The Supremes and the Aboriginal Brief

Over the last few years the Supreme Court of Canada has maintained a blistering pace in rendering judgments in the area of aboriginal law. These judgments have been different in character than the more famous decisions of the 1980's and 1990's (Delgamuukw and the first and second Marshall decisions) in that they have tended to be shorter and more focused in their effect. In this sense they appear to reflect the changing character of the leader of the Court as we move from the Dickson-Lamer years to the McLaughlin era. Where the Dickson and Lamer courts had to cope with the terra nullius of the post-1982 constitutional reforms, McLaughlin is strongly indicating a desire to consolidate what has happened over the last twenty five years and to assume a more traditional, incrementalist approach to the law. This shift is best summarized in a brief comment by Chief Justice McLaughlin in the Haida decision (where the Court was faced with an entirely new problem):

This case is the first of its kind to reach this Court. Our task is the modest one of establishing a general framework for the duty to consult and accommodate, where indicated, before Aboriginal title or rights claims have been decided. As this framework is applied, courts, in the age-old tradition of the common law, will be called on to fill in the details of the duty to consult and accommodate.

The Haida decision ran to a brief 80 paragraphs (including the summary of the lower court decisions and the facts). The equivalent judgment in the Lamer court undoubtedly would have run to well above a hundred heading to the two hundreds.

It appears that there may well be some slackening of the pace in the production of aboriginal decisions. There are only two cases currently on the Supreme Court of Canada docket that touch on aboriginal matters in any significant way, neither of which is an aboriginal rights case at all; indeed one of the cases is notionally not an aboriginal rights case at all on its face.

The first of these cases, which is scheduled to be heard on December 11, 2007, is the Kapp case. This is a so-called 'reverse discrimination' case concerning a group of non-native fishermen who went fishing in defiance of a closed season to protest a commercial opening that had been authorized for three Fraser River bands by the Department of Fisheries and Oceans. The commercial fishermen where charged and at the first level of court the charges against them were stayed on the basis that the opening for the three bands constituted racial discrimination against the commercial fishermen contrary to the Charter of Rights and Freedoms. Subsequently two other courts overturned the stay and convicted the commercial fishermen on the basis that there was no discrimination.

Kapp will be an important test for the Surpeme Court of Canada's approach to aboriginal matters. The Supreme Court has continually emphasized the concepts of negotiation and accommodation as the preferred means of resolving aboriginal rights disputes. That is, that it is up to the Governments and First Nations to contructively engage at the political level to devise solutions to these problems in the modern context. The Court has continually underlined the impracticality of having the court resolve these matters on a case by case basis where the implications of the decisions for either side and the general public are very hard to predict or manage. Inevitably though this approach will bump up against the expectations that some sectors have of formal equality between different people -- that is that different people will be treated the same way and will work in accordance with the same set of rules. Both the concept of aboriginal and treaty rights and the concept of accommodation imply different treatment for different segments of society. The question in Kapp will be how much room for movement does the Crown really have to move in accommodating aboriginal peoples?

What is particularly interesting about the timing of the Kapp decision is that it will come just as DFO is going through the process of outlining its vision for single, integrated commerial fishery without accommodation for aboriginal or treaty rights though commercial harvesting, except through participation in the general commercial fishery. Canada's New Government from an early date indicated its intention to move in this direction largely accepting the failed arguments in the Kapp decision as if they were in fact correct (watch how many times the political leadership on this issue over the next few months use the phrase 'racially segregated' or 'race based' fisheries in describing the alternative approach).

The course that the Supreme Court of Canada must run is a tricky one. If it moves too far toward the discrimination analysis then it establishes a narrow field of movement for the Crown in trying to accommodate aboriginal concerns. This will inevitably push aboriginal concerns toward court -- exactly what the Supreme Court has being trying to discourage. On the other hand, anti-discrimination is a matter near and dear to heart of this Court and so it will have to articulate some clear basis upon which the commercial opening can be justified without completely eviscerating s. 15 of the Charter (at least when it comes to aboriginal matters). What makes this task particularly tricky is that the Federal government itself actually refuses to characterize the commercial sales project as being either rights based or as an accommodation -- instead it is presented as a pure exercise of political and administrative will.

My suspicion is that the Court will uphold the decision of the Court of Appeal (that is hold that the opening was lawfull) but it is very hard to predict the basis for such a holding. There are three possibilities and all are reasonably in play. One could be to hold that there is no discrimination at play in this case at all -- a result reached in an earlier aboriginal rights/s. 15 case where non-status aboriginal people objected to the fact that only status Indians got a share of the money from Casino Rama. The second could be to hold that there is discrimination but that the discrimination is justified in a free and democratic society and is therefore a reasonable limit to s. 15. The third -- and this is a wild card -- would be to invoke s. 25 of the Charter which specifically protects aboriginal, treaty and 'other rights' of the aboriginal peoples from the impact of the Charter. This section has yet to be invoked by the Supreme Court of Canada for any purpose but there is a reasonable chance they will have to grapple with it in this case.

The second major case on the docket has just been given leave to appeal and will not be heard until 2008. This is an appeal (actually two appeals) arising out of the first two phases of the Victor Buffalo litigation. This is a case brought by two Alberta bands concerning the management of their monies over an approximately 100 year period. The reserves of these two bands produced significant oil and gas revenues which were invested by the Crown in general revenue at pathetically low interest rates that were essentially fixed by the Cabinet. After a very length trial the issue at its heart boiled down to a simple one -- could the Crown as fiduciary for the Band invest the Band's money in obviously unwise investments in reliance on the Indian Act? The evidence was clear that invested in even a relatively safe mix of investments the Band would likely have made 100's of millions if not billions more. At the Federal Court of Appeal all the judge's agreed that the Crown was a fiduciary (that is, had a special duty to protect the Band's interests) but split on the question of whether the Indian Act let the Crown off the hook. Two held that it did, while one very well respected judge held that it did not.

Personally I was surprised that the Supreme Court of Canada gave leave given the factual complexity of the case (the trial went on for years)but now that it has given leave suspect that things do not look so good for the Crown. The Supreme Court of Canada has been increasingly conservative in the area of aboriginal or treaty rights where there may be major policy implications concerning the allocation resources off-reserve, but has been increasingly aggressive where the issues relates to the reserves (the core homelands for the bands) and the remedy is money. Counterbalancing this is the Court's recent decision denying mentally disabled veterans damages for the government's failure to properly deal with their pensions, but there the case was much clearer that Parliament turned its mind to the issue and deliberately crushed their claim. The situation is nowhere as clear here.