Opinions and Current Issues Blog

Saba Ahmad is a Litigator working on environmental, administrative and commercial matters in Toronto. Learn more at www.sabaahmad.com

#Institute2013 Highlights: Justice Harry LaForme Discusses #IdleNoMore at the OBA Aboriginal Law Program

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 Harry LaForme, Photo Credit:  Saba Ahmad

Justice Harry LaForme, Photo Credit: Saba Ahmad

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: 

FINAL Panel photo-4

Program Co-Chair Julie Jai and Professor Shin Imai with other panelists. Photo credit: Saba Ahmad

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:

  • Andrew Macdonald from the Ministry of Northern Development and Mines (“MNDM”), while discussing his Ministry’s experience with the duty to consult, and the MNDM’s operational policy for implementing consultation requirements, noted that with recent policy amendments, prospectors are now required to take a training course, which includes an Aboriginal component.
  • Paul Manning, a leading environmental law practitioner, expressed dismay that the Crown’s consultation requirements have been severely reduced because, for example, Bill C-38 reduced the number of projects subject to review and other legislative amendments that reduced the number of protected waters.
  • Juli Aboucher, an environmental law specialist in private practice, noted that for major projects, consultation has not gone away, but has become more complicated.  She described, for example, that under CEAA 2012, federal and provincial consultation requirements may be merged and it will be difficult to coordinate the various requirements to make sure nothing “slips through the cracks”.
  • All members of the panel considered that consultation may be required at some point leading up to certain legislative amendments.  For example, with changes to conservation regimes, First Nations people are clearly affected, but it is unclear how consultation might occur, and how affected First Nations people might identify suitable triggers.
  • Rusell Raikes, a lawyer at McKenzie Lake LLP, discussed the IAP settlement process, and how the number of claims is significantly more than expected, and how at the current rate, the process will not conclude for another four or five years, despite being slated to conclude this year.
  • Grant Wedge discussed recent decisions and noted that only six of fifty cases are from Ontario.  He lamented “megatrials” and how unacceptably long it takes to resolve disputes through court processes.  He urged practitioners to consider the need to find opportunities for negotiated settlements.  Program Co-Chair Julie Jai acknowledged the need for greater dialogue and promised to include the topic for next year’s program.
  • Professor Shin Imai, faculty at Osgoode Hall Law School since 1996, criticized the recent British Columbia Court of Appeal decision in Neskonlith Indian Band v. Salmon Arm (City), and also some of the commentaries about the decision.  The court held municipalities did not, along with planning responsibilities granted by the Province, have a duty to consult.  It ruled, absent a duty, the project could go ahead.  However, Professor Imai noted that the Crown has a duty to consult, whether or not the obligation passes to a municipality.  He stated the court’s order permitting the project to proceed in the absence of any consultation by any government agency was akin to agreements in 1763, where a settler would buy land from individual Indians for a “bag of trinkets”.

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:

  • Representing individuals of limited capacity;
  • The proper role of adjudicators in resolving IAP claims;
  • The importance of asking “Who is the client?”;
  • Ethical considerations in declining a representation;
  • The ethics of contingency fee arrangements;
  • Ensuring an individual has authority to speak on behalf of an Indian band;
  • Ensuring consultation occurs with the right Aboriginal communities; and
  • Conflicts associated with representing parties adverse to a law firm’s prior clients.
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