Thank you, Mr. Chair.
I hope I can be of assistance in some way, though I'm sure that others who will appear before you will have much more than I to say about the actual working out of this doctrine of the honour of the crown, and also about their aspirations as to how they would like to see it evolve in the future.
I've read the transcript of your proceedings on October 8, and I see that you had a very good short introduction to the subject, courtesy of Mr. Pryce, from the federal Department of Justice.
It seems to me that the best thing I could do in just a few minutes is present a brief summary of the development and the role of the doctrine of the honour of the crown as it has been worked out by the Supreme Court of Canada.
It's important to appreciate, I think, that the doctrine as it applies to aboriginal peoples is very much the creation of the Supreme Court of Canada, and mostly in the last ten years or so. The little note that I sent to the clerk, which I expect you have, is a kind of running account of the court's shaping of the law through the cases, eventually settling on the doctrine of the honour of the crown as a key doctrine and then working out some of the important effects of the doctrine in the cases.
What I'd like to do is take a couple of minutes to take you through that document, if you have it. It begins with what the court has said about the pre-1982 circumstance in Canada. You can see that there are three short excerpts from cases in the document.
From the Sparrow case, there can't be much doubt that over the years the rights of the Indians were often honoured in the breach. We cannot recount with much pride the treatment, and so forth.
In the Marshall case, in 1999—this is the case from Nova Scotia that had to do with the taking of eels by Mr. Marshall and some of his colleagues—Justice Binnie, who wrote the majority reasons in that case, pointed out that until the enactment of the Constitution Act, 1982, the rights of the aboriginal peoples in Canada could be overridden in the same way the rights of any of us can be by competent legislation.
Then there is the Mitchell case in 2001, along the same lines: that aboriginal rights and treaty rights were vulnerable to actions essentially by Parliament, in delegated legislation, until 1982.
Then we have the Constitution Act, 1982, section 35, which is really the watershed event when we're speaking of the law of aboriginal peoples, aboriginal rights, and treaty rights in Canada. In 1982, as part of the patriation that occurred, we have our new constitutional instrument. Subsection 35(1) says:
The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
The court was of course faced with the question, what does that mean in practice? I think it's important to recognize that at the time many people said things such as: “That's all very nice. The court will acknowledge that the Constitution now says that the rights of the aboriginal peoples are now recognized and affirmed and will carry on business as usual.” Some of you will recall that essentially this happened with the Bill of Rights many years ago.
But the Supreme Court didn't take that tack at all. Beginning with the Sparrow case in 1990, the court told us that it was going to apply what it called a “purposive analysis” to section 35. That means it has a purpose. It isn't just those innocuous words on the page, “the rights...are hereby recognized and affirmed”, and that's the end of it. This has a purpose; it's supposed to take us somewhere. They told us that in Sparrow.
Turning to the next item, on the second page, the Supreme Court revealed in the course of time what that purpose is. It turns out that it is reconciliation. Our law in this area is purposive, and the purpose is reconciliation. You can read those excerpts there from Van der Peet, the reconciliation of the fact that the aboriginal peoples were here before the Europeans, before other people came to these shores, so there is a need to reconcile that presence and the fact that there were existing societies and existing laws at that time with the sovereignty of the crown and with the rights and interests and aspirations of the rest of Canadian society, of which the aboriginal peoples are part.
So it's reconciliation. When you come to the Mikisew case in 2005, Justice Binnie, writing the reasons for the court, starts off with this first sentence:
The fundamental objective of the modern law of aboriginal and treaty rights is the reconciliation of aboriginal peoples and non-aboriginal peoples and their respective claims, interests, and ambitions. The management of these relationships takes place in the shadow of a long history of grievances and misunderstanding.
Beginning shortly after 1982, with the Nowegijick case in 1983, the Supreme Court begins to equip themselves and the rest of the Canadian judiciary with a series of doctrines, which in the course of time will be the means by which this reconciliation—which is the purpose of the law—is going to be achieved. They tell us that in the interpretation of treaty rights, of statues having to do with aboriginal peoples, the interpretation of the Constitution itself, we need to apply a principle of generous interpretation.
Secondly, aboriginal and treaty rights were extinguished prior to 1982. And when you just read the bare text of the constitutional provision, you wonder about all that went before. The court says that there was extinguishment of aboriginal and treaty rights only if that intention of the crown in the legislation, or whatever, was abundantly clear and plain. This is illustrated, for example, in the game and fish realm. Over the years, of course, the rights of aboriginal peoples in Canada to take game and fish had been regulated in many different ways, in terms of bag limits or seasons or means by which the fish and wildlife can be taken. There was an argument that what the Constitution recognizes and affirms are the existing aboriginal rights of the aboriginal peoples must mean existing as of April 17, 1982, with all of these attendant regulatory impingements that had occurred over the years.
The court said no, that these rights continue in their pristine form, and the fact that this regulation took place doesn't mean anything in that respect. If there had been extinguishment, we'd have to be persuaded that the intention of the crown was clear and plain in working that extinguishment.
In other doctrines, aboriginal peoples retain significant autonomy, and the federal Indian Act seeks to strike a balance between protection on the one hand, and autonomy on the other hand. Then both the aboriginal peoples' perspective on their rights and that of the common law must be accorded weight. Again, we're working through these doctrines that the court has propounded.
I have listed here that the crown has fiduciary duties judicially enforceable by private-law remedies, such as compensation, or injunction where that's important, where the crown's activity engages specific cognizable—as they say—legal interest of an aboriginal people. It's basically land interests, money interests. The crown is first cousin to a trustee. That's a cognizable Indian interest, and the crown could have fiduciary duties enforceable by private-law measures in that circumstance.
Justice Binnie helpfully adds, I think it's in the Wewaykum case, that a quasi-proprietary interest, for example reserve land, is a cognizable legal interest that there might be a fiduciary duty in relation to, but a government benefits program is not. That is not the kind of thing the government has a fiduciary duty to in relation to the aboriginal peoples.
The last two are very important. Aboriginal rights and treaty rights aresui generis, unique. That means that the court is in a position to shape those rights, to explain what they mean, to examine all of their permutations and combinations, and create law as it goes along. I don't mean to be cynical. I don't have any intention at all about being cynical, because it is in a worthy cause, by and large, but if a right is sui generis that means just wait; we're going to tell you what it means. The court has put itself in a position where it can define the nature of these rights. They are sui generis.
Then the last one, the one this committee is interested in at the moment, is the doctrine of the honour of the crown. The honour of the crown is always at stake in its dealings with aboriginal peoples, the courts have told us, and therefore the courts require that the crown act in accordance with courts' assessments of what constitutes honour in the specific circumstances of particular cases.
These last two doctrines clearly have the most potential to be worked out and expanded and shaped, the sui generis nature of aboriginal treaty rights and the honour of the crown.
On the honour of the crown, I have tried to identify here in the last page or so of this document five important ways in which the honour of the crown has been put to work as a means to achieve reconciliation.
