Indigenous and Northern Affairs Committee on Dec. 1st, 2009

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

Mr. McCabe, I attentively listened to the presentation you made to us. I read the documents. We're arguing over the Crown's obligation to consult, and we're really discussing it a lot.

I understand that the Supreme Court decisions in Sparrow, Badger, Marshall or others have probably addressed the various aspects of the issue. In any case, we have good guidelines.

How far does the Crown's duty to consult go? On what basis does the Crown have a duty to consult the aboriginal peoples? What are the limits of that duty to consult?

[Timothy McCabe]

There is authority for the proposition that the duty to consult exists when section 35 rights are an issue. In other words, there has to be a showing of an existing aboriginal or treaty right. Also, we have in the cases the idea that there are reciprocal obligations of the aboriginal peoples. We have statements like “The duty to consult exists where there are serious negotiations going on.” In other words, the court, and lower courts as well, has been at pains, I think, to paint the picture that the aboriginal peoples can't just have a pocket veto of a proposal for development. There has to be good faith efforts on that side of the table as well. There can't be foot dragging. I think that's germane to your question about what the limits are. It's when there is a serious effort at negotiation of a section 35 right.

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

Pardon me, I don't want to interrupt your answer, which I find valid. However, if I want to argue the Crown's duty to consult, I must first show that I have an aboriginal right or treaty right. I see you don't agree with me.

[Timothy McCabe]

No. That's the Haida case. You see, the British Columbia government said this right that you're asserting hasn't been proven. The court said there's sufficient grounding for the claim of a right to engage this obligation to consult. That I think is one of the main points of that Haida case in 2004. The main issue in that case was what about the interim period before the right is proven or before the right is the subject of a treaty? The court said you have to consult where there's a proposal that might adversely impact the claimed right.

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

I'll review what you've just told me. I'm not challenging your remarks, of course. I would simply like to understand.

Let's take this assumption: the Algonquin peoples received the Proclamation of 1763 and they are part of it. So everything north of the Ottawa River belongs to them. However, if works were to be carried out in that area, not necessarily hydroelectric works, but works such as mining exploration, logging, hunting and fishing regulations, would you go so far as to say that the Haida decision applies and that, consequently, the Algonquin aboriginal peoples should be consulted?

[Timothy McCabe]

Yes, I think that's the lesson of the Haida case. If there is a proposal, if there's going to be activity for some change in the landscape, we'll say, then the duty belongs to the crown, not to the proponent of the proposal, but the proponent will inevitably become involved in it in some way. Yes, it needs to consult. It's a two-way street, the consultation. If a sufficient case can be made that there is going to be substantial impact on this claimed right, then accommodation measures would be proposed and negotiated and so forth.

[The Chair, Conservative, Bruce Stanton]

You have 30 seconds left.

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

On what basis would the Crown not be required to consult the aboriginal peoples?

[Timothy McCabe]

As I said a moment ago, there's authority for the proposition that if the right claimed or the right established is not a section 35 right--that is, it's not aboriginal title, it's not aboriginal rights, it's not a treaty right, it's just some other interest or aspiration that the aboriginal party has--in those circumstances, the crown needn't consult.

[The Chair, Conservative, Bruce Stanton]

We'll have to leave it at that, Mr. McCabe. Thank you very much.

Merci, Monsieur Lemay.

Now we'll go to Madam Crowder. Go ahead, please.

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

Thank you, Mr. Chair, and thank you, Mr. McCabe.

I'm actually going to pick up the line of questioning from Monsieur Lemay around rights. For us non-lawyers here, you refer, and section 35 refers, to aboriginal rights and titles. I think what's at issue here is how we define aboriginal rights. One of the arguments that we hear fairly consistently as members of this committee is that aboriginal rights, from a first nations perspective, is much more broadly defined than treaty or land claim or development, or those kinds of things. In fact, we've heard it fairly clearly around who gets to determine who is a citizen of a nation. It's going to come up again in terms of the duty to consult around the McIvor decision, which is going to come before this committee at some point, but it certainly has come up around matrimonial real property. The nations talk about the crown having a duty to consult--the honour of the crown is at stake--when it looks at human rights, whether it's matrimonial real property or whether it's determining the right of citizenship.

Can you comment on that duty to consult in the context of rights outside of land claims and treaties?

[Timothy McCabe]

Probably not very helpfully. I think we're probably going to have a very long period in which the Supreme Court of Canada is explaining what is encompassed within the concept of aboriginal rights. As you know from the B.C. cases—the trilogy of cases in 1996, Van der Peet, Gladstone, and the other one that came out of B.C.—the definition of an aboriginal right has to do with practices of aboriginal peoples that go to the very definition of who they are as a people. That's open-ended. What the court is ultimately going to do with that I think remains to be seen. No doubt it's going to be tested. No doubt there will be good attempts made to push that envelope.

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

As you know, it is a challenge for us, when we're looking at duty to consult, about how broadly that consultation needs to happen.

I want to come back to when you were responding to the question about how it's evolving. You talked about the lack of treaties. I'm from British Columbia, where there are few treaties and where we're now seeing some of the nations withdraw from the treaty process because it is so costly and cumbersome. There's a table of sixty-some-odd nations that has developed a protocol for the government. Again, this isn't partisan because this has been going on since 1993. They're simply not seeing the kind of movement one would expect given the amount of money that's been spent. In terms of the honour of the crown and in that kind of process where there aren't the appropriate people with the appropriate mandate at the table, do you see an avenue for them to invoke honour of the crown on this?

[Timothy McCabe]

I don't think I can comment very helpfully on the working out of the B.C. treaty process and the B.C. treaty commission, and so forth. I think the Government of Canada and the Government of British Columbia read these cases; they know there is a duty on the crown to negotiate treaties where they don't yet exist. How that works out in practice and where the fault lies, I'm really not in a position to help.

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

It was rather more than where the fault lies. This isn't about assessing blame; it's about the fact that there's a process that simply isn't working. It would seem, given the court decisions that are out there, that honour of the crown would be an important aspect of attempting to move those treaties forward. I just wondered if you had seen something that might be helpful to those nations to poke both federal and provincial governments.

[Timothy McCabe]

The honour of the crown is at the heart of it. That's why the crown must be at the table.

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

But how the crown is at the table isn't defined. What's happening on some of those treaty tables in British Columbia is the federal government, in particular, has junior negotiators at the table. Again, this is not a current government problem; it's a long-standing problem. You can pay lip service to having somebody at the table and not have any meaningful progress.

[Timothy McCabe]

Yes, well that's a task for your committee, I suppose: to hold their feet to the fire.

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

Can I ask you to explain further the concept of sui generis? You said it's to be defined. Does that mean we need more court decisions?

[Timothy McCabe]

What sui generis means is “unique”. So what the court is saying is when we look at these rights—these aboriginal rights, treaty rights—don't have in mind common law, or civil law property rights, or contract rights, or torts, or anything we've known before. This is a new ball game. We've discovered these new rights, and it's up to our generation and beyond to define what they are. I think that's the importance of this idea of sui generis. That's why the court goes out of its way to call them sui generis rights, because it becomes a kind of tool that it can use to shape it.

A moment ago you asked about human rights, having to do with matrimonial property. Could that be part of aboriginal rights? Well, the court has equipped itself to answer those kinds of questions by explaining to us that these are sui generis rights and we're going to be developing that.

[The Chair, Conservative, Bruce Stanton]

We'll leave it at that.

Thank you, Ms. Crowder.

We'll now go to Mr. Rickford for seven minutes. Go ahead, Mr. Rickford.

[Greg Rickford, Conservative, Kenora, ON]

Thank you, Mr. Chair.

Thank you, Mr. McCabe, for coming here today.

I've had a chance to go through your book and these briefing notes, and it poses certain challenges for me as a lawyer who has worked to some extent on a variety of issues.

I might comment that the cases you cite in your briefing note, and indeed a number of others, actually are quite rich in terms of what they're practically dealing with, whether it's traditional practices and the use of resources on land and/or in water versus a rightfully growing concern we have about the need to include first nations communities in major economic development in regions or around a resource. Indeed, it's particularly relevant that a person of your stature and authority, if you will, on the judicial piece to this whole discussion could benefit.

So I'm going to try to go down the economic road consistent with some of the things that our study is looking at, but it is building a little on Ms. Crowder's important question at the end with respect to economic developments. Because the fact of the matter is that we can't always wait for the Supreme Court of Canada for these decisions.

I'm not going to talk so much about aboriginal rights on a right-to-right basis. Again, I want to focus on the economic development. I may ask you to do some practical translations of some of the great legal work that you've done in these areas.

Historically we've looked at fiduciary relationships and obligations. Of course, the Royal Commission on Aboriginal Peoples recognized that there was a balancing of rights going on here. Wewaykum, which you quote on page 3 of your brief in a slightly different context from what I'm raising here, identified that the crown is no ordinary fiduciary. Depending on the context, they have to regard the interests of several different parties. Importantly, I think, they're not restricted to section 35 rights.

That's important, because what I want to ask you is a very open question. We have land claim agreements settled. Some are in the process of being ratified. They deal with a number of issues, which include, inter alia, issues around MRP, matrimonial rights property, resource utilization, and participation in the economic benefits it has.

To that extent—let's try to flip this over—what are the challenges for the court in view of some of the emerging regulatory frameworks and some of the land claim settlements that have occurred? Some are in the process of occurring that many first nations are quite excited about getting done because they have become an integral part of an economic strategy in a particular region, or perhaps nationally.

[Timothy McCabe]

I should probably get out more, because I'm not sure about the specific proposals and documents you're talking about.

Clearly the concept of the honour of the crown and this duty of consultation and accommodation opens up a rich avenue for aboriginal peoples when there is a proposal to develop land in the vicinity, the traditional lands of aboriginal peoples. One of the side effects, one of the indirect effects, is that governments are going to produce policies.... I noticed there was a discussion about policy at the last meeting of the committee. But governments are going to produce policies, they're going to change their ways, they're going to change practices, and also non-aboriginal proponents of developments, really, throughout Canada. It's going to be part of the way of doing business.

One of the things that's going to have to be taken into account, and is being taken into account now, I think, by any proponent who knows what they're doing, is the interest of the aboriginal peoples and dealing with the aboriginal peoples, which often means partnership with the aboriginal peoples. That's part of the furniture now. It just will be, inevitably, for the foreseeable future and probably for the rest of our history.

[Greg Rickford, Conservative, Kenora, ON]

My concern is that in our attempts at reconciliation—and you lay that out quite nicely in your brief—there's a real challenge for any party not to stifle, if you will, real progress.

We've talked about the issue of the Supreme Court of Canada being a particularly effective way to look at how certain cases in the lower courts have evolved to deal with rights. We also recognized, in fairness to a comprehensive discussion, this idea of pocket veto and foot-dragging. Although having been in the practical dimensions of some major agreements with respect to first nations and things like forestry resources, which also raises the important issue of the two crowns, in a sense—the constitutional jurisdictions of the province over certain resources and the federal government, which keep lawyers in business for a very long time--and this concern about not wanting to create a new class of lawyers to differentiate these subsets of rights.... My concern is that it's important that the justificatory framework that you describe here, starting from Sparrow, and in the other—

[The Chair, Conservative, Bruce Stanton]

You're just about out of time.