10 p.m.
General Counsel, Aboriginal Law and Strategic Policy, Department of Justice
I can certainly do that, but as I think I said in the opening remarks, and you've just confirmed it, the crown is no ordinary fiduciary, and in any circumstance it is actually having to act for all Canadians, not just aboriginal people. How that actually plays out in the balancing.... It's a much-beloved concept in aboriginal law that aboriginal rights are on a spectrum and that in a sense the nature of the duty and how the balancing occurs is on a bit of a spectrum.
In the case of Wewaykum, which was considered before a reserve was created, there was a greater balancing required between the interests of non-aboriginal people and the aboriginal groups concerned. As the reserve is created, and then beyond that you move to particular transactions related to the reserve and the disposal of land, there is less of a need to balance, so that the actual duty on the crown is closer to that of what I call a “private law fiduciary”. There isn't the same need to balance interests, so the crown can simply act in the best interests of the first nation.
But even at that end, the Supreme Court has been prepared to recognize that some balancing needs to be done.
12:10 p.m.
Conservative
The Chair Conservative Bruce Stanton
Okay, Mr. Duncan. Thank you very much.
Now we'll go to the second round. We'll begin with Mr. Bélanger for five minutes, followed by Mr. Payne, followed by the Bloc.
Mr. Bélanger.
12:10 p.m.
Liberal
Mauril Bélanger Liberal Ottawa—Vanier, ON
It's rather interesting that we're exploring fairly significant and important concepts and we are limited to the five minutes. I find that very frustrating.
Mr. Duncan, I have to take exception to one comment that you were making, that the duty of the crown—or the Government of Canada—to consult applies only to aboriginal people. If you look at part 7, section 41 of the Official Languages Act, that same duty to consult rests there. That was finally put into the act in 2005, supported by the opposition at the time. But it goes further.
I tend to link both, by the way. Perhaps that's because I've been looking into matters of official languages for such a long time.
12:10 p.m.
Conservative
The Chair Conservative Bruce Stanton
Just as a reminder, Mr. Bélanger, we have a second meeting planned, with Mr. McCabe, on this topic as well later, so we will—
12:10 p.m.
Liberal
Mauril Bélanger Liberal Ottawa—Vanier, ON
Yes, I'm aware of that, but I think there's more than a duty to consult, is there not? Isn't there also an obligation to act contained in this concept of honour of the crown?
12:10 p.m.
General Counsel, Aboriginal Law and Strategic Policy, Department of Justice
I'm sorry, I'm not sure I understand the question.
12:10 p.m.
Liberal
Mauril Bélanger Liberal Ottawa—Vanier, ON
Well, we've pretty well determined that there's a duty to consult. As a matter of fact, if I'm not mistaken, there is even, within the department, a protocol to be followed that flows from the honour of the crown decisions or concepts as they are interpreted by the courts, which tries to dictate or to encourage how the consultations and the negotiations are to be conducted.
Is that correct, Mr. Prystupa?
12:10 p.m.
Associate Director General, Negotiations - Centre, Treaties and Aboriginal Government, Department of Indian Affairs and Northern Development
In February 2008 the Government of Canada released interim aboriginal consultation accommodation guidelines, which are available publicly.
12:10 p.m.
Liberal
Mauril Bélanger Liberal Ottawa—Vanier, ON
And that flows from this honour of the crown. Is that not correct?
My question is, doesn't the honour of the crown go beyond the duty to consult to an obligation to act?
12:10 p.m.
General Counsel, Aboriginal Law and Strategic Policy, Department of Justice
I'm sorry. I know I'm not supposed to be asking the questions, but do you mean to accommodate beyond consultation?
12:10 p.m.
Liberal
Mauril Bélanger Liberal Ottawa—Vanier, ON
I mean an obligation to act—not necessarily to get all the results and everything they want, but an obligation to act. The comparison I'd give is that if you go to see a doctor, there's an obligation or a duty to consult. That is the obvious one: to conduct a diagnosis. But then there is an obligation to act, to prescribe. Whether or not the result is as everyone wishes—there's no obligation as to the result per se, because then you're getting into another realm—there's certainly an obligation to act, is there not, that flows from the honour of the crown?
12:10 p.m.
General Counsel, Aboriginal Law and Strategic Policy, Department of Justice
I apologize for being a little dense on this.
It can in certain circumstances require accommodation. This means that while the Haida Nation decision only gives general guidance, it says that you start off with consultation, and that where appropriate there may be a need to accommodate. This means making adjustments to the original proposal in order to take account of claimed interest.
12:15 p.m.
Liberal
Mauril Bélanger Liberal Ottawa—Vanier, ON
I want to push this a little further, and I have two more questions.
One is this. In the Library of Parliament there's a good document called Words & Phrases. That document says, “The generous attitude the law takes to the definition of aboriginal rights is sometimes summarized by the phrase 'honour of the Crown'.”
I want to know whether, in the Department of Justice's mind and perhaps also in that of Indian and Northern Affairs, that concept of generosity is well implemented.
12:15 p.m.
General Counsel, Aboriginal Law and Strategic Policy, Department of Justice
All I can say—and maybe Mr. Prystupa has some additional comments—is that there is certainly an awareness of honour of the crown. Obviously things are not perfect, but it is an understood concept from a legal perspective. When advising, we take into account the concept of the honour of the crown, so there is an awareness. Whether it's always sufficient, I'm not sure. That “generosity” at some level becomes...I won't say subjective, but there can be differences of view as to what the generosity is that is required.
12:15 p.m.
Liberal
Mauril Bélanger Liberal Ottawa—Vanier, ON
Following from laws, the government will set policies and then guidelines. That's the traditional structure, if you wish. Is there a policy, government-wide or even in certain departments, that interprets and gives meaning and a body to “honour of the crown”, such as there is for other laws in the country?
I go back to the Official Languages Act. There is a series of policies in the Treasury Board Secretariat, for instance, that define and prescribe and give obligations, if you will. Is there such a policy government-wide for honour of the crown?
12:15 p.m.
General Counsel, Aboriginal Law and Strategic Policy, Department of Justice
Mr. Prystupa may know differently, but I'm not aware of any such document that speaks directly to honour of the crown. I guess the closest would be these interim guidelines. It's not honour of the crown writ large, but—
12:15 p.m.
Conservative
12:15 p.m.
Associate Director General, Negotiations - Centre, Treaties and Aboriginal Government, Department of Indian Affairs and Northern Development
I was just going to say that to my understanding there is no government-wide policy, but I think that honour of the crown helps to inform several different policies. There are many different policies within each department that would—
12:15 p.m.
Associate Director General, Negotiations - Centre, Treaties and Aboriginal Government, Department of Indian Affairs and Northern Development
I think these interim guidelines are some. I think policies around—
12:15 p.m.
Liberal
Mauril Bélanger Liberal Ottawa—Vanier, ON
Mr. Chair, if I may, with your indulgence....
There's a fairly rigid structure in the federal apparatus, of laws.... Well, there's the Constitution; there are constitutional or quasi-constitutional laws, and legislation there; then you have policy—very strict, very firm policies that are very well-thought out, established, and fairly difficult to modify; and then you have guidelines, as the bottom rung of that tall ladder.
I'm not talking about guidelines here. I'm talking about policy. I'm hearing that there is no such policy, as far as the interpretation and application of honour of the crown is concerned. Is that correct?