When I first began working with First Nations political organizations, a childhood friend who had become a rising star in the Ottawa public service told me, “Indian Affairs (DIAND) is the funny farm of the civil service.” Sadly, in the several decades since that conversation very little has changed. On the contrary the very qualities that won DIAND that award have, more recently, made Aboriginal land claims process, and particularly “specific claims” the Alice in Wonderland (AIW) of the Canadian Judicial System. It is this dubious quality, and particularly its significance for the judicial system that I want to share with readers of SLAW.
First, a word of background. Land claims are of two kinds: Comprehensive and Specific. Although the names were chosen by the government the idea that all land claims fall into these two categories is one of the few points shared by government officials and First Nations elders. Comprehensive claims are supposed to settle outstanding issues of First Nations that do not have treaties; and, in that sense they correspond to “Aboriginal rights” in section 35(1) of the Constitution Act, 1982. A Comprehensive claim that has resulted in a final agreement (as distinct from agreements in principle) is ratified by an Act of Parliament. Typically, the Agreement is an appendix to the ratifying Act. These are what are often referred to as “modern land claims agreements” and, under s. 35(3) they become constitutionally protected treaty rights. This ostensibly obvious point has, at times, been denied by Government, a feature to which I will return in my discussion of the Alice-in-Wonderland dimensions of Aboriginal land claims.
Specific claims, in contrast, arise in regard to unfulfilled treaty promises, primarily from treaties signed in the 19th and early 20th centuries. What is specific about these claims is that they allege non-fulfillment of a particular provision in an earlier treaty, though, generically, a modern land claim agreement could also give rise to a specific claim.
Given these definitions Aboriginal rights and treaty rights are two different, albeit related, bundles of rights. To slur them together is to obscure this important distinction. Lastly, the Supreme Court of Canada and First Nations elders have each consistently said that both bundles of rights are rights that belong to communities. Chief Justice Dickson addressed this point in Sparrow, the first case to afford the Supreme Court the opportunity to “explore the promise” of s. 35, in the words of Dickson, C.J.
The Alice-in-Wonderland qualities run throughout the Government’s response to both Aboriginal rights and to treaty rights, i.e., to comprehensive claims and to specific claims.
I will address the Wonderland qualities of Comprehensive claims first, and return to write some other day on the pitfalls and vagaries of Specific Claims in a later column.
Very soon after the ratification of the first comprehensive land claim, The James Bay and Northern Quebec Settlement Agreement (JBNQA), Canada and Quebec set about ignoring the Agreement and defying its provisions. By 1980, the consequences of the government’s failure to honour the treaty became so far reaching that the Commons Indian Affairs Committee pressured the Minister of Indian Affairs, John Munro, into appointing a Task Force to investigate the non-implementation. The Tait Report stands to this day as a manual on dishonourable administration.
When I was working on a book on a second James Bay project proposed by Hydro-Quebec, damming the Great Whale River and displacing the northernmost Cree community (Whapmagoostui) and the southernmost Inuit community (Kuujjuurapik), in 1990, the Eeyou Istchee (Crees of Quebec) had eleven cases before either the Superior Court of Quebec or the Federal Court.
One of the more noteworthy of these cases, Namagoose v. Robinson, arose when the Federal Administrator, having insisted for some years, that s. 22 of the JBNQA required a federal environmental assessment of any proposal that affected federal areas of jurisdiction, e.g., navigable waterways, suddenly reversed himself. The Crees went to the Federal Court for a writ of mandamus compelling the Federal Administrator to establish an environmental assessment. Crown counsel, on behalf of the Administrator, argued that the treaty was not part of a statute and, hence, had not been ratified. (Presumably they were arguing that the appendix was not a part of the statute and did not count as a ratification). Mr. Justice Paul Rouleau described this and other arguments of Canada and Quebec as “ludicrous and incomprehensible.”
These cases give us an inkling of the pitfalls which governments relish in this field. The Conservative deputy critic for Indian Affairs in 1980, Lorne Greenaway, identified a dysentery outbreak in James Bay and the consequent deaths of three children with the lack of sewers and drainage which had resulted from the non-fulfillment of federal treaty promises (amongst other causes). Monique Bégin, then the Minister of Health and Welfare, denied that there had been any deaths. Dr. Greenaway offered to table the death certificates. The Bégin response, is a particular variant on the Alice in Wonderland discourse in which “old Indian hands,” as they used to be known carry out federal policy while pretending to be acting for the benefit of the First Nations and their members.
R. v. Sparrow,  1 S.C.R. 1075 at 1103 was the first case to afford the Supreme Court of Canada the opportunity, in the words of Dickson, C.J. to explore “the promise of s.35.” The Chief Justice, speaking for the whole Court said that “[s]ection 35(1) is to be construed in a purposive way. A generous, liberal interpretation is demanded given that the provision is to affirm aboriginal rights.” It is, I think, both noteworthy and important, that Chief Justice Dickson had earlier, in Big M Drug Mart, an early Charter case on the federal Lord’s Day Act, devoted considerable space to describing, elaborating and defining the meaning of “a purposive interpretation,” both at large and specifically in a constitutional context.
I expect I will want to devote a third column in this series to the question of whether the need for a purposive interpretation is a key to understanding the conflict between the Government and the Courts in the interpretation of s.35. Here and now I am dealing with much more basic matters.
Early in the new millennium the several different First Nations and Inuit communities which had successfully negotiated a modern land claims agreement with Canada, and very often with a province as a participating government as well formed a body known as the Land Claims Agreements Coalition (LCAC). The purpose of the LCAC is to provide mutual support amongst the entities holding such agreements that need to lobby or to litigate in order to persuade the Government of Canada and the governments of various provinces to fulfil their obligations.
In other words, the LCAC exists solely for the purpose of inducing governments in Canada to fulfill their lawful obligations as set out in the ratifying legislation and to honour the undertakings they have made pursuant to the affirmation and recognition of these rights in s.35 of the Constitution Act, 1982.
Two short anecdotes will, I think, begin to describe the attitude of the Government of Canada and the gap between Canada and Indigenous parties to these agreements.
In the Constitution Act, 1982 the original section 37 prescribed a First Ministers’ Conference to which representatives of the Aboriginal peoples would be invited. The purpose of the Conference would be to “identify and define Aboriginal rights and treaty rights” as the terms are used in s.35(1). Naturally, there was a certain amount of backroom talk between both legal counsel and staff from the government and the Aboriginal peoples.
What came out of the talk became known as “the empty box v. the full box theory” of Indigenous rights. The federal lawyers held that s. 35(1) was “an empty box,” i.e., the Aboriginal rights and treaty rights recognized and affirmed in s. 35 had no meaning as it stood and would have only the meaning that the ministers, their governments and legislatures ascribed to it. The lawyers for the various Indigenous peoples, in contrast, that s. 35 was a full box: it held all the rights that their communities exercised before the effective exercise of British sovereignty.
Reading Sparrow, it is immediately clear that the characterization of s. 35 as an empty box does not sit well with Dickson C.J.’s reference to it as “a promise.” Indeed, if the Government is seen at one end of a spectrum and the elders of various First Nations at the other end the Court, though not without its faults, clearly is closer to the elders than to the Executive Government.
Jim Aldridge is counsel to the Nisga’a Nation. On December 4, 2007, Aldridge appeared with his client before the Standing Senate Committee on Aboriginal Peoples. Aldridge explained the gap between the Government’s view of the modern land claims agreements and the views of the Indigenous parties in the following way:
By and large, from the Aboriginal signatory side, entering into a land claims agreement is analogous to entering into a marriage: working out respective roles and responsibilities, communicating and sharing in order to have a happy and prosperous life together. Whereas from the Government of Canada’s side, it seems, on the contrary, to be regarded more as a divorce: we work out an agreement, we divide up the assets, we determine the monthly or annual payments and ask what exactly do I have to do and not a penny more in order to avoid being sued or seeing each other any more than we have to.
It is not difficult to grasp the gap in perception and in policy between the federal Government and Indigenous Governments when one view is presented as a marriage contract while the other sees the same instrument as a divorce decree.
This comes dangerously close to the gap between Alice in Wonderland and Alice’s Restaurant.