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

[Mark Prystupa]

That's right.

[The Chair, Conservative, Bruce Stanton]

Thank you, Mr. Bélanger.

Thank you. I'll have to let you think about that. If there is something more afterwards, maybe we can consider it as a follow-up.

Now we are going to Mr. Payne for five minutes.

[LaVar Payne, Conservative, Medicine Hat, AB]

Thank you, Mr. Chairman.

I am much like Madam Crowder; I'm not a lawyer, so I don't have quite the legal understanding of this fiduciary obligation of the crown. I'm wondering whether you could help me out. Is this a one-way relationship, or does it work for both of the parties?

[Charles Pryce]

As I mentioned before, I think what the courts have said is that the goal of the modern law of aboriginal rights is reconciliation, and that's a two-way street. When you think about honour of the crown—and let's think particularly about the duty to consult—it is a two-way street. That manifests itself in a couple of ways—or probably more than a couple, but I can think of a couple of examples.

There's a duty on the crown to consult in certain circumstances, but then from the aboriginal side there's a need to identify what their claims are with some particularity. It's not just an open-ended process; there is no veto. Depending on the circumstances, the consultation can be an exchange of information leading to deeper consultation, but at the end of the day, consent is rarely if ever required. Instead, the crown can still act unilaterally, but it will have had to take certain steps relating to consultation.

As Mr. Bélanger has pointed out, there can in certain circumstances, depending on the adverse impact, be a need to accommodate the concern. It is a two-way street.

[The Chair, Conservative, Bruce Stanton]

I there anybody else? I have Mr. Rickford on the list as well.

Mr. Rickford, you have another two and a half minutes remaining.

You want me to move on.

You have five minutes, Mr. Lemay.

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

The honour of the Crown is a rather unique concept rooted in the Royal Proclamation of 1763. This concept has been greatly expanded on by the courts. I understand that there are no guidelines or procedural directives. Since we are still part of the British empire, the laws of Britain still apply.

Do you not think that the honour of the Crown is a somewhat overworked concept, one that has served more to defend the Canadian government?

I want to thank Ms. Hurley for the tremendous work that she has done. The notes that she has prepared for us address all of the hot points directly. I think our interpretation should be based on the following excerpt from the Royal Proclamation of 1763:

[...] it is just and reasonable, and essential to our interest, and the security of our colonies, that the several nations or tribes of Indians with whom we are connected, and who live under our protection, should not be molested or disturbed in the possession of such parts of our dominions and territories as, not having been ceded to or purchased by us, are reserved to them, [...]

Slowly, beginning in 1800, the federal government attempted to restrict the scope of this provision. It should be a given that first nations have priority. If they have not ceded their rights to their lands, well then too bad, the lands belong to them.

That is not what I seem to hearing. Since when has this concept changed? The fundamental principle at issue initially was defending the interests of aboriginal peoples. Now it's become a matter of defending the Crown in cases involving the rights of first nations.

[Charles Pryce]

It's a difficult question to respond to, but I'll do my best.

The honour of the crown is certainly evidenced in the Royal Proclamation of 1763. In a case called Mitchell, Chief Justice McLaughlin said that on the assertion of sovereignty there arose a duty to treat aboriginal people fairly. There was a statement in that case. So in a sense her proclamation is evidence of that approach. I think that in the intervening period of colonization there was a general understanding that it was difficult for aboriginal people to establish and vindicate their rights.

The big change that occurred was in 1982--part of the patriation of the Constitution and the passage of section 35. It gave real legal effect to those rights. Prior to 1982--and certainly prior to 1973 and the Calder decision--there was not a great deal of legal recognition of the rights. The government's position until Calder was that aboriginal rights were too vague to be legally enforceable. So that changed with the Calder decision. Then there was a further change in 1982 to make them not only legal rights but constitutionally protected.

So there has been a change in the legal landscape. How well the federal government or the provinces do in respecting those rights is now monitored, in a sense, by the courts through cases dealing with section 35. As the Supreme Court has said, the best way to deal with the claims of aboriginal people is through negotiation. And as Justice Lamer mentioned in the Delgamuukw case, the best way is through negotiations informed by judgments of the court. So there is an interplay between developments in the law and negotiations between the parties.

[The Chair, Conservative, Bruce Stanton]

Unfortunately, your time is up.

You have five minutes, Mr. Rickford.

[Greg Rickford, Conservative, Kenora, ON]

Thank you, Mr. Chair, and thank you to the witnesses for coming today.

This can be terribly complicated, and as a lawyer who has spent a fair amount of time grappling with this, either academically or in practical terms, I am not sure being a lawyer actually gives much benefit to you in terms of too many sleepless nights, either at law school or in certain situations.

My work historically in northwestern Ontario, in the great Kenora riding, has been to deal with some of the practical implications of these decisions as they've evolved, obviously from the distinction in fiduciary duty for the interests of aboriginal groups and discretionary power on reserve land, which flows from Guerin, and in Sparrow, the obligation to respect constitutionally protected aboriginal person or treaty rights and the justificatory test for those rights.

In my view, Sparrow started a thoughtful discussion, at least in the courts, on enhancements of participation in activities and traditional activities. That is a very brief overview of those decisions that are fact-driven.

The Haida decision expounded further on economic opportunities, and that's really where I want to go in the three and a half minutes I may have left.

This committee has been dealing with a number of important issues around the Indian Oil and Gas Act, and we're going to undertake a study that looks thoughtfully at economic development. If we take a look at some of the extrajudicial considerations, the RCAP report has in it a differentiation between fiduciary relationships and obligations, a statement that said it doesn't necessarily give rise to legally enforceable fiduciary rights, just that there could be a fiduciary obligation, but that relationship wouldn't necessarily give rise to the rights.

This is kind of important to understand, because we need to understand, as a matter of policy and as a matter of legislation, how in balance and in context economic development can proceed and first nations communities can participate substantially in a fully integrated—and I mean this in an economic sense—manner.

The example, of course, is in my own riding: the Whitefeather Forest—Two Feathers Forest Products initiative, which deals uniquely with provincial crown obligations under forestry management and the relationship of the nations with them, and then the role of the federal government either collaterally or in an ancillary or complementary capacity.

I wonder if you could comment on some of the extrajudicial considerations and the impact they may have, not just on the development of the law but implications for economic development, particularly more in keeping with Sparrow and the idea of enhancing economic participation in traditional lands, because there's another important balancing act. One community wants to develop a resource on traditional lands and the other ones want to protect it for very sound environmental principles.

There are a lot of dynamics that have to be considered here. It's a big question, and I am sorry for offending the richness of a lot of decisions in three minutes. Could you comment on that?

[Charles Pryce]

Maybe Mr. Prystupa can pick up on this, as it's extrajudicial.

My only comment is yes, it is a challenge to meet these competing objectives in terms of respect for the distinctiveness of aboriginal people and their rights and also to proceed with economic development.

It is a challenge, but potentially it is through mechanisms like consultation, properly followed through, that you can achieve that balance. I think you're right that much of what the courts have been telling us is around trying to provide economic opportunity to first nations through respect for aboriginal claims, aboriginal rights, etc.

[Greg Rickford, Conservative, Kenora, ON]

Mr. Prystupa, I saw you nodding. I'd love to hear your thoughts on some of this.

[Mark Prystupa]

This is another aspect. I'll touch upon consultation, because I think that's important.

Through consultation we have a better understanding of what the aboriginal interests are. At the same time, I think it's good practice, because we're able to formulate proposals or decisions that help support economic development while discharging our legal duty to consult, and so on.

One thing we need to do is to find a way to do it efficiently and effectively. That's what we're working on: being consistent across government; giving training to people from different government departments on how to consult, and making sure we're consistent; and building a repository of information on different first nations claims and assertions, so that when a development project is being proposed we can go out and do the consultation quickly, effectively, and efficiently so that we can move forward with economic development where it appears it has the support.

[The Chair, Conservative, Bruce Stanton]

Thank you, Mr. Rickford.

[Greg Rickford, Conservative, Kenora, ON]

I share my colleagues' concerns about the five-minute round. Two or three more minutes would have made the difference.

[The Chair, Conservative, Bruce Stanton]

That's particularly true with a topic like this, but we're doing okay time-wise. That's why it's good to move along. Let's move to Ms. Crowder for five minutes, after which the government has indicated that they do not have any more questions.

I have Mr. Bélanger and Mr. Tonks on the list. Do you wish to split? Okay.

Ms. Crowder.

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

Great. Thanks. There is a challenge with the five minutes.

I want to refer to a question about whether first nations have a duty to act honourably. I want to refer to First Nations Strategic Bulletin volume 5, issues 4 and 5, which you won't have in front of you. I'll try to summarize it.

It's quite a lengthy discussion on the duty to consult. It asks whether there is a duty on first nations to act honourably. In the discussion, it indicates that the honour of the crown forces it to act honourably in dealing with aboriginal rights, even their assertive rights. The goal is to achieve reconciliation with aboriginal peoples. The duty to act honourably is a legal duty, and it arises because of the power the crown holds over aboriginal peoples. It goes on to conclude that first nations do not have a legal duty to act honourably, but they do have a duty to reciprocate in good-faith consultations once the crown has made a commitment to consult in good faith with them.

I wanted to put that on record, because I think it's a slightly different interpretation from the one you referred to. This was put forward by a member of the Indigenous Bar Association. But that's not my question.

I want to come back to the misunderstanding around spirit and intent. I think it's an important issue. In 2003, the Auditor General found that INAC seemed focused on fulfilling the letter of the land claims implementation plans but not the spirit. Officials made believe that they had met their obligations, but in fact they have not worked to support the full intent of the land claims agreements. The Land Claims Agreement Coalition put together a document on May 12, 2009, that says that the evidence is extensive that the Government of Canada has failed to implement the spirit and intent fully and meaningfully.

As to the honour of the crown, many first nations feel that when the government fails to meet its obligations, they're forced into expensive litigation that they cannot afford. They don't always win, but they win often, because the government is not fulfilling its obligations on spirit and intent.

I wonder if you could tell the committee what actions the government has taken to bring together both parties to clear up the misunderstandings about the obligations. This seems to be at the heart of it. We talk about economic development and social conditions, but they won't progress until we implement some of these treaties.

[Mark Prystupa]

I spent a lot of years as a negotiator. Sometimes you write down text that at the time seems clear to the people who are negotiating. Later on, though, when other people are looking at the document, it can take on a different meaning. It's sometimes difficult to state what the meaning was when it was being negotiated. I think that accounts for some of the problems in interpretation and bears on our understanding of spirit and intent.

With respect to your question, I'd like to follow up with a written report.

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

That would be great, very helpful. This is something the committee hears about regularly, the lack of movement on spirit and intent. It would be helpful if we could see some progress being made.

Is my time up?

[The Chair, Conservative, Bruce Stanton]

You still have a minute and a half.

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

Oh, I do? That's a relief!

I understand the adversarial positions that we end up taking in court, but is there a move towards a less adversarial approach? I had a grand chief from northern Quebec approach me about a mine that's going into their territory, and they were not consulted. Essentially, they've been told that it's too bad and to take it to court. They simply don't have the money. No one has acknowledged that they weren't consulted. In order to have their rights of consultation taken into account, they're being forced into the court system, which they can't do. That kind of approach isn't helpful. I wonder if you could comment on whether there is a move away from the adversarial approach and towards reconciliation.

[Mark Prystupa]

I think in all cases we try to have more of a sort of collaborative approach. Certainly there are some negotiation tables we're at that are very interest-based and we try to progress together. At other tables, where the issues are perhaps more tense, it's more difficult to do that.

In the case of consultation, what we try to do is consult in almost all cases, and we encourage industry to consult as well beforehand, but understanding that the duty rests with the Government of Canada. And we try to develop and foster those good relations with aboriginal communities.

[The Chair, Conservative, Bruce Stanton]

Okay, we'll have to leave it there. We're going to go to Mr. Rickford for five minutes, and then we'll wrap up with Mr. Tonks and Mr. Bélanger.

Mr. Rickford.

[Greg Rickford, Conservative, Kenora, ON]

Thank you.

So just to continue where I might have otherwise gone with my extra couple of minutes, and I'm not sure I can get there but I'll do my best, I spoke about RCAP and the differentiation between fiduciary relationships and fiduciary obligations and that it doesn't necessarily give rise to legally enforceable fiduciary obligations, which was then in substantive law endorsed by Wewaykum Indian Band v. Canada.

I think there were four principles that came out of there. First of all, it was important to note that we moved beyond section 35 rights on existing reserves, and it importantly identified things around general indemnity and said this varies with the nature and importance of the interest for either party.

Then further, I alluded to the fact that this is no ordinary fiduciary duty. So when we turn to Wewaykum and we look to at least part of that ruling, we see that the crown is not an ordinary fiduciary and it does have to pay serious attention to the interests of many parties, which would include other jurisdictions within Canada.

I find this interesting because now we start to talk about the United Nations declaration, and of course there are some important things to think about in there. But in the context of the duty to consult, one of the concerns is that first nations already have entrenched constitutional rights vis-à-vis section 35, and the case law itself is advancing, in my own view, some fairly positive—as a matter of policy and law—opportunities for first nations to be involved in economic activities or environmental activities, both protectionist and preservationist in nature, to develop partnerships with private-public and private stakeholders. So, for example, Lac Seul First Nation went through the process with Ontario Power Generation and is now a full partner in the hydro dam in Ear Falls.

I'm concerned that some of that doesn't account for some of the great things that are going on in terms of economic activity. So what, in your view, or views, can you comment on further to this discussion around economic activity? At least in my riding, I know and have said on many occasions that the economic future of northwestern Ontario must include, integrally, first nations communities in areas of health, transportation, and resource development management, etc.

Can you comment or expand on, perhaps, the ruling in Wewaykum in light of what I've just created and, to the extent that you want, any concerns you might have with UNDRIP's implications in the context of accommodation and consulting?

[Charles Pryce]

Again, just by way of a general comment, with respect to economic development, no question, I would imagine that having first nations involved is important. With respect to Ontario and maybe your riding in particular, of course a lot of the resources are under the administration of the province, so that engages the province as much as it does the federal government. I'm aware of how the Province of Ontario is trying in various ways to amend legislation, like mining legislation, so that there is—

[Greg Rickford, Conservative, Kenora, ON]

There's forestry management.