PROPOSAL FOR AN

ABORIGINAL TREATY IMPLEMENTATION ACT

 

SUBMISSION

TO THE

SENATE STANDING COMMITTEE ON ABORIGINAL PEOPLES

March 1st, 1999

 

DISCUSSION PAPER ONLY

CREE-NASKAPI COMMISSION

 

Richard Saunders, Chairman

Robert Kanatewat, Commissioner

Philip Awashish, Commissioner

 

CREE-NASKAPI COMMISSION, 222 QUEEN STREET, SUITE 305... OTTAWA, ON K1P 5V9

Tel: (613) 234 4288 Fax: (613) 234-8102 Toll-free: 1 888-236-6603

CONTENTS

PREFACE:

I Background

II A Court of Aboriginal and Treaty Rights

III Possible Amendments to the Federal Court Act

IV An Aboriginal Treaty Implementation Act

V An Aboriginal Treaty Implementation Secretariat

VI Possible Implementation Legislation

VII A Proposed Process for Change

ENDNOTES

APPENDICES

 

A Letter from Senator Charlie Watt OQ to Richard Saunders

B Excerpt from Transcripts of Commissioners' Testimony to the Senate Standing Committee on Aboriginal Peoples

C Excerpt from the 1998 Report of the Cree-Naskapi Commission

 

BIBLIOGRAPHY


PREFACE

The Cree-Naskapi (of Quebec) Act came into force in 1984. For virtually all purposes it replaced the Indian Act insofar as the Cree and Naskapi of Northern Quebec are concerned. The legislation was agreed to by the federal government as part of its commitments under the terms of the James Bay and Northern Quebec Agreement (Section 9) and the Northeastern Quebec Agreement (Section 7). It provides for Cree and Naskapi self-government, the land regime and certain individual and collective rights.

The Act also created the Cree-Naskapi Commission consisting of three members recommended by the Cree Regional Authority and the Naskapi Band and appointed by order-in-council. That Commission has as one of its responsibilities the duty to prepare a biennial report on the implementation of the Act. This report is submitted to the Minister of Indian Affairs who then has ten days in which to table it in the House of Commons and the Senate.

In the 1998 Report of the Cree-Naskapi Commission, the Commissioners, in addition to their recommendations relating solely to Cree and Naskapi issues, made a number of recommendations which, if acted upon, would also have implications for Aboriginal peoples in all parts of Canada. At this time, the Senate Standing Committee on Aboriginal Peoples has asked for detailed proposals on those recommendations. This discussion paper has been prepared in response to that request.

The proposals outlined in this discussion paper do not require constitutional amendment. They are within the existing legislative authority of the Parliament of Canada.


I BACKGROUND

Arguably the most difficult and persistent problem in the relationship between Aboriginal peoples and the Government of Canada has centered on disputes over the implementation of treaties.*

The nature of the problem as well as specific examples of it have been discussed in detail in many reports, articles and books.1 The purpose of this discussion paper is neither to rehash the disputes nor to assign responsibility for them, but rather to outline the current context of the issue and to offer some suggestions for positive change.

These suggestions are based largely upon Chapter 2 of the 1998 Report of the Cree-Naskapi Commission2 and are in response to the invitation of the Honourable Charlie Watt OQ, Chairman of the Senate Standing Committee on Aboriginal Peoples.3 They also address what has been a priority concern of First Nations leadership nationally for a number of years.

Briefly stated these suggestions include:

  • A separate and independent Aboriginal Treaty Implementation Secretariat,

  • An Aboriginal Treaty Implementation Act

  • A temporary superior court of national jurisdiction to deal with Aboriginal and Treaty rights matters.

What follows is the reasoning behind these suggestions. It is not intended to supplant the judgement or initiative of others with the mandate to advocate ideas of this sort, rather it is intended to stimulate discussion and action on ways to ensure that Aboriginal treaties and land claims agreements are fully and properly implemented.

* The term "treaty" is used throughout this discussion paper in conformity with Section 35 (3) of the Constitution Act 1982, as including land claims agreements.

II A Court of Aboriginal and Treaty Rights

While the Royal Proclamation of 17634 and other legal instruments lay the foundation for any comprehensive understanding of the treaties, the Constitution Act, 1867-1982 will be the starting point for the purposes of this discussion. In particular, Section 35 of the 1982 amendments deals directly with the status of treaties. The Section reads as follows:

35. (1)The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act,"Aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.

(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.5

Since these sections of the Constitution were adopted in 1982, there has been only a very short time for the courts, particularly the Supreme Court of Canada, to develop case law to serve as a guide for the implementation of the treaties. It may be another ten to twenty years before there exists a body of precedents comprehensive enough to enable the lower courts, government agencies and others to implement the provisions of the treaties with a degree of consistency that, however desirable, is almost entirely lacking to-day.

It is for this reason that the Cree-Naskapi Commission in its 1998 Report recommended:

6. A superior court of national jurisdiction should be created to handle cases involving treaty and Aboriginal rights. This court would have jurisdiction in those areas as well as in court cases arising under the Cree-Naskapi (of Quebec) Act, the Indian Act, the Sechelt Indian Self-Government Act and similar pieces of legislation. In addition, it could be given appellate jurisdiction in cases coming from future First Nations courts. Appeals from such a court of Aboriginal and treaty rights would be heard by the Federal Court of Appeal and then the Supreme Court of Canada.

The justices of such a court would be nominated by First Nations and appointed by the Governor-in-Council, and the court could be administered as a division of the Federal Court of Canada. After a ten year period, the continued need for such a court could be reassessed.6

Parliament has the authority to create a court of this sort under the terms of Section 101 of the Constitution Act, 1867.7 Since it is reasonable to suppose that after ten or perhaps twenty years there would have been established a comprehensive body of precedents which could be applied by the regular court system, it seems appropriate to have the court discontinued unless with the consent of Aboriginal peoples it were to be extended for a further limited period by a joint resolution of the House of Commons and the Senate.

III Possible Amendments to the Federal Court Act

While detailed amendments to the Federal Court Act would need to be worked out in the course of consultation with the Aboriginal community some of the key areas for decision would include; the appointment of justices, the jurisdiction of the court and provisions for winding it down. The following are offered as points for discussion as possible contents of future amendments to the Federal Court Act.

  1. There shall be a division of the Federal Court of Canada to be known as the Aboriginal and Treaty Rights Division.

  2. The Aboriginal and Treaty Rights Division shall consist of five Justices appointed by the Governor-in-Council on the recommendation of national organizations representing the majorities of the Indian, Inuit and Metis peoples of Canada.

  3. Justices shall in all other respects be considered as Justices of the Trial Division.

  4. The Aboriginal and Treaty Rights Division shall have exclusive original jurisdiction:

    1. where it is alleged that an aboriginal right or aboriginal treaty right of an Aboriginal person or of an Aboriginal community has been denied or,

    2. where it is alleged that the government of Canada, or an agent thereof, has failed to carry out its fiduciary duties in relation to an Aboriginal person or community, or

    3. where it is alleged that an Aboriginal party has failed to comply with a treaty provision, or

    4. where an action is brought forward under the Indian Act, the Cree-Naskapi (of Quebec) Act, the Sechelt Indian Self-Government Act, etc., or

    5. to hear and determine references from the Canadian Aboriginal Treaty Implementation Board.

  5. In all other respects the Aboriginal and Treaty Rights Division shall be governed by the provisions of the Federal Court Act which govern the trial division of the Federal Court.

  6. On the tenth anniversary of the coming into force of this part, and with the consent of the Aboriginal peoples, the House of Commons and the Senate shall determine by joint resolution whether to extend the provisions of this part for a further period not to exceed ten years.

  7. Should the joint resolution contemplated in Section 6 be passed, the existence of the Division shall be continued for the number of years specified. Otherwise the Division shall cease to exist on the twelfth anniversary of the coming into force of this part.

  8. Upon the termination of the Division matters referred to in Section 4 shall be within the jurisdiction of the Trial Division.

IV An Aboriginal Treaty Implementation Act

While much remains to be done in the area of evolving aboriginal treaty law, some of the principal questions have already been answered in recent Supreme court judgements. Unfortunately some of the principles established in specific cases are not yet widely enough known to forestall disputes in analogous situations. A good deal of time, money and goodwill are expended in contention over matters in which the guiding principles have already been decided. It was for this reason that the Cree-Naskapi Commission in its 1998 Report recommended:

5. A treaty implementation Act should be developed, incorporating much of the new law relating to Aboriginal and treaty rights as well as fiduciary law into a single statute that would serve as an authoritative guide for government officials carrying out their responsibilities under the various agreements and treaties. This new legislation, or piece of companion legislation, a treaty implementation (financial arrangements) Act for example, should clearly stipulate how the financial aspects of agreements and treaties are to be handled.8

Such legislation could consolidate the substance of a variety of relevant and useful Supreme Court decisions. Two examples are the definition of the term "treaty", and the rules of interpretation which the Supreme Court has developed. In SIOUI the Supreme Court of Canada said:

"... the word "treaty" is not a term of art, it merely identifies agreements in which the "word of the whiteman" is given and by which the latter made certain of the Indians' cooperation."9

***

"...it must be remembered that a treaty is a solemn agreement between the Crown and the Indians, an agreement the nature of which is sacred."10

Later in BADGER the Court examined the definition further saying:

"Treaties are analogous to contracts, albeit of a very solemn and special, public nature. They create enforceable obligations based on the mutual consent of the parties."11

If one considers these and other findings of the Court together with the statement in Section 35 (3) of the Constitution Act, 1982, that "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired."12 , it becomes clear that the proposed Act could include a reasonably clear and useful definition of what constitutes a "treaty".

A second example of Supreme Court findings which ought to be part of any treaty implementation legislation is the set of principles of interpretation which have been outlined at least from Nowegijick to Badger. In Nowegijick v. The Queen, Justice Dickson wrote:

"It seems to me, however, that treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indian."13

More than a decade later, by the time of Badger v. The Queen the Court had developed a more complete set of rules of interpretation. In Badger the Court said:

"At the outset, it may be helpful to once again set out some of the applicable principles of interpretation. First, it must be remembered that a treaty represents an exchange of solemn promises between the Crown and the various Indian nations. It is an agreement whose nature is sacred. Second, the honour of the Crown is always at stake in its dealings with Indian people. Interpretations of treaties and statutory provisions must be approached in a manner which maintains the integrity of the Crown. It is always assumed that the Crown intends to fulfill its promises. No appearance of "sharp dealing" will be sanctioned. Third, any ambiguities or doubtful expressions in the wording of the treaty or document must be resolved in favour of the Indians. A corollary to this principle is that any limitations which restrict the rights of Indians under treaties must be narrowly construed. Fourth, the onus of proving that a treaty or aboriginal right has been extinguished lies upon the Crown.14

* * *

'Treaties and statutes relating to Indians shall be liberally construed and any uncertainties, ambiguities or doubtful expressions should be resolved in favour of the Indians. In addition, when considering a treaty, a court must take into account the context in which the treaties were negotiated, concluded and committed to writing. The treaties as written documents, recorded an agreement that had already been reached orally and they did not always record the full extent of the oral agreement."15

The definition of "treaty" and the development of rules of interpretation are two examples of the process in which the Supreme Court of Canada has begun to provide detailed aboriginal and treaty rights law arising out of Section 35 and other sources. Additional examples include the nature of the fiduciary role of the federal government in relation to aboriginal peoples,16 the status of oral evidence in understanding the content of treaties,17 the status of oral promises,18 the burden of proof of extinguishment,19 and many related rules and guidelines.

It is unrealistic to expect every official responsible for each aspect of implementation of every provision of every treaty or agreement, to find, understand and apply every relevant precedent to each individual issue at hand. Virtually all of the Court's rulings in the area have been relatively recent. The whole subject of aboriginal law is only beginning to be taught in undergraduate programs and law schools and is not yet widely enough known to be accepted as common knowledge.

In order to ensure that fairness and consistency prevail in the implementation of treaties and agreements a single piece of legislation consolidating current aboriginal treaty law is needed. It would become the sort of "bible" for administrators that the Financial Administration Act is for financial managers throughout the government. As this area of law continues to evolve, scheduled revisions of the Act could be carried out after ten and twenty years. By that time most of the vagaries as well as the majority of the thorniest problems will have been resolved.

V AN ABORIGINAL TREATY IMPLEMENTATION SECRETARIAT

The principal purpose of government in a democracy is to "govern". This mostly involves making choices from among competing policy alternatives, establishing priorities for expenditure etc. In short, it means making choices. For the most part this means exercising political judgement. In certain public functions however political decision making is inappropriate and has been replaced by other processes. A major example is the court system which makes decisions on a wide array of issues on the basis of law rather than political judgement. Many other boards, commissions and tribunals resolve issues independently of the day-to-day policies and politics of the government in office. Some functions are directly accountable to Parliament or to a provincial legislature e.g. the Auditor General, provincial Ombudsmen etc. The concept that, in certain matters, the Crown is bound to honour its commitments is a concept which is applicable to the implementation of treaties.

The lack of, and need for effective structures and processes to implement treaties and agreements has been noted repeatedly by independent observers. Most recently the Auditor General noted in September 1998. "Among other things, successful implementation of settlements is critical to achieving the intent of these treaties .... We found deficiencies in implementation, including inadequate or non existent implementation plans and the need to improve monitoring, reporting and evaluating.

The Constitution says that treaty rights are recognized and affirmed. The Supreme Court says that treaties create enforceable obligations. Clearly implementation of those treaties is one area of public activity that needs to be administered independently, objectively and according to the law.

For these reasons the 1998 Report of the Cree-Naskapi Commission made the following recommendation:

4. A treaty implementation secretariat totally independent from the Department of Indian Affairs and Northern Development should be created to manage the fulfillment of the Government's obligations under treaties and agreements.21

Such an agency should be directed by a small, say seven member, board appointed on the recommendation of aboriginal organizations by order-in-council for a four year term.

The agency would be created by the proposed Aboriginal Treaty Implementation Act and would be responsible for the implementation of aboriginal treaties according to the terms of the Act itself, the provisions of the treaties and other relevant legislation and court decisions.

Person years and operating funds for this agency should be taken from the existing resources of the Department of Indian Affairs and Northern Development.

VI Possible Provisions of Implementation Legislation

The actual details of an Aboriginal Treaty Implementation Act will need to be determined by the Aboriginal leadership through their own consensus-building processes, and in negotiations with the Government of Canada. The key areas for decision however will almost certainly include; the process of appointment of a board, the powers and duties of the secretariat, the identification of resources for fulfillment of treaty obligations and the reporting arrangements. Some points for discussion on the issues which might be included in any future legislation include the following:

  1. There is hereby established an agency to be known as the Canadian Aboriginal Treaty Implementation Secretariat.

  2. The Canadian Aboriginal Treaty Implementation Secretariat shall be under the direction of the Canadian Aboriginal Treaty Implementation Board. The Board shall be composed of seven members who shall be appointed by the Governor-in-Council as follows:

    1. two shall be nominated by the organization representing the First Nations of Canada or a majority of them;

    2. two shall be nominated by the organization representing the Metis people of Canada;

    3. two shall be nominated by the organization representing the Inuit people of Canada;

    4. one shall be nominated by the Government of Canada.

  3. The members of the Canadian Aboriginal Treaty Implementation Board shall be appointed for a term of four years and shall be eligible for reappointment for one additional term only. Members whose term has expired shall continue in office until their successors have been appointed. In the case of the first members of the Board, four shall be appointed for a term of two years and three shall be appointed for a term of four years.

  4. The members of the Board may resign their office by submitting a written statement to that effect to the Clerk of the Privy Council.

  5. A Board member may be removed for cause by the Governor-in-Council.

  6. The Board shall select a Chairman from among its own members for a term of two years.

  7. A quorum of the Board shall be five members.

  8. Decisions of the Board shall be by a majority of the members present.

  1. The Board may make rules for the exercise of its powers and for the conduct of its members.

  2. The Board may delegate to one or more of its members any if its powers except those in Section 9 and in Section 19.

  3. The Board may employ such officers and employees as it may deem necessary.

  4. The Board shall be responsible preparing its own budget and for submitting that budget directly to Treasury Board for approval. The amount approved shall be added to the main estimates of the Department of Indian Affairs and Northern Development.

  5. All Board members, officers and employees of the Canadian Aboriginal Treaty Implementation Board shall be considered employees of the Government of Canada for the purposes of the Public Service Superannuation Act, but not for other purposes.

  6. The powers and duties of the Canadian Aboriginal Treaty Implementation Board shall include the following:

    1. ensuring that the terms and provisions of all treaties (including land claims agreements) between the Crown in right of Canada and the Aboriginal peoples of Canada are fulfilled in letter and in spirit by the various departments and agencies of the Government of Canada,

    2. determining both in general and in detail how a particular term or provision shall be fulfilled, and issuing directives to departments and agencies of the Government of Canada to achieve fulfillment.

    3. when in the judgement of the Board, a treaty provision is unclear, the Board shall refer the matter to the Court of Aboriginal and Treaty Rights for a judgement.

  7. In exercising its powers and duties under Section 14 (a) and (b) the Board shall be bound by the rules of law and equity existing at the time as well as by the provisions of the treaty in question.

  8. In making determinations under Section 14 (a) and (b) the Board shall consider the views and arguments of the aboriginal group(s) concerned, the government of Canada and such other persons as may have a direct interest in the matter at issue.

  9. Whenever, in the opinion of the Board, it appears necessary in order to ensure fairness in the exercise of its powers and duties under Section 14, the Board may constitute itself or any three members as a commission of inquiry to determine the relevant facts. Members acting as a commission of inquiry shall have all of the powers of an inquiry under the Public Inquires Act.

  10. In making determinations under Section 14 (a) and (b) the Board may, with the consent of the parties to the treaty in question, consider alterative compensation modes which could include but are not limited to:

    1. transfer payments to aboriginal governments

    2. special program services

    3. resource revenue sharing

    4. first rights of refusal

    5. special harvesting rights

    6. land including "reserve status" or its equivalent and any other form of landholding or estates in land

    7. incorporal rights

    8. intellectual property rights

    9. preferential hiring, contracting, supplying, etc..

    10. special import/export licences

    11. Preferential tourism-related licencing

    12. rights to provide tax benefits to third parties on Aboriginal lands

    13. traditional commercial practices

    14. Aboriginal licencing of certain rights to third parties for periods of five years or less.

    15. full or partial recission of certain Aboriginal obligations e.g., extinguishment/surrender provisions

    16. special rights on surrendered lands

    17. other

  11. The Board shall submit a report on its activities to the Clerk of the House of Commons and the Clerk of the Senate within the first ten days of each session immediately following the anniversary of the coming into force of this Act. This report shall be tabled in each House forthwith. This report shall also be submitted to each of the national Aboriginal organizations.

  12. Every Report submitted under Section 19 shall include a review of the activities of the Board as well as complete financial statements.

VII A PROPOSED PROCESS FOR CHANGE

The proposals for change outlined above are substantial. They involve the interests of Aboriginal Canadians in every part of Canada. They call for significant alterations in the way that the federal government operates. They would have at least a small impact on the legal system. Finally they would alter fundamentally the climate of aboriginal/government relations in the area of treaty implementation.

Parliament would not and should not make such serious changes without the broadest level of input and approval from the Aboriginal peoples of Canada. It is probably unrealistic to expect that 100% agreement could be reached on each item in any future legislation, but a broad measure of consensus is imperative. Many initiatives have failed in the past because their origins did not lie in the aboriginal community or because meaningful consent was never given by that community.

It is suggested therefore that the Senate Committee review this proposal through its existing consultative process with aboriginal peoples supplemented by wider consultations as determined by the Aboriginal leadership. Finally it is hoped that any lack of immediate consensus will not be taken to mean that more years should be allowed to go by before strong measures are taken to provide for the full and proper implementation of Aboriginal treaties and agreements.


APPENDIX "A"

 

(Letter from Senator Charlie Watt OQ)

 


APPENDIX "C"

 

(Excerpt from the 1998 Report of the Cree-Naskapi Commission)

 


CHAPTER 2

Status of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement

During the 1998 Special Implementation Hearings, the concern most frequently raised was the failure of the federal and Quebec governments to honour their obligations under the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement. This situation has existed since our first hearings, held in 1986. At that time, the Commission stated:

"In the course of Canadian history, a notion persists that governments make promises to induce natives to surrender their lands and other rights and then routinely break these promises, frequently hiding behind legal technicalities. Regrettably, the evidence supporting this notion is extensive".2

Today, while this observation is still true, there may be some cause for optimism. The Honourable Jane Stewart, the new Minister of Indian Affairs and Northern Development, has taken some steps towards improving relations between First Nations and the Government of Canada. The recent "Statement of Reconciliation", issued by the government is evidence of its intention to acknowledge some of the mistakes of the past and to move towards improved relations. The Statement includes two sections that the Commission regards as reason for cautious optimism. The first one reads as follows:

"Sadly, our history with respect to the treatment of Aboriginal people is not something in which we can take pride".3

This statement does not deal with the historical and current problem of broken treaties, but it does acknowledge a general problem and is a definite step towards reconciliation. The other section deals with the process:

"Reconciliation is an ongoing process. In renewing our partnership, we must ensure that the mistakes which marked our past relationship are not repeated".4

This statement reflects good intentions. If it is applied consistently and continually throughout the government, the results will be positive. If not, skepticism will deepen into cynicism, crisis will follow crisis in sure succession until some future government finally acts upon those intentions.

With respect to the current concerns about governments' failure to honour their obligations under the Agreements, it is important to fully understand the nature of the problem. After that, workable solutions can be considered. The problem is complex. The Commission believes, however, that it results from the fact that several of the basic concepts of governing processes and structures, while generally useful, are totally inappropriate, and indeed counter-productive, when dealing with treaties and agreements. For purposes of this discussion the Commission shall identify the conceptual issues as the "public mandate issue", the "collective awareness issue", the "corporate memory issue", and the "ministerial impotence issue". Taken together, these issues account for much of governments' history of broken treaties.

THE PUBLIC MANDATE ISSUE

In a democratic society such as Canada, the vast majority of public issues should be defined and resolved through the political process. A few are, and should be, defined and resolved by law. The protection of minority rights in the Constitution is an example of this, applied in a societal context. The idea that governments are in general obligated to honour contracts in much the same way anyone else does is an example applied in a narrower context. In both cases, the rights and duties involved are defined, not through political processes, but by the parties concerned and, failing that, by the courts.

The Aboriginal and treaty rights of Aboriginal people are enshrined in the Constitution Act, 1982. Section 35 of the Act constitutionalizes treaty rights, including land claim settlements. This is an example similar to the protection of minority rights in the Charter sections of the Constitution. The parties themselves (government and Aboriginal peoples) work out agreements, or treaties. When necessary, the courts interpret and apply those agreements. This would be quite workable were it not for what the Commission has termed the "public mandate issue".

If one considers for a moment the feelings of a newly elected prime minister and a newly sworn-in Cabinet, the situation becomes clear. In such circumstances, most of us would feel that as democratically elected leaders we had a mandate to govern, make choices and set priorities. This mandate would encompass most of the state's activities. There would be partisan political opposition to some decisions, interest groups would object to certain priorities, and so on. The remedy in every case would be political action. They could lobby, write letters, submit petitions, hold demonstrations or vote for someone else. We would see that it was legitimate to decide, for example, to cut health care funding to the provinces, adjust Canada Pension Plan premiums or reduce the size of the public service. Various interests could campaign against these initiatives; however, making the decisions and objecting to them would both be seen as legitimate and essentially political processes.

The Canadian government undoubtedly sees itself as exercising its powers legitimately in making such decisions about rates of taxation, spending on social services, defence policy, transfer payments, Indians Affairs policy, etc. Indian Affairs officials carry this to the next logical step and see the implementation of treaty provisions as an aspect of Indian Affairs policy. As a policy, it can, of course, vary according to budgetary and other considerations. So the act of implementing treaty provisions is seen as essentially similar to other policy-making, priority-setting and program-management functions of government.

First Nations generally consider the implementation of treaty provisions as an obligation, rather than a policy option. They generally consider treaties sacred. When treaty provisions are fulfilled only partially or not at all, First Nations regard this as dishonourable in the extreme. Arguments that First Nations ought to negotiate about implementation are seen as deceitful and redundant, after all, the Agreement has already been concluded and the obligations have already been undertaken.

Is there any objective truth in these differing perceptions? We say that there is and that it has already been discerned. We believe that the closest we have come to objective truth can be found in the decisions rendered by the Supreme Court of Canada since 1982, when treaty and Aboriginal rights were "recognized and affirmed" in the Constitution.

In 1996, in the Badger case, the Supreme Court stated in the clearest language:

"Treaties are analogous to contracts, albeit of a very solemn and special, public nature. They create enforceable obligations based on the mutual consent of the parties".5

The Court did not say that treaties create "policy options"; it said that they create "enforceable obligations".

Some will be quick to argue that treaties are ambiguous and open to interpretation. Here again, the Supreme Court has provided useful (and authoritative) direction. In the Badger case the Court stated:

"At the onset, it may be helpful to once again set out some of the applicable principles of interpretation. First, it must be remembered that a treaty represents an exchange of solemn promises between the Crown and the various Indian nations. It is an agreement whose nature is sacred. Second, the honor of the Crown is always at stake in its dealing with Indian people. Interpretations of treaties and statutory provisions which have an impact upon treaty or aboriginal rights must be approached in a manner which maintains the integrity of the Crown. It is always assumed that the Crown intends to fulfil its promises. No appearance of "sharp dealing" will be sanctioned. Third, any ambiguities or doubtful expressions in the wording of the treaty or document must be resolved in favor of the Indians. A corollary to this principle is that any limitations which restrict the rights of Indians under treaties must be narrowly construed. Fourth, the onus of proving that a treaty or aboriginal right has been extinguished lies upon the Crown. There must be "strict proof of the fact of extinguishment" and evidence of a clear and plain intention on the part of the government to extinguish treaty rights".6

This clearly states that any ambiguity "must be resolved in favor of the Indians". The other rules of interpretation provide ways to understand and apply the treaties.

When one finally understands that treaty obligations are enforceable, and when the labyrinth of supposed difficulties of interpretation is eliminated, there always remains the obstacle of "there is no money". Again, this is a matter of seeing an "enforceable obligation " as a "policy option" or an "expenditure choice". It is not. The more persistent advocates of treaty-obligation avoidance will explain that the Minister cannot spend what "Cabinet" or the "Minister of Finance" or "Treasury Board" has not approved. This reasoning is inherently flawed because treaty obligations are not obligations of the Minister. They are existing obligations of Canada. They are existing obligations of the Cabinet. They are existing obligations of Treasury Board. The proper fulfillment of those existing obligations is a fiduciary duty of the government, that is, of Cabinet. Once again, the courts have provided useful (and authoritative) direction. In the Kruger case, Mr. Justice Heald of the Federal Court of Canada (Appeals Division) wrote:

"The Governor in Council is not able to default its fiduciary relationship to Indians on the basis of other priorities and considerations".7

Other priorities are not excuses for default. The problem is that governments have consistently failed to understand that treaty obligations are enforceable, that there are rules for interpreting them and that they cannot be juggled with competing "policy" options.

It is a mistake to include the treaty implementation process in the regular "policy option" and "program management" structure of the public service. The management of an "enforceable obligation" implementation process is entirely different from the management of discretionary programs. Using a choice-making structure to manage the observance of lawful obligations has been dysfunctional.

Some will argue, no doubt, that there is really no evidence of government considering treaty provisions to be mere "policy options" that may be changed at will or simply ignored. Unfortunately, there are numerous examples of both in the older numbered treaties, and in the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement.

Treaty 6 is an example of the problem as it affects the older treaties. This treaty, signed in 1876, included the well-known "medicine chest clause". As early as 1935, long before the entrenchment of treaty rights in the Constitution, and long before liberal rules of interpretation were developed, the Exchequer Court of Canada (roughly equivalent of the Federal Court of Canada) had decided in the Dreaver case that the medicine chest included "all medicines, drugs or medical supplies . . . free of charge". In spite of this, Health Canada stated, as recently as 1990, that "no . . . treaties confer on Indians the right to free health care . . ."

The government practice of signing treaties and then refusing to honour them is not confined to the older treaties signed in the nineteenth century and earlier. It also applies to the modern land claim Agreements, as well as to other Agreements signed by the Cree and Naskapi of Northern Quebec.

In the case of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement, as well as various sub-agreements made pursuant to them, there are literally scores of specific federal and provincial obligations that are yet to be implemented. The dispute over the "Statement of Understanding", discussed in detail in our 1986 report is an excellent example.

THE COLLECTIVE AWARENESS ISSUE

Governments are large and complex organizations that deal with a vast number of disparate issues. The departments and agencies are seldom aware of all the relevant activities the others are engaged in. Even the central agencies seem to lack a general awareness of overall issues, other than some specific common elements (mainly financial controls, personnel policy, etc.). As for the implications of this problem with respect to the Agreements, we have observed that senior officials responsible for administering the implementation of those Agreements are unaware of recent decisions of the Supreme Court of Canada concerning the nature of treaties, how they are to be interpreted, etc. It is clear that the perspective of the bureaucracy is limited to its own views on very specific issues. There is an almost total lack of any consideration of other perspectives. Many of the cases involving Aboriginal and treaty rights that both levels of government have lost could have been avoided if senior officials had been aware of (and had chosen to follow) modern legal precedents. The saving of tax dollars, not to mention the good will of Aboriginal people, would have been substantial. Rather than simply acting as counsel to the government in an adversarial role, the Department of Justice should arrange to provide workshops for senior officials to keep them up to date on the evolving law of Aboriginal and treaty rights legislation, as well as on the government's obligations as a fiduciary.

THE CORPORATE MEMORY ISSUE

In both the federal and provincial governments, there is a high rate of turnover in ministerial, senior management, policy and program positions. All too frequently, successive officials are simply unaware of decisions, including those that create enforceable obligations. Occasionally, specific commitments are even repudiated. Most of the problem can be traced to the fact that senior officials are too often seen as interchangeable "generic" managers by the public service. Process skills are considered essential, while substantive knowledge is regarded as unimportant.

The Commissioners recommend that individuals from the levels of director to deputy minister be appointed only from among those who have demonstrable, substantive knowledge of the issues they will be responsible for managing. In exceptional circumstances, some appointees could be required to successfully complete specific substantive training within their first six months in office.

THE MINISTERIAL IMPOTENCE ISSUE

There is a widespread view that, with rare exceptions, ministers make decisions, or appear to make decisions, that the bureaucracy implements only partially or not at all. In some cases, the bureaucracy simply waits for the minister to be replaced. The succeeding minister frequently is unaware of the decision, or is not willing to honour it.

The significance of this is that, unless senior officials agree with a minister's decision, the chances of that decision being implemented are substantially reduced. The credibility of ministerial undertakings when dealing with First Nations is minimal. Examples of this abound in relations between various ministers and the Cree and Naskapi since the signing of the Agreements.

WHAT ARE THE ALTERNATIVES?

Three steps need to be taken to restore functionality and good will to the treaty implementation process. These include: an Aboriginal treaty implementation secretariat, an Act for the implementation of treaties and agreements with Aboriginal peoples, and the creation of a court of Aboriginal and treaty rights.

TREATY IMPLEMENTATION SECRETARIAT

As discussed above, the implementation of agreements and treaties involve, as the Supreme Court has stated "enforceable obligations". Departments whose role is selecting policy options, managing discretionary programs or prioritizing expenditure decisions are not suited to fulfilling legal obligations. For that reason, a treaty implementation secretariat that would be totally independent from the Department of Indian Affairs and Northern Development should be created to manage the fulfillment of the government's obligations under agreements and treaties.

TREATY IMPLEMENTATION ACT

In 1982, Canada entrenched Aboriginal and treaty rights in its Constitution. Since then, the Supreme Court has begun to define what constitutes a treaty, developed rules for interpretation of treaties, developed a sui generis definition of the fiduciary role of the Crown, and begun to flesh out the constitutional concepts of Aboriginal and treaty rights. What is needed now is clear legislation incorporating much of this new law into a single statute that would serve as an authoritative guide for government officials in carrying out their responsibilities under the various agreements and treaties.

The suggested legislation, or a piece of companion legislation, a treaty implementation (financial arrangements) Act for example, should clearly stipulate how the financial aspects of agreements and treaties are to be handled. Many agreements and treaties appear to have been negotiated without due consideration of their financial implications. This has resulted in unnecessary disputes, litigation and a lasting bad feeling. An Act governing the handling of the financial aspects of agreements and treaties would ensure proper management of the resources, minimal disputes over amounts, etc., and would force the parties into a more disciplined and open process in current and future negotiations. Even today, the handling of financial matters is the basic problem underlying almost every major dispute brought to the Commission's attention as discussed above.

COURT OF ABORIGINAL AND TREATY RIGHTS

Because Aboriginal and treaty rights are evolving, legal concepts are being developed and modified almost every day. The volume of litigation on important questions in this area has increased enormously since the 1982 constitutional amendments. This area of law will probably be active and in transition for the next ten to twenty years. After that time, hopefully, most of the major legal concepts will have been developed and most of the thorniest questions resolved. In the meantime, numerous decisions are reversed on appeal. In some cases, the views of the appeal courts are adjusted by the Supreme Court of Canada. All of this indicates that there is not yet a sufficient body of precedents that would allow the lower courts to approach the issues consistently. In addition, the delays and costs of appeals are often excessive.

For all these reasons, Parliament, acting under Section 101 of the Constitution Act, 1867, should consider creating a superior court of national jurisdiction to handle cases involving treaty and Aboriginal rights. Such a court would have original jurisdiction in these areas as well as in cases arising under the Cree-Naskapi (of Quebec) Act, the Indian Act, the Sechelt Indian Self-Government Act and similar pieces of legislation. In addition, it could be given appellate jurisdiction in cases coming from future First Nations courts. Naturally, an appeal from a court of Aboriginal and treaty rights would be heard by the Supreme Court of Canada.

The justices of such a court could be nominated by First Nations and appointed by the Governor in Council, and the court could be administered as a division of the Federal Court of Canada. After a ten-year period, the continued need for such a court could be reassessed. The body of case law developed by then might have become widely known throughout the judicial system and might be more conveniently applied in the regular courts.


ENDNOTES

  1. Cree-Naskapi Commission, 1986 Report of the Cree-Naskapi Commission, p.36.

  2. "Statement of Reconciliation", in Gathering Strength : Canada's Aboriginal Action Plan, 1998, p.4.

  3. Ibid., p.5.

  4. D.W. Elliot, Law and Aboriginal Peoples in Canada, 3rd ed (Toronto: Captus University Publications, 1997), p. 212.

  5. Badger v Queen, S.C.C., April 3,1996, para.41.

  6. Kruger v.Queen, 1985, 17 D.L.R. [4th ].

APPENDIX "B"

 

(Testimony of the Cree-Naskapi Commission Before the Senate Standing Committee on Aboriginal Peoples, Nov., 3, 1998, Excerpts)

 

 

TESTIMONY OF THE CREE-NASKAPI COMMISSION BEFORE THE SENATE STANDING COMMITTEE ON ABORIGINAL PEOPLES NOVEMBER 3rd, 1998

 

Note: What follows are excerpts from the testimony given by members of the Cree-Naskapi Commission and comments by Senators. These have been edited and arranged to highlight those parts of the discussion which focussed on the subjects dealt with in the preceding discussion paper.

We talk also about what we think are the generic or systemic problems. If we have listened to aboriginal peoples as you have, we all know that one of the principal concerns anywhere in Canada is the perception that treaties are made and then broken almost immediately. (Saunders)

* * *

If you talk to the Cree and Naskapi of northern Quebec, the central concern is that the agreements have been made and they have not been carried out in full. Certain provisions have been just plain broken. There is grave concern about this. (Saunders)

* * *

The principal issue that has come out of our consultation process and which resulted in our 1998 report is the implementation of these modern-day treaties. That is, the Northeastern Quebec Agreement, the James Bay Northern Quebec Agreement. ( Awashish)

* * *

The native parties have complained to us often that they speak to the governments about their obligations and issues are unresolved. They must often go to court. As our chairman mentioned, it is a long, difficult and expensive process. ( Awashish)

* * *

I believe that the implementation treaties must be taken out of the regular bureaucracy, out of the structure of selecting policy options, making expenditure choices and so on. That is a discretionary management model which is appropriate for most of what government does. It is why we elect governments. However, it is not appropriate for carrying out what the Supreme Court calls "Lawful obligations". We should have a body outside of the department, although certainly accountable to Parliament, which has the authority to implement the agreements, that being their only job. (Saunders)

* * *

We must deal with this problem. There must be the will to fulfill these agreements; these deals. Regardless of what you call them, a deal is a deal. As you pointed out, it is not like governing where decisions are made based on opinions. These decisions have to be based on the agreement that was signed. (Senator St. Germain)

* * *

One of the options might be to have some treaty implementation legislation. This might also impose a little more discipline on government negotiators when they negotiate in the first place if they realize they must carry the thing out..... For example, far less might be demanded in terms of surrender of certain rights if they had to be paid for. You might be prepared to acknowledge more inherent power and leave it where it belongs, in the hands of the aboriginal communities, if taking it away meant you had to pay. ( Saunders)

* * *

There should be a small secretariat, taken out of the existing person years of Indian Affairs, away from the departmental structure, whose job it is, after agreements have been negotiated and treaties have been signed, to implement them. It should be completely separate from this policy making expenditure-prioritizing and decision-making body. It should be an implementing body. (Saunders)

* * *

I think we need an " Aboriginal Rights Implementation Act" that spells out the guidelines of how this secretariat would work. (Saunders)

* * *

We are suggesting that Parliament use its authority under section 101 of the Constitution to create a new court on a temporary basis, a court of national jurisdiction that would deal with the aboriginal and treaty rights issues.

We suggest putting it perhaps at the trial division of the Federal Court level. It would be close enough to the top of the pyramid and specialized enough that it can pay attention to what has gone on in the Supreme Court. It can focus its attention on these issues. Hopefully it would contain aboriginal justices, among others. It would establish clearly a body of precedents...... (Saunders)

* * *

Other senators raised the question of the legitimacy of the concept of a court. I understand why you are coming up with the proposal of a court. It is because you have no alternatives left. You see that as a way of saying that if the court makes a decision, the politicians must act. That is true.

If it is less than that, then the tribunals and fact-finding commissions and so on will not work. We have been there many times. We do not need that anymore. We need action on the aboriginal side to move those things forward. Otherwise, Canada will have a reputation that its governments, year after year, break their promises.

We need to break that cycle. As an instrument of the country, we should help as much as possible to break that cycle of broken promises. (Senator Watt)

* * *

I could be wrong but that is the kind of discussion we need to have because the present system is not working. The minister has said as much in her "Gathering Strength" document; we do not want to repeat the same old mistakes of the past. Then we must change some of the structures and processes that caused those mistakes. (Saunders)


BIBLIOGRAPHY

  1. Cumming P.A., and Mickenberg N.H., Native Rights in Canada, 2nd Ed., The Indian-Eskimo Association of Canada, 1971, Toronto.

  2. This was a ground-breaking book in its day. At the time there was very little published legal scholarship in the area of native rights. To-day constitutional change and court decisions have revolutionized the law in this area. The text however continues to serve as an essential introduction to the history of the legal status of native rights in Canada.

  3. Elliott D.W., Law and Aboriginal Peoples in Canada, 3rd Ed., Captus University Publications, 1997, North York. To-day there are a number of excellent texts on Aboriginal Law for both law students and the general reader. This is perhaps one of the most convenient and up-to-date summaries of the legal issues and court decisions surrounding Aboriginal treaty rights and related issues.

  4. Morse B. W., (Ed.), Aboriginal Peoples and the Law: Indian, Metis and Inuit Rights in Canada, Rev. 1st Ed., Carleton University Press, 1985, Ottawa. This is an excellent source and reference work on Aboriginal law issues up to the date of its publication. An updated edition is badly needed.

  5. Woodward J., Native Law, Carswell, 1990, Toronto. This is one of the standard texts and for good reason. It is especially useful in that it considers Aboriginal law in the broad context of overall Canadian law and jurisprudence.

  6. Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples, , Ottawa. This is by far the most comprehensive and up-to-date review of virtually all issues affecting Aboriginal peoples in Canada to-day. It should be required reading for politicians, Indian Affairs officials and all others who have responsibility or interest in the area. Specific parts of the Report deal with legal issues.

ENDNOTES: