PROPOSAL FOR AN
ABORIGINAL TREATY IMPLEMENTATION ACT
SENATE STANDING COMMITTEE ON ABORIGINAL PEOPLES
March 1st, 1999
DISCUSSION PAPER ONLY
Richard Saunders, Chairman
Robert Kanatewat, Commissioner
Philip Awashish, Commissioner
CREE-NASKAPI COMMISSION, 222 QUEEN STREET, SUITE 305... OTTAWA, ON K1P 5V9
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
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
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.
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:
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.
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:
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.
(Letter from Senator Charlie Watt OQ)
(Excerpt from the 1998 Report of the Cree-Naskapi Commission)
(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)