Saba Ahmad is a Litigator working on environmental, administrative and commercial matters in Toronto. Learn more at www.sabaahmad.com
At the OBA Aboriginal Law Program at Institute 2013, Justice Harry LaForme presented provocative views on resetting the Canadian-Aboriginal relationship and argued the Idle No More movement “has it right”.
Justice LaForme began his speech after hearing presentations by an esteemed panel of Aboriginal law academics and practitioners. The experts exchanged views on many topics, including the duty to consult, the delegation of consultation duties to municipalities, and how the obligations of the Crown appear to have been abridged by recent federal law amendments and case law.
Justice LaForme remarked on how strange it felt, for him and his people to be discussed by experts, much as experts discuss commodities, trees or mines, as issues to be “managed”. He thanked Grant Wedge, Aboriginal Affairs Legal Director at Ontario’s Crown Law Office, for earlier acknowledging the Mississaugas of New Credit’s ancestral lands, and wished the audience would feel “as good about this place as we did, many years ago, when we were here all by ourselves.”
An attentive audience took in Justice LaForme’s passionate words as he traced the origins of current strained relations through a troubled history, which includes dubious jurisprudence that legitimized the Doctrine of Discovery and made First Nations people wards of the state.
Justice LaForme explained how Canada abandoned the original intent of Europeans and First Nations people to co-exist peacefully as equals, to co-operate with one another and to not interfere in each other’s national affairs. He stated that intent was evident in the 1613 Two Row Wampum Treaty and reaffirmed through subsequent treaties. First Nations people reasserted that intent in 1763 with Pontiac’s Uprising, which included coordinated attacks on English forts in present-day southern Ontario. The First Nations people were protesting Britain’s abandonment of treaty obligations in governing the interior following England’s victory in the Seven Years’ War, and cutting Aboriginals out of all decision-making processes.
Although King George III’s Royal Proclamation recognized that peace depended on Aboriginal consent, by the 1800s, First Nations communities began to be viewed as obstacles to European economic objectives. By the mid-19th Century, case law denied tribes had legal status and followed U.S. Supreme Court jurisprudence holding Indians had no title in lands to sell. Under the Discovery Doctrine, Aboriginal land was not freely assignable as original title passed to the British when land was “discovered” by early colonists.
Then with s. 91(24) of the Constitution Act, 1867, it was Canada’s job to define through legislation who Indians are and what their rights are, “never mind the treaties, or the original intent, or Pontiac’s uprising”. Further legal decisions made it clear that Indian rights depended on the goodwill of the sovereign.
This unilateral change in the nature of the Canada-Aboriginal relationship – from equal partners, to aboriginal dependency on government – continued to be reflected in case law, through to the 1984 decision of Guerin and the Queen, said Justice LaForme. In that case, the Supreme Court of Canada held that while Indians had rights to occupy and possess land, ultimate title resides in the Crown.
Justice LaForme linked the Supreme Court holding back to the Discovery Doctrine and other historical perspectives where Indians were savages to be conquered or restrained or, at best, assimilated.
Through the Indian Act, the federal government defined Aboriginal people as wards of the state, just as children or incapacitated persons require the protection of legal guardians.
Justice LaForme argued that the Idle No More movement is a predictable, natural consequence of unilateral changes to the Aboriginal-Canadian relationship, which reduced First Nations people to a state of dependency, and contributed to their shortened lives, chronic under-employment, and dramatic over-representation in prison populations. After centuries of marginalizing Indians and making them wards of the state, Justice LaForme said he was not surprised that Canada finds the relationship, which he labeled “fictional benevolent paternalism,” unworkable and expensive.
Justice LaForme predicted, with Canada’s current approach, the plight of First Nations people will get worse. However, he offered the possibility of reversing the trend, not through court processes, but by modernizing treaties to re-establish the original intentions of peaceful co-existence and cooperation. He noted representatives from the federal government and each provincial and territorial governments have to sit down at one table together with First Nations people and urged that Canadians are owed nothing less.
Highlights of other speakers:
Program Co-Chair Richard Ogden led the first panel through a series of well-organized questions about how recent legislative amendments affected the duty to consult and also the implications of a recent decision exempting municipalities from consultation requirements. Program Co-Chair Julie Jai led a second panel through 12-minute updates on recent case law developments, upcoming litigation and the ongoing Individual Assessment Process (“IAP”) to resolve certain claims in connection with the Indian Residential Schools Settlement Agreement. These are some highlights from those panel discussions:
After the panels, the audience broke into small groups to discuss two hypothetical scenarios raising ethical and professional concerns. Participants engaged in lively discussions about various professionalism issues, including: