I have been thinking lately that there is a certain similarity between how I observed the Crown operating in the lower courts in the 1970s and how I have observed the Crown working at the highest levels more recently. Let me explain and offer some brief biographical account.
I first started to do a certain kind of paralegal work – what would later be called “Native Courtwork” – making a connection between a Native person accused of an offense and a lawyer willing to represent the accused (and often doing much of the factual research) at Akwesasne, the Mohawk community bordered by Cornwall, Ontario in 1970.
In that first case, 40 Mohawk people were accused of standing on their own land, i.e., they were standing on a roadway between two bridges across the St. Lawrence River, but the land for the roadway and the bridges had never been surrendered or expropriated or otherwise transferred. In that instance I succeeded in having Alan Borovoy, of the Canadian Civil Liberties Association come down to represent the 40 accused persons.
Only after Alan had made his first appearance did the Crown start to examine the police photographs to see how many of the defendants could be identified by police officers who had been at the “bridge event.” Almost all the charges were dropped.
Over the next eight years I attended Court periodically in Cornwall, Ontario and in Valleyfield, Quebec. (Akwesasne is divided by the international border, the boundaries between Ontario and Quebec and Quebec and New York State; it also extends over five counties.) I represented mainly young people whose families were active in the traditional Longhouse, a religious and political structure that is, perhaps, a thousand years old and that was outlawed for several decades in Canada. The actual, physical Longhouse, at that time, was off “State Road”, the state highway running through the portion of Akwesasne occupied by New York State. (I don’t use this language to be sarcastic. I am in the midst of writing a thesis on burdens of proof in litigation between First Nations and the Crown. Even after all my years at Akwesasne I have not seen an account that would justify New York’s claim over this land. Nor is it any longer clear to me why ancient Mohawk and Haudenausonee (aka “Iroquois Confederacy”) institutions should have to prove their very ancient history.)
Enough of that! Although Longhouse people of all ages have an outstanding reputation for being peaceful and law abiding their young people appeared to be charged with criminal offences at a greater rate than the young people of non-Longhouse families. (I had become attracted to the Longhouse and its people both because their traditions are quite beautiful and because they had a long history of persecution by the Canadian state.)
The first case on which I worked after the bridge event involved a man, possibly in his late 20s, who was charged with throwing stones through the windows of the church and the band office in St. Regis Village, a portion of Akwesasne claimed by Quebec and accessible either by driving through New York State into a peninsula bound by the St. Regis River and the St. Lawrence. The charge of creating public mischief in ways that endangered life carries a very heavy sentence.
My client’s only defence was the 15 witnesses who had spent the night with him at a ceremony at the Longhouse, the one I mentioned earlier was on land claimed by New York State. He and I traveled to the Court in Valleyfield seven or eight times. (Some of the adjournments arose because the Court expected the Crown to produce a translator and the Crown could not be bothered.) On at least one occasion, the Crown approached me and offered to reduce the charge and go by summary conviction if my client would plead guilty. Knowing there were so many witnesses who observed him outside of Canada that night, neither the lawyer we had engaged from Montreal not I were likely to change his plea. On the contrary, I was eager to here just what evidence the Crown might offer.
On the eighth trip to Valleyfield a supernumerary judge from Montreal looked at the docket and dismissed the charges saying, “No one should have to come here eight times to have his day in Court.”
Cutting to the chase, I think I can say with a fair degree of certainty that on any occasion when I went into Court with an accused and announced the name of a somewhat prestigious lawyer from Toronto, Ottawa or Montreal, the Crown withdrew the charges. If this was not great for courtroom drama it was certainly good for the young people of Akwesasne. It appeared that the decision to lay charges was made by the police, that exculpatory evidence was not interesting either to the police or to the Crown, and that the Crown did not look closely at the evidence until they found that they were about to face a serious challenge.
Looking back from my present vantage point, as an allegedly mature student, writing a thesis on proof burdens in First Nations-Crown litigation, I am struck by the similarity, in attitude or posture, by the Crown in these often low level (not to say “minor”) charges and the Crown’s attitude in the Aboriginal and treaty rights cases that reach the Supreme Court of Canada.
I do not propose to rehearse my whole thesis here. Not even “just the highlights.” Only enough to show you what I mean.
The s.35(1) – the section of the Constitution Act, 1982 “recognizing and affirming existing Aboriginal and treaty rights — cases coming to the SCC pretty much fall into three categories. (1) Charges related to fishing, hunting, tree cutting or other forms of harvesting that the defendant and his community considers to be protected by s.35(1); and, (2) suits by one or more First Nations either to stop a project that threatens their lands and in regard to which, the First Nations parties allege, there have not been the consultations that the Court said, in R. v. Sparrow were required nor have their been efforts at accommodation or compensation. (Claims of rights on lands that have not been surrendered and as regards to which there has been no treaty are called “Aboriginal rights claims,” though sometimes a defendant can claim both an Aboriginal right and a treaty right to the same harvesting activity.) If those claims become a subject of negotiation the claim is referred to as a “comprehensive claim.”) (3) Cases reaching the SCC are suits brought by one or another of the handful of First Nations which hold a “modern land claim agreement’ with Canada and with a Province.
As different as these three types of cases appear, their similarity, mainly as regards the Crown’s posture, is far more striking than their differences.
People who have lived for hundreds, sometimes thousands of years, are required to prove their title to the land, unlike a European settler who occupied a piece of land and set about working it, whether by farming or some other means.
The Court has set down various tests for determining whether a community has an Aboriginal right to a given activity. Lamer, C.J., in Van der Peet, ruled that a practice could only be claimed as an Aboriginal right if (1) the claimant could prove that the practice was common before British claims of sovereignty; and, (2) the practice were “integral to the culture.” L’Heureux-Dubé J. and McLachlin, J., as she was at that time, each wrote dissents. The majority view in Van der Peet has probably been one of the two contemporary Aboriginal rights case most discussed in the academic legal literature.
After recently reading most of this literature, I will say that two arguments strike me as most telling. First, the need to prove that a right stems from some ancient time when Britain claimed one piece of latter-day Canada is what McLachlin J., followed by a number of scholars, have described as “frozen rights.” Many practices developed among First Nations as a result of European contact: sometimes to keep themselves apart; sometimes to find new food sources as more traditional food sources became scarce, and sometimes to meet the demands of a European market. (I am told by the Crees of Eeyou-Istchee, i.e., lands described elsewhere as Nouveau Québec, did not trap beaver with any frequency until they were persuaded to do so by the Hudson Bay Company. I should note that when beaver hats and other fur garments went out of style in Europe, there was no compensation paid for those who lost their work.)
Secondly, the “integral to a culture” standard is not one that could readily be applied to very many cultures. Lamer C.J. spent some effort distinguishing between practices that were “distinct” and those that were “distinctive”. His successors revisited this distinctive distinction, I think largely to move the Court away from a standard that is largely incomprehensible. Like a blunt instrument, it is both too broad and too narrow. I would have difficulty identifying the distinctive elements of the cultures with which I am most familiar, without qualifying those elements by stipulating in which period they were distinctive or integral. As Sakej Henderson, a Mi’k Maq man and professor of law at the University of Saskatchewan, among others, has observed, there is very little reason to think that the practices that appear most integral to those outside the culture, e.g., Supreme Court (or other) justices and those who view their culture from the inside.
When I was writing a book, in 1990 on the Cree and Inuit resistance to a second major Quebec hydro project, this one to be on the Great Whale River, I was told that their Grand Council then had 11 cases before the Courts. Imagine the expenditure of time, of money and of human dignity that was dissipated by that effort even if almost all the cases were won.
One such case sought a writ of mandamus requiring the Federal Administrator, an office created by the James Bay and Northern Quebec Settlement Act, i.e., the James Bay Agreement as ratified by Parliament to constitute an environmental impact study as required by the Act. Justice Paul Rouleau of the Federal Court described the Crown’s arguments as “ludicrous and incomprehensible.”
Rouleau J.’s terms of endearment could well be applied to a number of the quasi-criminal cases prosecuting a First Nations person for prohibited forms of harvesting. The requirement that a practice be “distinctive” in order for it to be “integral” is one such doubtful requirement.
I will close this note by mentioning two other highly dubious criteria imposed by the Courts and in need of revisiting. First, and perhaps most pervasive, the Court has repeatedly described a fiduciary obligation on the part of the Crown in regard to each First Nation or First Nation community. Yet the Crown persists in demanding an accounting by First Nation communities to the Government. My understanding is that when a fiduciary is mandated to manage another person’s affairs, during a period when the would-be beneficiary is indisposed, ill-disposed, unable to tend to his own affairs because of other obligations, e.g., cabinet ministers, or absent on a long cruise, it is the fiduciary who has the obligation to provide a full, accurate and honest accounting to the beneficiary upon his return. I have never seen such an accounting provided to First Nations communities, even when the House of Commons, in 1980, passed a resolution asking the Auditor General to audit the trust accounts of bands asking for such an audit. Instead we have Third Party Management, the equivalent of the old time Indian Agent being imposed and the Prime Minister asking for a full accounting to the Government, even though the First Nation in question, Attawapiskat, has posted its records online.
The second and, for now, my last example of a misplaced burden of proof is the one that requires First Nations people to demonstrate that a practice extends back to a time before British declarations of sovereignty. I won’t dwell on the arbitrary nature of that date, or the centuries between one area and another. Surely, it could be stipulated that each First Nation used all the resources available to it in order to sustain themselves; and, that most, if not all, carried on as vigorous a trade with their neighbours as circumstances would permit.
Each time that the Crown presents an argument, in any Court, but especially an Appeal Court, that lacks all plausibility, that, as was said by one distinguished scholar as regards the arguments offered in Guerin were “such an abuse of process as to bring the administration of justice into disrepute”, the notion of which successive chief justices have written and spoken of “reconciliation” becomes ever more remote.
Just as the Crown in the provincial court, by whatever name at that time, in Cornwall and in Valleyfield, were not much interested, 40 some odd years ago, in a careful consideration of evidence before laying charges, much the same attitude prevails among Justice Department lawyers and the Indian Affairs officials for whom the Justice Department supposedly lacks.
There is, of course, an old and rather naïve view by Ottawa standards that holds that the Attorney General is supposed to act on behalf of the public good and not advise the Queen and her Government as though they were private persons. This is not a view that holds much sway in Ottawa of late. On the contrary, after the Supreme Court ruled in favour of Guerin and held that the fiduciary obligation of the Crown to a First Nation was a real and justiciable obligation and not, as the Crown would have had it, “a mere political trust, a senior Justice official was heard to say of the Court’s decision, “They have their view of the law and we have our view of the law.”