Not empty of laws: Indigenous legal orders and the Canadian state

Mary Eberts

Indigenous law is one of the three pillars of Canadian law[1] yet has no place in the Canadian constitutional order.[2] By Indigenous[3] law-making, I mean the creation and maintenance of laws, and an order of laws, by an Indigenous collectivity pursuant to power that is not delegated to it by the Canadian state, but rather is its own inherent power. Indigenous law-making predates contact and the assertion of sovereignty by Europeans.

Although Indigenous nations were never conquered,[4] they were colonized: their homeland was included in a larger state against their will.[5] The goal of the settler state was to consolidate its hold on the land by making the original inhabitants disappear, through a long and brutal attempt at assimilating them, and sometimes literally by death.[6]

Indigenous Peoples had no part in the drafting of the Constitution Act, 1867,[7] which allocated jurisdiction between Canada and the provinces[8] and gave Canada jurisdiction over “Indians and lands reserved for Indians”. There was no place in this constitution for Indigenous law-making or legal orders.

In this chapter, I examine the treatment of Indigenous law and law-making in the context of Canada’s recognition of self-government as an inherent right under section 35 of the Constitution Act, 1982? particularly the extent to which the inherent right policy permits the recuperation of Indigenous legal orders and recognition of their place within federalism. The Penner Report speculated that if the right to self-government is an “aboriginal right” under section 35 of the Constitution Act, 1982, “there could be a substantial re-ordering of powers” with Indigenous governments having “explicit legislative powers that are now unrecognized”.[9] [10]

A review of section 35 jurisprudence on self-government, and of Canada’s “self-government” policies shows that they have produced no new constitutional room for Indigenous law-making. In fact, we have seen a vigorous new round of colonization. The court refuses to acknowledge any general power of self-government protected by section 35. The state regulates, not recognizes, aspects of Indigenous law-making. The state delegates law-making authority, instead of recognizing that it already exists. The state enters into arrangements and agreements that are not recognized and protected as treaties under section 35. None of these agreements meets the strict test for extinguishing Indigenous law-making power. Any of them will make it all the more difficult for Indigenous law-making to assert a place in any renewed federalism. These initiatives tear at the fabric of Indigenous legal orders, cherry-picking certain topics for attention in the colonizer’s regime, and leaving the rest shrouded in obscurity.

The first section of the chapter sets out the subject of my inquiry, namely Indigenous legal orders, not just singular instances of Indigenous law-making. I then examine the doctrine of continuity, pursuant to which Indigenous law-making power has survived into the 21st century. I next set out the self-government policy of Canada and examples of “self-government”, which are really just exercises in delegating legislative power for administrative purposes. There follows a discussion of the interpretation of section 35 of the Constitution Act, 1982, and the compromised Indigenous jurisdiction over land under both the self-government policy and section 35 jurisprudence.

Finally, I offer suggestions for matters to address as a priority so that Indigenous law-making will be able to flourish as part of the “living tree”[11] that is the Canadian Constitution.

198 Mary Eberts Indigenous legal orders

In the Manitoba Language Reference,[12] the Supreme Court stresses that the rule of law requires “the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principles of normative order”.[13] John Borrows drives home the connection between survival of Indigenous legal orders and the maintenance of an orderly society: “Failure to recognize and affirm the positive customary laws of Aboriginal peoples, which preserve and embody the general principles of their ancient normative orders, has sustained near-anarchy and constant strife within Aboriginal communities”.[14]

Recognizing another order of law-making in Canada involves more than just accepting the results of its operation on a case-by-case basis. At a deeper level, it must involve an acceptance of the values and perspectives of that order of laws.

We are now likely to meet Indigenous law and law-making when an Indigenous person turns to a Canadian court to reconcile his or her circumstances under Indigenous law with Canadian law (as in the case of adoption or marriage), or when there is an overt conflict between the requirements of Indigenous law and the law of the modern state (as in conflicts over resource exploration and extraction). Cases involving individual circumstances rarely place in conflict the legal systems of Canada and the Indigenous nation. Clashes between Indigenous opponents of development and developers acting under authorization of provincial law are more likely to raise systemic issues.

Systemic issues in the domain of the criminal law have been resolved in favour of the primacy of Canadian law, with small embellishments at its margins which purport to be elements of Indigenous law. These go by the name of “restorative justice”, a concept that makes its appearance in the Canadian legal system only at the point where an Indigenous person has been accused, tried, and convicted under Canadian law.

Frank Iacobucci has observed that “First Nations observe the Canadian justice system as devoid of any reflection of their core principles or values, and view it as a foreign system that has been imposed upon them without their consent”.[15] Three decisions of the Supreme Court of Canada have acknowledged the systemic discrimination against Indigenous peoples in the Canadian criminal law.[16] The Supreme Court noted in Ipelee in 2012 that the over-representation of

Indigenous persons in the criminal justice system has increased since 1999, to the point where it is worse than ever.[17]

Canada has taken no steps to change the content of the criminal law in order to respond to its devastating effect on Indigenous Peoples. Canada’s policy on the inherent right of self-government specifically states that Canadian criminal law will continue to apply to Indigenous entities with self-government agreements.[18] Nor, unfortunately, have there been any marked changes in discretionary law enforcement practices pursuant to which disproportionate numbers of Indigenous persons are arrested and charged. In the case of Indigenous Peoples and the criminal law, the state is not just the “singular antagonist of the individual”, as stated in Irwin Toy,[19] but of whole peoples. This characterization fits with Canada’s historic reality, where police authorities have played a pivotal role in enforcing compulsory attendance at residential schools and many other oppressive measures.

The doctrine of continuity

Chief Justice McLachlin in Mitchell[20] states that English law accepted that Indigenous peoples possessed pre-existing laws and interests and recognized their continuance in the absence of extinguishment, by cession, conquest, or legislation.[21] Such interests and laws

were presumed to survive the assertion of sovereignty, unless (1) they were incompatible with the Crown’s assertion of sovereignty, (2) they were surrendered voluntarily via the treaty process, or (3) the government extinguished them. . . . Barring one of these exceptions, the practices, customs and traditions that defined the various aboriginal societies as distinctive cultures continued as part of the law of Canada.[22]

The intention to extinguish by legislation must be clear and plain and must meet a strict test. Regulation does not amount to extinguishment, nor does legislation that is necessarily inconsistent with the continuation of the Indigenous interests or laws. The onus of proving extinguishment is on the Crown.[23]

In her dissent in Van der Peet, Justice McLachlin quotes Justice Brennan’s observation in Mabo that “an inhabited territory which became a settled colony was no more a legal desert that it was a ‘desert uninhabited’”.[24] [25] McLachlin J. specifically agrees with this dismissal of the doctrine of terra nullius, citing the Royal Proclamation of 1763.20 The doctrine of terra nullius posited that newly encountered lands were empty of people who owned them, thereby legitimating their “settlement” by incomers. Ovide Mercredi argues that the presumption that Indigenous Peoples and Nations are “empty of laws”[26] is still in existence. This certainly accords with Canada’s policy of relying on delegation to “give” First Nations law making powers, discussed below.

After recognition: regulation by the state?

As Borrows points out, the integrity of a legal system depends on a system’s recognition, which “secures a jurisdictional space for its operation that encourages the respect of the public and facilitates access to resources”.[27] Experience with the doctrine of continuity shows that after court recognizes a product of Indigenous law-making, there is a risk that the state will move in to regulate the area, superseding the Indigenous legal order. The case of custom adoption shows both this danger and also that it can be avoided.

Recognition of custom adoption as valid under the common law came about, in part, as a way of dealing with pressure from the bureaucratic state on those who had been adopted according to custom. In Re Adoption of Katie E7-1807, Sissons J. of the Northwest Territories Territorial Court states that “there are some hundreds of adoptions in accordance with Eskimo | sic] custom going back many years in which there has been no application to the Court for an adoption order pursuant to provincial legislation”.[28] He continues:

These applications to the Court are made because the white man says there should be an adoption order, and because it is well to have something of Court record establishing the adoption and proving it for purposes of Family Allowances, School Registration, Succession, and to avoid dispute or question.[29]

Sissons J. held that custom adoption was an adoption “made according to the laws of the territories” as required by the Child Welfare Ordinance,[30] In Casimel i>. Insurance Corporation of British Columbia,[31] the BC Court of Appeal held that custom adoption is a right under section 35 of the Constitution Act, 1982.[32]

After Casimel BC and the Northwest Territories passed legislation providing for the recognition of custom adoptions.[33] In Nunavut, which inherited the NWT statute, a Law Review Commission study[34] presented substantive concerns about unregulated custom adoption[35] and the need to be responsive to changes in custom adoption brought about by changing demographics and lifestyles. The Law Review Commission observed that “there is a strong consensus that something does have to be done before custom adoption is continued in the current haphazard way”.[36] Concluding that custom adoption is “a strong and a unique characteristic of Nunavut and will continue to be for years to come”, it recommends that there be legislation which preserves the original concepts of custom adoption while recognizing the adaptation of today’s Inuit society.[37]

Regulation by those other than Indigenous law-making authorities in fact negates recognition, the whole point of which is to honour Indigenous lawmaking, not supplant it. Nunavut is itself an Indigenous government, created by the Nunavut Land Claims Agreement, Land Claims Agreement Act[38]* and Nunavut Act.[39] One might say that its involvement in reforming the law is the Indigenous law-maker changing its own law. In actuality, it is at this stage difficult to identify a particular Indigenous law-maker which originated the rules about custom adoption. The origins of these laws seem diffuse, varying from region to region, with adoption practices responding to individual and community needs.[40]

Amendment of the Quebec Civil Code has been accomplished in a way that recognizes customary adoption without regulating it in a way that negates traditional Indigenous law-making authority.[41] It was done after a thorough study of the issue by a Working Group composed of Quebec government authorities, representatives of self-governing nations, and Indigenous “civil society” organizations.[42] The Report of the Working Group aims at finding “a simple and effective solution that would create a bridge between statutory law and Aboriginal custom and expressly recognize its effects without undermining its nature, purpose, conditions or effects”,[43] specifically adopting the approach of recognition not regulation.[44] A brief to the Quebec National Assembly pointed out that since customary adoption is a matter of Aboriginal rights recognized under section 35, “customary adoption is already part of the law applicable in Quebec”.[45] This language is crucial: the brief does not say that customary adoption is part of the law o/Quebec but of the law applicable in Quebec. The brief makes absolutely clear that “custom adoption continues under the laws of First Nations”.[46]

The new provisions of the Civil Code provide for the recognition of any custom adoptions that are in harmony with the principles of the interest of the child, respect for the child’s rights, and the consent of the persons concerned. They establish a system whereby adoptions will be vetted by the authority that is competent for the Aboriginal community or nation of either the child or the adopter and a certificate issued if the adoption is consistent with the legislative criteria.

Canada’s self-government policy: delegated authority since 1982

Canada has been negotiating arrangements with Indigenous Peoples since 1973.[47] Following the Supreme Court decision in Calder,[48] the government developed the Comprehensive Land Claims Policy in 1973.[49]

In its 1982 submissions to the Penner Committee, Canada proposed The Alternative of Optional Indian Band Government Legislation, which involved passage of legislation giving Indian Bands powers to tax, pass authoritative by-laws, enter into agreements with other bands or government authorities or agencies to provide services on reserve, control reserve lands, and determine membership.[50] The legislation would vary from band to band, as no single approach was regarded as universally appropriate, and a band would have to formulate a charter describing its relations with its members and government in order to enter into Indian Band Government legislation.[51] The Penner Committee unanimously rejected this proposal because it represented a delegation of power rather than a recognition of sovereignty.[52]

The Penner Committee urged passage of a constitutional amendment to bring self-governing First Nations into the constitutional order of Canada,[53] with a legislative backup plan to accomplish as much as possible pending achievement of that amendment.[54] It recommended passage of legislation under s. 91(24) which would recognize all areas of law-making competence necessary to permit “Indian First Nations” to govern themselves and ensure that provincial laws would not apply on First Nations land except by agreement with the First Nations government. The Report says: “Self-government would mean that virtually the entire range of law-making, policy, program delivery, law enforcement and adjudication powers would be available to a First Nations government within its territory”,[55] although it also considered health, education and child welfare to be three of the most important powers. Recommendation 21 lists the law-making (governance) jurisdiction of the First Nation government as “social and cultural developments, including education and family relations, land and resource use, revenue-raising, economic and commercial development, and justice and law enforcement”.[56]

In a move it says was partly in response to the Penner Report, Canada announced the Community-Based Self-Government Policy in 19 8 5.[57] Under this policy, Canada would delegate a range of “jurisdictions” (i.e. powers to legislate) to individual First Nations on reserve. One such arrangement was reached with the Sechelt Indian Band of British Columbia; it was not included in an agreement, but there is legislation bringing it into being.[58] [59] This Act did not create a modern treaty protected under section 35 of the Constitution Act, 1982.ьч Few agreements were reached under this policy; Canada says that one of the key reasons for this was the delegated nature of law-making powers.[60]

In 1995, consistent with the recommendations of the Royal Commission on Aboriginal Peoples, Canada recognized the inherent right of self-government as an existing right within section 35 of the Constitution Act, 1982.[61] Canada stated that recognition of the inherent right is based on the view that

the Aboriginal peoples of Canada have the right to govern themselves in relation to matters that are internal to their communities, integral to their unique cultures, identities, traditions, languages and institutions, and with respect to their special relationship to their land and their resources.[62]

The intent of the inherent right policy was to set aside legal debates in favour of practical arrangements that operate within the framework of the Canadian Constitution, that is, without interfering with the existing division of powers between Canada and the provinces.[63]

The 1995 policy document states that the government views the scope of Aboriginal jurisdiction or authority as likely extending to matters that are internal to the group, integral to its distinct Aboriginal culture, and essential to its operation as a government or institution, and proposes that negotiated agreements can set out law-making authority in many areas, including governance, social and economic development, education, health, and lands.[64] The list reflects an understanding of what an Indigenous legal order would have been preoccupied with historically. This sensitivity is blunted, however, by the requirement in the inherent right policy that Indigenous laws made pursuant to a self-government agreement should harmonize with the laws of other jurisdictions. Only Indigenous laws protecting culture and language generally take priority if there is a conflict.[65]

Despite its rejection by the Penner Committee and the later rejection of the Community-Based Self-Government policy, Canada has continued to delegate power to make laws. It delegated to bands the power to make membership rules in the 1985 amendments to the Indian Act status provisions,[66] and then in 1999 it used delegated power in the area of management of reserve lands. The First Nations Land Management Act (FNLMA)[67] brings into effect the 1996 Framework Agreement on First Nations Land Management negotiated between a group of First Nations and the federal government. Subsection 20 of the FNLMA provides that the council of a First Nation has the power to enact laws respecting interests or rights, and licences, in relation to First Nation land. The development, conservation, protection, management, use and possession of First Nation land, and any matter arising out of or ancillary to the exercise of that power and subsection 2(1) defines such a law as “First Nation law”. The FNLMA also specifically grants a First Nation power to manage First Nation land and the legal capacity necessary to exercise its powers and perform its duties and functions.[68]

Defining “First Nation laws” as laws made pursuant to legislative power delegated by Canada is also found in the Family Homes on Reserves and Matrimonial Interests or Rights Act,[69] passed because the Supreme Court of Canada held that provincial matrimonial property law is inapplicable to reserve lands.[70] Section 7(1) of the Act provides that

A First Nation has the power to enact First Nation laws . . . respecting the use, occupation and possession of family homes on its reserves and the division of the value of any interests or rights held by spouses or common-law partners in or to structures and lands on its reserves.[71]

In December 2018, Canada began co-developing legislation with the three national Indigenous groups to deal with family and child welfare issues.[72] [73] The first reading of An Act Respecting First Nations, Inuit and Metis Children, Youth and Families73 took place in February 2019.

Its stated purposes include the affirmation of the rights and jurisdiction of Indigenous Peoples in relation to child and family services.[74] Section 18(1) of the Act states that the inherent right of self-government recognized and affirmed by section 35 of the Constitution Act, 1982, includes jurisdiction in relation to child and family services, including legislative authority in relation to those services and authority to administer and enforce laws made under that legislative authority. These are all welcome features. However, the federal government retains the controlling hand by subjecting Indigenous child welfare laws and activities under them to the criteria set out in the legislation,[75] which also applies to provincial authorities who continue to participate in the child welfare area.

The Act provides that if an Indigenous group wishes to exercise its legislative authority in the child welfare area, it should give notice to the governments of each province in which it intends to exercise that authority and request that they enter into a coordination agreement with the Indigenous group and the federal minister.[76]

Canada negotiates several different types of self-government agreements. Claims-related self-government is negotiated in concert with comprehensive land claims agreements. Stand-alone self-government arrangements are usually negotiated with Indian Act First Nations and cover the First Nations reserve. Stand-alone agreements can be comprehensive and cover a range of subject areas, or sectoral, covering governance arrangements and one or two additional subjects like education or child welfare. Public government arrangements deal with

Aboriginal self-government negotiated within the context of broader, public government, as is the case in Nunavut.[63]

The 1995 Inherent Right Policy states that Canada is prepared to protect some of the elements of negotiated self-government agreements as modern treaties, where the other parties agree.[78] However, not all of the self-government agreements have that protection. For example, the Final Agreement between Canada and the Tesla Tlingit Council is a section 35 treaty, but its Self-Government Agreement is not.[79]

More recently, Canada has been at discussion tables “to explore new ways of working together to advance the recognition of Indigenous rights and self- determination”.[80] These tables are open to all Indigenous groups with section 35 rights to address long-standing issues that may fall outside the scope of other federal policies and processes like treaty and self-government negotiations.[81] At these tables, Canada and Indigenous groups “can explore new ideas and ways to reach agreements that will recognize the rights of Indigenous groups and advance their vision of self-determination”.[82] These largely sectoral agreements will not have the protection of section 35 of the Constitution Act, 1982.

Given the clarity of intention needed to establish extinguishment, it is unlikely that the exercise of delegated power would result in extinguishment of Indigenous law-making power. However, Canada’s policy gives resources and recognition to the exercise of delegated power in certain areas, tearing them away from the overall fabric of the Indigenous legal orders continued under the common law doctrine of continuity. These orders were left to continue, if they could, in circumstances of dire poverty, dislocation, and oppression. Knowledge about law-making, and the language in which it was conducted, are rare because of residential schools and other forms of cultural oppression. The heightened attention to delegated power is yet another burden hindering the recuperation of these venerable orders of law.

Canada’s policies on self-government are designed to function with the existing division of powers in the constitution. In formulating and applying them, Canada has paid no attention to the 2000 decision of Williamson J. of the Supreme Court of British Columbia that the Constitution Act, 1867, did not distribute all legislative power to Parliament and the provincial legislatures.[83] What was distributed in sections 91 and 92 was all of, but no more than, the powers which until June 30, 1867, had belonged to the colonies. Anything outside of the powers enjoyed by the colonies at that time remained outside of the powers of Parliament and the legislatures under the 1867 legislation.[84] Aboriginal rights survived, particularly what Williamson J. calls “a right of self-government akin to a legislative power to make laws”.[85] This decision, given in an unsuccessful challenge to the Nisjja’a Final Agreement,[86] [87] was never appealed and is not contradicted by any subsequent decision of any court of equivalent or superior rank. When the Supreme Court decided in Tsilhqot’in87 that “aboriginal rights” under section 35 are a limit on both federal and provincial jurisdiction,[88] it did not refer to the Campbell decision.

Section 35 jurisprudence

Section 35 of the Constitution Act, 1982, provides: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed”[89] Subsection (3) of section 35 states that “‘treat)' rights’ includes rights that now exist by way of land claims agreements or may be so acquired”.

Lamer CJC states in Van tier Peet: “In order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right”.[90] The chief justice does not focus on the continuity of law from past to present, but rather on the continuity between the past activities of the Indigenous claimant and those of the present day. He does so within the narrow compass of the “integral to a distinctive culture test”. The historical action must have been “integral” rather than incidental or so modest or routine it was not worthy of particular notice; and the activity must have been distinctive in the sense “that this tradition or custom makes the culture what it is”.[91]

Walters states that there is no case under the doctrine of continuity that protected only distinctive cultures. To have been so restrictive

would have violated the rule of law by undermining civil order, stability, and legal certainty in the territory by introducing confusing and (from the local perspective) arbitrary rule that deprived culturally non-integral parts of the legal system of any force. Even if culturally unimportant laws could be identified by judges swiftly, rationally, and comprehensively so as to avoid chaos . . . the sudden invalidity of these laws might have deprived the legal order of rules that, in practical terms, were indispensable to its continued functioning.[92]

The exceedingly narrow range of the Van der Peet test has had a devastating effect on claims that self-government is a right protected by section 35. In Pamajewon,[93] the appellants claimed that certain gambling activities in which they took part, and their Nations’ regulation of those activities, came within section 35. Chief Justice Lamer holds that this claim must be assessed according to the test in Van der Peet. “claims to self-government are no different from other claims to the enjoyment of aboriginal rights and must, as such, be measured against the same standard”.[94]

The first step in such analysis is to define the activity in respect of which the right is claimed. In Pamajewon, the court characterizes the claim as “to participate in, and to regulate, gambling activities on their respective reserve lands”.[95] The appellants characterize the claim as “the broad right to manage the use of their reserve lands”, which Lamer CJC dismisses as “a level of excessive generality”.[96] It is clear from his reasons that the self-government issue is to be considered activity by activity.[82] He concludes that while the evidence does demonstrate that the Ojibwa gambled, “it does not demonstrate that gambling was of central significance” and in no way addresses the extent to which it was subject to regulation by the community'.[98]

The activity-by-activity' approach to self-government embraced in Pamajewon allows for the deconstruction of the orders of Indigenous law which the doctrine of continuity recognized as existing when British sovereignty was asserted. From those deconstructed orders will be cherry-picked powers of self-government over only certain topics, which are considered to have been important enough to the traditional society' to meet the Van der Peet test. Doing that cherry-picking will be judges who are, for the most part, non-Indigenous. Under Canada’s self- government policies, the cherry-picking will be done at negotiation tables. However, unlike the results of judicial cherry-picking, the results of negotiations will not necessarily be protected by section 35. They must be modern treaties to secure such protection. When all the cherries have been picked, there may well be something left of the old orders of Indigenous law-making, under the doctrine of continuity', but the practical and legal position of these remnants is not immediately apparent.

210 Mary Eberts The land question

Philip Girard ct al. identify as one of the three major characteristics of Indigenous legal traditions that “they assumed and sought to perpetuate a sustainable relationship between human beings and the natural world”.[99] Marianne Ignace and Ron Ignace say that at its core the multi-dimensional system of resource access, use and management practiced by the Secwpemc “has always been sustained by a system of spiritual beliefs and sanctions that underlie the laws of good conduct, access to resources and trespass of land manifested in . . . our laws”.[100] In Anishi- nabe belief, the Earth is seen is a living entity with thoughts and feelings; it can exercise agency by making choices and is related to human beings at the deepest generative level of existence. What Borrows calls the land’s “sentience” is a fundamental principle of Anishinabc law, informing its legal personality.[101]

In order to ensure that this ethos of respect for the land and its inhabitants is preserved, it would be necessary for Canadian governments to recognize orders of Indigenous laws predicated on these beliefs. In virtually every aspect of its dealing with Indigenous lands, Canada has failed to do this.

Canada undertakes that modern treaties will provide Aboriginal parties with secure title to treaty settlement lands.[102] [103] Subsurface rights to resources are in federal or provincial jurisdiction, and the Interim Policy on comprehensive claims provides that “holders of subsurface rights must have fair access to settlement lands, where necessary, for exploration, development and production of resources”.10:1 The exercise of such rights is to be subject to lair compensation as determined through timely negotiations or by arbitration. The policy contains no explicit reference to the need to respect or preserve the land while exercising such “fair access” rights.[82] Only where the subsurface rights are on federal Crown land is there a possibility that the Aboriginal party might have access to such rights and thus the ability to control the manner and consequences of their access.[103]

Under Haida Nation,[106] where a First Nation has asserted but not yet established Aboriginal title, the Crown has a duty to consult about proposed development on the land, and if necessary and appropriate, accommodate the concerns expressed.

Cases arising from conflicts between developers and protesters trying to assert Indigenous law show that the duty to consult arises in circumstances where Canadian law has already authorized development activity or exploration. The duty to consult does not entail an obligation to stop a proposed development project if Indigenous consent is withheld. Rather, the project will continue, with whatever adjustments to its features are necessary to reach a deal. The resource development orientation of Canadian law and society' will, inevitably, prevail to some degree over the orientation of Indigenous law to safeguard the land. If the victory of the resource exploitation perspective is complete enough, the land may no longer be able to be used in a way consistent with the Indigenous interest, and the development might thus defeat the title claim.[107]

The conflict between the approaches of the two legal systems, if it reaches court, will be adjudicated upon by a Canadian court applying Canadian law.

In Frontenac Ventures Corporation v. Ardoch Algonquin First Nation,[108] the trial judge summarizes the evidence of someone protesting uranium exploration as “while he respects the rule of law, he cannot comply because his Algonquin law is supreme. He says he finds himself in a dilemma”.[109] Then he continues: “It is a dilemma of his own making. His apparent frustration with the Ontario government is no excuse for breaking the law. There can only be one law, and that is the law of Canada, expressed through this court”.[82]

The Court of Appeal states that injunctions sought by private parties to protect their interests should only be granted where every effort has been made by the court to encourage consultation, negotiation, accommodation and reconciliation among competing rights and interests.[111] This fails to acknowledge that the position of Algonquin law, forbidding the mining exploration, could never be vindicated in a process of consultation and accommodation. While acknowledging that the shortcomings of the consultation and accommodation process could produce “unsatisfactory, indeed tragic” results, the Supreme Court in Ktunaxa says that “in the difficult period between claim assertion and claim resolution, consultation and accommodation, imperfect as they may be, arc the best available legal tools in the reconciliation basket”.[112]

Where a court has found that Aboriginal title exists in land, the First Nation may, in theory, have greater ability' to prevent or curtail resource development.

Chief Justice McLachlin in Tsilhqot’in says: “The right to control the land conferred by Aboriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders”.[113] Without such consent, the government’s only recourse is to establish that the proposed incursion on the land is justified under section 35. To do that, it must show that it has discharged its procedural duty to consult and accommodate, that its actions are backed by a compelling and substantial objective, and that the governmental action is consistent with the Crown’s fiduciary obligation to the group.[114] The compelling and substantial objective must be considered from the Indigenous perspective and from the perspective of the broader public.[115] To constitute a compelling and substantial objective, the broader public goal asserted by the government must further the goal of reconciliation, having regard to both the Indigenous interest and the broader public objective.[116] [117]

This consent requirement accords with article 19 of the UN Declaration on the Rights of Indigenous Peoples,U/ which provides that states shall consult and cooperate in good faith with the Indigenous Peoples concerned, through their own representative institutions, in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them. Significant also is that the test the government must meet to justify its actions when there is no consent requires that the Indigenous perspective be considered at each of its stages. Through this test, the requirements of Indigenous land law will be brought to bear on a conflict about land use, something that does not occur in the ordinary consultation and accommodation case.

Chief Justice McLachlin adds to her reasons in Tsilhqot’in: “Governments and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group”.[118]

I would add to this excellent advice that such consent should not be sought with the modern-day equivalent of trinkets, that is a few jobs that will disappear when the construction phase of a big project is over, or some relatively modest investment in community development or training. Rather, consent should besought by adopting and acting in accordance with the ethos of Indigenous law, that is based in respect for the land and harmony between it and all its inhabitants, including people.

Indigenous legal orders in a “self-governing” world

“Self-government” agreements are required to operate within the existing distribution of powers under the constitution. The exercise of powers delegated from

Canada is required to be done in harmony with other jurisdictions and in a spirit of cooperation. Those operating under these agreements, are more like municipal governments. They do not constitute a third order of government in Canada.

The sectoral agreements now being negotiated by Canada do not implicate the whole of an Indigenous legal order. They thus contribute to the fracturing of the legal orders that have been recognized, but not actively protected or promoted, by the doctrine of continuity. They mirror the approach of the Supreme Court to self-government claims under section 35 of the Constitution Act, 1982. The difference between the two approaches is that a segment of the legal order recognized under section 35 is protected, whereas a sectoral agreement offers no section 35 protection and can be withdrawn or altered. Both shatter the coherence of the Indigenous legal order.

The Indigenous legal orders which predate contact and the assertion of sovereignty have not been extinguished by any act of government that meets the strict test for extinguishment. It would be appropriate under section 35 to hold that there is an aboriginal right at common law to the continuity of the legal order and the law-making historically undertaken by the plaintiff nation. This would not be a one-size-fits-all right; its assertion would require that proof be adduced of the historical situation. Accepting that there is a section 35 right to the continuance of one’s legal order would have a powerful beneficial influence on Canada’s approach to self-government: an Indigenous polity could resist the imposition of delegated power and insist on the deployment of its own inherent law-making jurisdiction.[119]

Ending the assault on Indigenous legal orders through section 35 is a necessary element of reconciliation.[120] It is also necessary under article 5 of the UN Declaration on the Rights of Indigenous Peoples, which provides that Indigenous Peoples have the right to maintain and strengthen their distinct political, legal, economic, social, and cultural institutions while retaining their right to participate fully, if they so choose, in the political, economic, social, and cultural life of the state. Article 34 provides that Indigenous Peoples have the right to promote, develop, and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, and practices; and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.

Even before any case changing the Supreme Court jurisprudence on section 35, Canada can specify that its interpretation of section 35 includes protection of Indigenous legal orders, thereby moving beyond the Van Лег Peet test. This is not such a big step: Canada already acknowledges in its policy that section 35 protects a right of self-government. While noting that Canada and Indigenous nations may have different views about the scope and content of the inherent right, it acknowledges that the courts have not yet authoritatively defined the right.[121]

Canada missed a significant opportunity to acknowledge that section 35 protects Indigenous legal orders in 2018, when it issued its Recognition and Implementation of Indigenous Rights Framework,[122] intended to replace the Comprehensive Claims and Inherent Rights Policies with a more up-to-date approach. Nowhere in this Framework does Canada recognize Indigenous legal orders surviving since before contact, even though contributing to meaningful reconciliation with Indigenous Peoples is one of the Framework’s purposes.[65]

One of the most effective strategies for the advancement of Indigenous lawmaking and legal orders is for Indigenous Peoples simply to exercise their historical law-making jurisdiction, continuing all the while their advocacy for recognition of that inherent jurisdiction. The case of adoption, in particular, has shown that strong capacity in Indigenous nations, and strong advocacy, can contribute to appropriate state legislation recognizing, rather than regulating, the exercise of Indigenous jurisdiction. Building and re-building capacity will be enhanced by fulfilment of Call to Action 50 of the Truth and Reconciliation Commission, which calls upon Canada, in collaboration with Indigenous organizations, to fund the establishment of Indigenous law institutions for the development, use, and understanding of Indigenous laws and access to justice in accordance with the unique cultures of Aboriginal peoples in Canada.[124]

A place for Indigenous law-making in the legal and constitutional arrangements of Canada will benefit not only Indigenous polities emerging from the horrors of colonization. It will benefit the Canadian legal order as a whole to embrace principles of Indigenous law throughout the criminal law, in resource and environmental law, and in the treatment of children and families, to mention three key areas.

10 The right to free, prior, and informed consent (FPIC)

  • [1] Edwards v. Attorney General of Canada, [ 1930] AC 124 at 136 [Edwards],
  • [2] Philip Girard, Jim Phillips & R. Blake Brown, A History of Law in Canada, Vol. 1: Beginningsto 1866 (Toronto: University of Toronto Press, 2018) at 9 [Girard et al.].
  • [3] In this chapter, I use Indigenous by preference whenever I can, as it includes but is not limited toFirst Nations, Metis and hunt peoples. I use aboriginal with a lowercase “a” when it is an integralpart of terminology in common usage, like “aboriginal rights”, when it used in a court judgmentand cannot be paraphrased away, and when it is used in an enactment. Where it does not seempossible to avoid the term “aboriginal” but it can be spelled with an uppercase “A”, I do that.
  • [4] Peter H. Russell, Canada’s Odyssey: A Country Based on Incomplete Conquests (Toronto: University of Toronto Press, 2017) [Russell].
  • [5] Michael Asch, On Being Here to Stay: Treaties and Aboriginal Rights in Canada (Toronto:University of Toronto Press, 2014) at 61, quoting Will Kymlicka, Politics in the Vernacular:Nationalism, Multiculturalism and Citizenship (New York: Oxford University Press, 2001) at148 [Asch].
  • [6] James Tully, “The Struggles of Indigenous Peoples for and of Freedom” in Duncan Ivison,Paul Patton & Will Saunders, eds., Political Theory and the Rights of Indigenous Peoples (Cambridge: Cambridge University Press, 2000) at 39-40 [Tully].
  • [7] Constitution Act, 1867, (UK), 30 & 31 Viet, c 3, s 91(24) [ Constitution Act, 1867].
  • [8] House of Commons, Minutes of Proceedings of the Special Committee on Indian Self-Government Issue No. 40 (12 and 20 October 1983) (Chair, Keith Penner), Second Report at39-40 [PennerReport],
  • [9] Canada, Indigenous and Northern Affairs Canada, The Government of Canada’s Approach toImplementation of the Inherent Right and the Negotiation of Aboriginal Self-Government (15September 2010), online: [Inherent Right Policy],
  • [10] Penner Report, supra note 8 at 43.
  • [11] Edwards v. Attorney General of Canada, [1930] AC 124 at 136 [Edwards],
  • [12] Reference re Manitoba Language Rights, [1985] 1 SCR721 [Manitoba Language Reference].
  • [13] Ibid, at 750.
  • [14] John Borrows, Recovering Canada: The Reemergence of Indigenous Law (Toronto: University of Toronto Press, 2002) at 118 [Borrows: Recovering Canada}.
  • [15] Ministry of the Attorney General, First Nations Representation on Ontario Juries: Report ofthe Independent Review Conducted by the Honourable Frank Iacobucci (February 2013) atpara 211 [Iacobucci].
  • [16] R. v. Williams, [1998] 1 SCR 1125 [Williams]- R. v. Cladue., [1999] 1 SCR 688 [Gladue];and R. v. Ipelee, 2012 SCC 12 [Ipelee], R. v. Hamilton (and Mason), [2004] OJ No. 3252(Ont CA) [Hamilton and Mason}.
  • [17] Ipelee, supra note 16, quoted in Iacobucci, supra note 15 at 56, para 222.
  • [18] Inherent Right Policy, supra note 9 at 5 of 17 preserves for the exclusive jurisdiction of Canada “maintenance of national law and order and substantive criminal law, including offencesand penalties under the Criminal Code and other criminal laws.”
  • [19] Irwin Toy Ltd. v. Qttebec (AG), [1989] 1 SCR 927 at 994 [Irwin Toy],
  • [20] Mitchell v. MNR, 2001 SCC 33 [Mitchell],
  • [21] Ibid, at para 9.
  • [22] Ibid, at para 10. The CJC relies in this passage on Brian Slattery, “Understanding AboriginalRights” (1987) 66 Can Bar Rev 727 [Slattery, Understanding] and see Binnie J. in Mitchell,supra note 20 at paras 141-142 quoting Slattery, Understanding at 738 and Brian Slattery,“Making Sense of Aboriginal and Treat)' Rights” (2000) 79 Can Bar Rev 196 at 201 [Slattery, Making Sense}.
  • [23] R. v. Van der Peet, [1996] 2 SCR 507, per CJC Lamer, at para 133 [ Van der Pect).
  • [24] Ibid, at para 265, citing Brennan J. in Mabo v. Queensland [No. 2] (1992) 175 CLR 1 at 58[Mabo}.
  • [25] Royal Proclamation, 1763, RSC 1985, App. II, No. 1, referred to in Van der Peet, supra note23 at para 270 [ Royal Proclamation of1763].
  • [26] Ontario, Law Society of Ontario, Review Panel on Regulatory and Hearing Processes Affecting Indigenous Peoples, Report to Convocation, 24 May 2018, which includes SupplementaryReport and Report of the Independent Reviewer Ovide Mercredi, Additional Recommendations[Mercredi]. The expression “empty of laws” is found at page 3 of Mercredi.
  • [27] John Borrows, Canada’s Indigenous Constitution (Toronto: University of Toronto Press,2010) at 116 [Borrows: Constitution}.
  • [28] Re Adoption of Katie E7-1807, (1961) 32 DLR (2d) 686 at 688 | Re Katie],
  • [29] Ibid, at 688.
  • [30] Ibid, at 690.
  • [31] Casimel v. Insurance Corporation of British Columbia, (1993) 30 B.C.A.C. 279 (C.A.). Thegrandparents of the deceased had adopted him under customary law after he had been abandoned by his mother, their daughter. They treated him, in all respects, as if he were their son,until his death at the age of 28. The Court held that they would qualify as dependent parentsunder the Insurance Act of BC and could claim his no-fault death benefit.
  • [32] The Constitution Act, 1982, s 25, being Schedule В to the Canada Act 1982 (UK), 1982, c11 [Constitution Act, 1982].
  • [33] Adoption Act, RSBC, c 5, s 46 [Adoption Act], See also Aboriginal Custom AdoptionRecognition Act, SNWT 1994, c 26, as amended [Aboriginal Custom Adoption Recognition Act],
  • [34] Maligarnit Qimirrujht Sc Nunavut Law Review Commission, Issue: Aboriginal CustomAdoption, n.d. at 1-2 [Nunavut Law Review Commission]. The Report notes that customadoption is more prevalent today than it was in historic times.
  • [35] Such concerns are also coming to the fore in judicial decisions: Steve Ducharme, “NunavutJudge Says Inuit Custom Adoption Law Needs a Makeover” (21 March 2017) NunatsiaqNews', and Canadian Press, “Judge Questions Nunavut Custom Adoption Procedures afterQuashing Certificate” (20 March 2017). See also Richard Gleeson, “NWT Judge OverturnsCustom Adoption after Father Files Lawsuit” (18 July 2017) CBC News.
  • [36] Nunavut Law Review Commission, supra note 34 at 25.
  • [37] Ibid, at 30.
  • [38] Nunavut Land Claims Agreement Act, S.C. 1993, c 29, which provides in s.23(l)(l) that thelegislature has power legislate with respect to property and civil rights in Nunavut.
  • [39] Nunavut Act, S.C. 1993, c. 28.
  • [40] Nunavut Law Review Commission, supra note 34 at 4-6.
  • [41] Bill 113, An Act to Amend the Civil Code and Other Legislative Provisions as Regards Adoption and the Disclosure of Information, 1st Sess, 41st Leg, Quebec, (assented to 16 June2018), SQ 2017, c 12.
  • [42] Quebec, Government of Quebec, Working Group on Customary Adoption in AboriginalCommunities, Report (Quebec: Government of Quebec, 16 April 2012 [Report of theWorking Group]).
  • [43] Ibid, at 137.
  • [44] Ibid, at 138.
  • [45] Assembly of First Nations Quebec-Labrador and First Nations of Quebec and LabradorHealth and Social Services Commission, Brief on Recognition of Effects of First NationsCustomary Adoption in and for the Purposes of Quebec Legislation, to the Committee onInstitutions, National Assembly of Quebec, 23 November 2016 (studying Bill 113) at 22[Brief].
  • [46] Ibid, at 8; see also First Nations of Quebec & Labrador Health and Social Services Commission, Reference Guide: Appointing a Competent Authority for Customary Adoption andTutorship in First Nations Communities/Nations (2018) at 4.
  • [47] Canada, Crown-Indigenous Relations and Northern Affairs Canada, Treaties Agreementsand Negotiations, online: ,at 4 of 7 (in second paragraph of section on Modern Treaties).
  • [48] Calder v. Attorney General of British Columbia, [1973]SCR313[ Calder].
  • [49] Minister of Indian Affairs and Northern Development, Comprehensive Land Claims Policy(Ottawa: Minister of Supply & Services Canada, 1986) at 5-6.
  • [50] The power to determine Band membership was delegated to Band Councils in 1985 by BillC-31, as part of a purported reform of long-standing sex discrimination in the Indian Act: AnAct to Amend the Indian Act, S.C. 1985, c 27, s 4. This power, however, still operates withinthe confines of the Indian Act’s registration system, and federal funding to First Nations isdetermined on the basis of the number of status Indians they include, not the number of members they recognize. Funding on the basis of the number with Indian status, as opposed to thenumber of members recognized by a self-governing Nation, was found to be unacceptable inTeslin Tlingit Councilv. Canada, 2019 YKSC 3 [Teslin], However, in a useful move, the powerto make membership rules is subject to the requirement that a membership code passed undersection 10 may not exclude from membership a woman who was restored to status pursuantto Bill C-31, after being deprived of her status on marriage to a non-status male.
  • [51] Penner Report, supra note 8 at 22.
  • [52] Ibid, at 24. See also An Act to Amend the Indian Act, RSC 1985, c 27, s 4. Penner Report, supra note 8 at 22.
  • [53] Ibid, at 44, 50. The Penner Committee mandate included only consideration of band councils under the Indian Act: House of Commons, Orders of Reference, Special Committeeon Indian Self-Government (Task Force), 22 December 1982 [Penner Report, supra note 8at v]. Thus, its recommendations did not deal with Metis or Inuit, only with what it calledIndian First Nations [Penner Report, supra note 7 at 59].
  • [54] The legislative backup plan is described in Penner Report, supra note 8 at 59.
  • [55] Penner Report, supra note 8 at 63.
  • [56] Ibid, at 64.
  • [57] Canada, Crown-Indigenous Relations and Northern Affairs Canada, General Briefing Noteon Canada’s Self-Government and Comprehensive Land Claims Policies and the Status ofNegotiations, online: at 2 of 62 [General Briefing Note].
  • [58] Ibid, at 12 of 62. See also Sechelt Indian Band Self-Government Act, SC 1986, c 27 [ Sech-elt] and Sechelt Indian Government District Enabling Act, RSBC 1996, c. 416 [SecheltEnabling Act].
  • [59] General Briefing Note, supra note 57 at 12.
  • [60] Ibid. Ail.
  • [61] Canada, Minister of Public Works and Government Services Canada, Gathering Strength:Canada’s Aboriginal Action Plan (Ottawa: Minister of Indian Affairs and Northern Development, 1997) at 8 [Gathering Strength].
  • [62] Inherent Right Policy, supra note 9 at 2.
  • [63] General Briefing Note, supra note 57 at 3.
  • [64] Canada, Crown-Indigenous Relations and Northern Affairs Canada, “Self-Government”,online:
  • [65] Ibid, at 5.
  • [66] See supra note 50.
  • [67] First Nations Land Management Act, SC 1999, c. 24 as amended [FNLMA].
  • [68] Ibid, at s. 18(1)(2).
  • [69] Family Homes on Reserves and Matrimonial Interests or Rights Act, SC 2013, c. 20 [FamilyHomes Act],
  • [70] Derrickson v. Derrickson, [1986] 1 SCR 285 [Derrickson]; Paul v. Paul, [1986] 1 SCR 306[ Paul).
  • [71] Family Homes Act, s 7(1).
  • [72] See Government of Canada, Indigenous Services Canada, Backgrounder November 30,2018: Federal legislation as an important step toward reducing the number of Indigenouschildren in foster care.
  • [73] Bill C-92, An Act Respecting First Nations, Inuit and Metis Children, Youth and Families, 1stSess, 42nd Pari., 2019 (first reading 28 February 2019) [Bill С-92].
  • [74] Ibid., s 8(a).
  • [75] Ibid., s 23 and criteria in ss 9, 10.
  • [76] Ibid., ss 20-24.
  • [77] General Briefing Note, supra note 57 at 3.
  • [78] Inherent Right Policy, supra note 9 at 6.
  • [79] Teslin, supra note 50.
  • [80] Canada, Crown-Indigenous Relations and Northern Affairs Canada, “Exploring New Waysof Working Together”, online: at 1 [Exploring New Ways].
  • [81] Ibid, at 2.
  • [82] Ibid.
  • [83] Campbell v. British Columbia (Attorney General), 2000 BCSC 1123 at para 180, [2000 BCJNo. 1524 Williamson J. [Campbell],
  • [84] Ibid, at para 76.
  • [85] Ibid, at paras 81-96.
  • [86] Put in place by Nisga’a Final Agreement Act, SBC 1999, c 2 [ Nisga’a BC] and Nisga’a FinalAgreement Act, SC 2000, c 7 [Nisga’a].
  • [87] Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 SCR 256 [ Tsilhqot’in].
  • [88] Ibid, at para 118.
  • [89] Constitution Act, 1982, ss 35(1) and (3), supra note 31.
  • [90] 14?» der Peet, supra note 22 at para 46.
  • [91] Ibid, at para 71.
  • [92] Mark D. Walters, “The ‘Golden Thread’ of Continuity: Aboriginal Customs at CommonLaw and Under the Constitution Act, 1982” (1999) McGill L.J. 711 at 741-742 [Walters].
  • [93] R. v. Pamajewon, [1996] 2 SCR 821 [ Pamajewon],
  • [94] Ibid, at paras 23-34.
  • [95] Ibid, at para 26.
  • [96] Ibid, at para 27.
  • [97] Ibid.
  • [98] Ibid, at para 28.
  • [99] Supra note 1 at 2.
  • [100] Marianne Ignace & Ronald E. Ignace, Secwepemc People, Land and Lam (Montreal:McGill-Queens University Press, 2017) at 209-210 [Ignace & Ignace],
  • [101] Borrows: Constitution, supra note 27 at 242-243.
  • [102] Indigenous and Northern Affairs Canada, Renewing) the Federal Comprehensive LandClaims Policy: Towards a Framework for Addressing Section 35, online: at s 2, item e [Renewing],
  • [103] Ibid., s 2, item j.
  • [104] Ibid.
  • [105] Ibid., s 2, item j.
  • [106] Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3SCR511[Haida Nation].
  • [107] Delgatnuukw v. British Columbia, [1997] 3 SCR 1010 at para 117 [Dclgamuuhv],
  • [108] Frontenac Ventures Corporation v. Ardoch Algonquin First Nation, 2008 ONCA 534[Frontenac],
  • [109] Ibid, at para 40.
  • [110] Ibid.
  • [111] Frontenac, supra note 107 at para 46.
  • [112] Ktunaxa Nation v. British Columbia (Forest, Lands and Natural Resource Operations),2017 SCC 54, [2017] 2 SCR 386 at para 86 [Ktunaxa],
  • [113] Tsilhqot’in, supra note 87 at para 77.
  • [114] Ibid, at para 77.
  • [115] Ibid, at para 81.
  • [116] Ibid, at para 80.
  • [117] United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UNGAOR,61st Sess., Supp No 49, Vol III, UN Doc A/61/49 (2007) [Declaration], Canada signified its unconditional acceptance of the Declaration in May 2016: Tim Fontaine, “CanadaOfficially Adopts UN Declaration on Rights of Indigenous Peoples” (10 May 2016) CBCNews, online: .
  • [118] Tsilhqot’in, supra note 87 at para 97.
  • [119] We already see assertions of inherent law-making jurisdiction in these stand-alone agreements. The Preamble to the Anishinabek Nation Education Agreement states “Whereas theParticipating First Nations assert that they have law-making power and other authority withrespect to education which they have never relinquished.” Enacted by Anishinabek NationEducation Agreement Act, SC 2017, c. 32 [ Anishinabek Education Act],
  • [120] Mary Eberts, “Reconciliation and the Rule of Law” in Janine I.’Esperancc et al., eds.,Canada and the Rule of Law: 150 Tears after Confederation (Ottawa: International Commission of Jurists Canada, 2018) at 241-246 [Eberts].
  • [121] Westbank First Nation Self-Government Agreement between Fler Majesty the Queen inRight of Canada and Westbank First Nation at Preamble and Article 1(b) [ Westbank Self-Government Agreement]. Enacted by Westbank First Nation Self-Government Act, SC 2004,c 17 [ Westbank Self-Government Act],
  • [122] Canada, Crown-Indigenous Relations and Northern Affairs Canada, Overview of a Recognition and Implementation of Indigenous Rights Framework, online: at 12 [Framework],
  • [123] Ibid, at 5.
  • [124] Final Report of the Truth and Reconciliation Commission of Canada, Volume One: Summary, Honouring the Truth, Reconciling for the Future (Toronto: James Lorimer, 2015) at327 [TRC Final Report],
 
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