Canada

Kirsten Carlson on The Supreme Court of Canada and Aboriginal and Treaty Rights

Matthew L.M. Fletcher1 Comment

Kirsten Matoy Carlson has posted her paper, “Political Failure, Judicial Opportunity: The Supreme Court of Canada and Aboriginal and Treaty Rights,” just published in the American Review of Canadian Studies, on SSRN.

Here is the abstract:

What role do courts play in public policymaking? Fifty years ago, Robert Dahl found that courts largely defer to the political process in public policymaking. Accepted by the majority of scholars today, Dahl’s view suggests skepticism that courts play a significant role in the policymaking process. The few scholars, who concede that courts play a role in policymaking, often see that role as less direct or as in response to public opinion. Using the development of Aboriginal and treaty rights policy in Canada as a case study, I find that the Supreme Court of Canada succeeded in revitalizing the making of Aboriginal and treaty rights policy in the 1990s even without the support of politicians or the public. In 1990, the Court irrevocably altered Aboriginal and treaty rights policy by establishing Aboriginal and treaty rights in section 35(1) of the Constitution and curtailing Parliament’s ability to extinguish these rights. Most notably, the Court reinvigorated the policymaking process by encouraging politicians to revisit Aboriginal and treaty rights policies. When they failed, the Court re-entered the policymaking arena by recognizing and protecting a wide range of Aboriginal and treaty rights from governmental incursion over the next six years. The Court’s emergence as a significant and influential policymaker was the product of historical and institutional forces. While legal mobilization, growing public support, and the judicialization of politics contributed to the development of the Court’s role, I use interviews with political and legal players as well as the Court’s own language to show how the failure of the political process influenced the Court to reinvigorate Aboriginal and treaty rights policymaking. My emphasis on political failure illuminates a more complex relationship between courts, the political process, and policymaking. It also highlights how courts can play an influential role in public policy making.

 

 

Unpublished California ICWA Opinion Reversing for Non-Compliance

Kate Fort2 Comments

A long and sad opinion here, but a few things of note:

-as usual, Jay Treaty arguments are brushed aside.

-the State’s assumption that a claim of tribal membership is vague doesn’t mean ICWA might apply. And families might involve many tribes, from geographically diverse areas.

-there is or was a dedicated ICWA court or docket in Los Angeles County.

-the foster parents were not interested in helping with reunification in the slightest.

Canadian Supreme Court Rules Against Grassy Narrows First Nation

Kate Fort

Decision here.

The central question on this appeal is whether Ontario has the power to take up lands in the Keewatin area under Treaty 3 so as to limit the harvesting rights under the treaty, or whether this is subject to Canada’s approval.

                    Ontario and only Ontario has the power to take up lands under Treaty 3. This is confirmed by constitutional provisions, the interpretation of the treaty, and legislation dealing with Treaty 3 lands.

                    First, although Treaty 3 was negotiated by the federal government, it is an agreement between the Ojibway and the Crown. Both levels of government are responsible for fulfilling the treaty promises when acting within the division of powers under the Constitution. Sections 109 , 92(5)  and 92A  of the Constitution Act, 1867  establish conclusively that Ontario holds the beneficial interest in the Keewatin lands and has exclusive power to manage and sell those lands as well as to make laws in relation to the resources on or under those lands. Together, these provisions give Ontario the power to take up lands in the Keewatin area under Treaty 3 for provincially regulated purposes such as forestry. Further; s. 91(24) of that same Act does not give Canada the authority to take up provincial land for exclusively provincial purposes.

                    Second, nothing in the text or history of the negotiation of Treaty 3 suggests that a two‑step process requiring federal supervision or approval was intended. The text of the taking‑up clause supports the view that the right to take up land rests with the level of government that has jurisdiction under the Constitution. The reference in the treaty to Canada merely reflects the fact that the lands at the time were in Canada, not Ontario.

                    Lastly, legislation subsequent to the signature of the treaty and which dealt with Treaty 3 lands confirmed Ontario’s right to take up that land by virtue of its control and beneficial ownership of the territory. It did not amend the terms of Treaty 3.

Four First Nations Sue the Federal Government Over Access to Safe Drinking Water

Kate Fort

Articles here and here.

The court action — filed by the Tsuu T’ina, Ermineskin, Sucker Creek and Blood First Nations — asks Federal Court to force Ottawa to upgrade their water systems, provide continuing support to keep them operating safely and to refund money the bands say the government has saved over the years by not doing so.

Filing here (via CBC).

Failure to Consult Decision out of British Columbia

Kate Fort

Here.

In determining whether the duty to consult was fulfilled, courts must consider whether the Crown met its duty to act honourably and provide a meaningful process of consultation, not whether the Crown and the First Nation reached agreement. As McLachlin C.J.C. instructed in Haida Nation at para. 63, the focus is not on the outcome, but on the process of consultation and accommodation. Accordingly I must decide whether the consultation process that took place fulfilled the Crown’s duty to provide a meaningful mid-range consultation.

***

As much as the Minister’s office was entitled to review and inform itself from and to a degree rely upon the engagement record, the Haida Nation duty to consult ultimately rested with the Province. It is only the Crown in right of the Province who had the ability to provide sufficient remedies to achieve meaningful consultation and accommodation: Rio Tinto at paras. 59-60. As the British Columbia Court of Appeal made clear in Neskonlith Indian Band at para. 68, local governments lack the authority to engage in a nuanced and complex constitutional process.
In my view the Province failed to ensure that the parties to the consultation understood the differences between the two types of consultation processes required. This confusion led to frustration, particularly on the part of the Nations, as the parties with the responsibility and authority were not at the table until the matter reached the Minister’s office in December 2012. The Province was obliged to make the s. 35 consultation process “as transparent as possible” and clearly articulate what roles the municipality and the Province were playing in carrying out the consultation: Ke-Kin-Is-Uqs v. British Columbia (Minister of Forests),2008 BCSC 1505 (CanLII), 2008 BCSC 1505 at para. 147.
Once the Ministry received Whistler’s engagement record, I am of the view that the consultation process engaged in by the Province relied almost exclusively on Whistler’s engagement record. The Province made little attempt to engage in its own consultation:  it held no face to face meetings with representatives of the Nations; it made no attempt to involve any other Ministry with whom the Nations dealt in other ongoing negotiations; and it denied requests for further consultation because of time constraints imposed by the upcoming election.

Although the Province had no obligation to agree with or accept the Nation’s position, the position of the Province, from beginning to the end of the short consultation period remained intransigent.  While appearing to listen the Crown was, in my view, in fact locked into its position from the beginning and ultimately closed the door to further discussions, advising the Nations the OCP had to be approved before the election writ dropped, thus foreclosing any further consultation.

33rd Anniversary of the Police Raids over Salmon Fishing at Restigouche

Kate Fort

Documentary available online here.

In Incident at Restigouche, filmmaker Alanis Obomsawin delves into the history behind the Quebec Provincial Police (QPP) raids on the Restigouche Reserve on June 11 and 20, 1981. The Quebec government had decided to restrict fishing, resulting in anger among the Micmac Indians as salmon was traditionally an important source of food and income. Using a combination of documents, news clips, photographs and interviews, this powerful film provides an in-depth investigation into the history-making raids that put justice on trial.

via @Mimiges

B.C. Supreme Court Decision to Quash Ministry Grant of Timber without Consultation

Kate Fort2 Comments

Decision in Ehattesaht First Nation v. British Columbia here.

Article here.

via @dougswhite