File No. 34986
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL OF BRITISH COLUMBIA)
BETWEEN:
ROGER WILLIAM, on his own behalf and on behalf of all other members
of the XENI GWET'IN FIRST NATIONS GOVERNMENT and
on behalf of all other members of the TSILHQOT'IN NATION
APPELLANT
AND:
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA,
THE REGIONAL MANAGER OF THE CARIBOO FOREST REGION and THE ATTORNEY
GENERAL OF CANADA
RESPONDENTS
AND:
THE ATTORNEY GENERAL OF SASKATCHEWAN,
THE ATTORNEY GENERAL OF ALBERTA,
THE ATTORNEY GENERAL OF QUEBEC,
and THE ATTORNEY GENERAL OF MANITOBA
INTERVENERS
FACTUM OF THE INTERVENER THE
TE'MEXW TREATY ASSOCIATION ("TTA")
JANES FREEDMAN KYLE
GOWLINGS
Suite 340 - 1122 Mainland Street
Vancouver, BC V6B 5Ll
#2600 - 160 Elgin Street
Ottawa, ON KIP lC3
Robert Janes and Karey Brooks
Edward J. Van Bemmel
Phone: 604.687.0549
Fax: 604.687.2696
Email: [email protected] and
[email protected]
Counsel for the Proposed Intervener, TTA
Direct: 613.786.0212
Direct Fax: 613.788.3500
Email: [email protected]
Agent for Proposed Intervener, TTA
2
ROSENBERG & ROSENBERG
67ID Market Hill
Vancouver, BC V5Z 4B5
David M. Rosenberg, Q.c. and Jay Nelson
Phone: 604.879.4505
Fax: 604.897.4505
Email: [email protected]
Counsel for the Appellant
GOWLINGS
#2600 - 160 Elgin Street
Ottawa, ON KIP lC3
Harry S. Brown, Q.c.
Phone: 613.233.1781
Fax: 613.563.9869
Email: [email protected]
BORDEN LADNER GERVAIS LLP
1200 - 200 Burrard Street
Vancouver, BC V7X 1T2
BORDEN LADNER GERVAIS LLP
World Exchange Plaza
100 Queen Street, Suite 1100
Ottawa, ON KIP 1J9
Patrick Foy, Q.C.
Phone: 604.687.5744
Fax: 604.687.1415
Email: [email protected]
Counsel for the Respondent, Her Majesty the
Queen in Right of the Province of British
Columbia and the Manager of the Cariboo
Forest Region
DEPARTMENT OF JUSTICE CANADA
900 - 840 Howe Street
Vancouver, BC V6Z 2S9
Brian McLaughlin and Jennifer Chow
Phone: 604.666.2715
Fax: 604.666.2710
Email: [email protected] and
[email protected]
Counsel for the Respondent, The Attorney
General of Canada
ATTORNEY GENERAL OF ALBERTA
1i h Floor, Standard Life Building
639 - 5th Avenue SW
Calgary, AB T2P OM9
Sandra Folkins
Phone: 403.297.3781
Fax: 403.662.3824
Counsel for the Intervener, Attorney General
of Alberta
Agent for the Appellant
Nadia Effendi
Phone: 613.237.5160
Fax: 613.230.8842
Agent for the Respondent, Her Majesty the
Queen in Right of the Province of British
Columbia and the Manager of the Cariboo
Forest Region
ATTORNEY GENERAL OF CANADA
Bank of Canada Building - East Tower
234 Wellington Street, Room 1212
Ottawa, ON KIA OH8
Christopher M. Rupar
Phone: 613.941.2351
Fax: 613.954.1920
Email: [email protected]
Agent for the Respondent, The Attorney
General of Canada
GOWLINGS
#2600 - 160 Elgin Street
Ottawa, ON KIP IC3
Henry S. Brown, Q.C.
Direct: 613.233.1781
Direct Fax: 613.788.3433
Email: [email protected]
Agent for Intervener, Attorney General of
Alberta
3
ATTORNEY GENERAL OF MANITOBA
ATTORNEY GENERAL OF
SASKATCHEWAN
FASKEN MARTINEAU DUMOULIN LLP
Barristers & Solicitors
2900 - 550 Burrard Street
Vancouver, BC V6C OA3
Charles F. Willms
Phone: 604.631.4789
Fax: 604.631.3232
Counsel for Business Council of BC, Council
of Forest Industries, Coast Forest Products
Association, Mining Association of BC And
Association For Mineral Exploration BC
ARVAY FINLAY
Barristers and Solicitors
1320 - 355 Burrard Street
Vancouver, BC V6C 2G8
Joseph J. Arvay, Q.C.
Phone: 604.589.4421
Fax: 888.575.3281
Email: [email protected]
Counsel for Assembly of First Nations
GOWLINGS
#2600 - 160 Elgin Street
Ottawa, ON KIP 1C3
Henry S. Brown, Q.C.
Direct: 613.233.1781
Direct Fax: 613.788.3433
Email: [email protected]
Agent for Intervener, Attorney General of
Manitoba
GOWLINGS
#2600 - 160 Elgin Street
Ottawa, ON KIP 1C3
Henry S. Brown, Q.c.
Direct: 613.233.1781
Direct Fax: 613.788.3433
Email: [email protected]
Agent for Intervener, Attorney General of
Saskatchewan
FASKEN MARTINEAU DUMOULIN LLP
1300 - 55 Metcalf St.
Ottawa, ON KIP 6L5
Stephen B. Acker
Phone: 613.236.3882
Fax: 613.230.6423
Email: [email protected]
Agent for Intervener, Business Council ofBC,
Council of Forest Industries, Coast Forest
Products Association, Mining Association of
BC And Association For Mineral Exploration
BC
SUPREME ADVOCACY LLP
397 Gladstone Avenue
Suite 100
Ontario, ON K2P OY9
Eugene Meehan, Q.c.
Phone: 613.695.8855 ext. 101
Fax: 613.695.8580
Email: [email protected]
Agent for Intervener, Assembly of First
Nations
4
PETER GRANT & ASSOCIATES
900 - 777 Hornby Street
Vancouver, BC V6Z 1S4
Peter R. Grant
Phone: 604.685.1229
Fax: 604.685.0244
Counsel for Gitanyow Hereditary Chiefs of
Gwass Hlaam, Gamlaxyeltxw, Malii, Gwinuu,
Haizimsque, Watakhayetsxw, Luuxhon and
Wii'litswx, on their own behalf and on behalf
of all Gitanyow
ROBERT B. MORALES
PO Box 356
Duncan, BC
Phone: 250.748.5233
Fax: 250.748.5264
Counsel for Hul'qumi'num Treaty Group
WHITE RAVEN LAW CORPORATION
16541 Upper Beach Road
Surrey, BC V3S 9R6
Terri-Lynn Williams-Davidson
Phone: 604.536.5541
Fax: 604.536.5542
Email: [email protected]
Counsel for Council of the Haida Nation
PETER GRANT & ASSOCIATES
900 - 777 Hornby Street
Vancouver, BC V6Z IS4
Peter R. Grant
Phone: 604.685.1229
Fax: 604.685.0244
Counsel for Office of the Wet' suwet' en Chiefs
GOWLINGS
#2600 - 160 Elgin Street
Ottawa, ON KIP 1C3
Henry S. Brown, Q.C.
Direct: 613.233.1781
Direct Fax: 613.788.3433
Email: [email protected]
Agent for Intervener, Gitanyow Hereditary
Chiefs of Gwass Hlaam, Gamlaxyeltxw, Malii,
Gwinuu, Haizimsque, Watakhayetsxw,
Luuxhon and Wii'litswx, on their own behalf
and on behalf of all Gitanyow
GOWLINGS
#2600 - 160 Elgin Street
Ottawa, ON KIP 1C3
Henry S. Brown, Q.C.
Direct: 613 .23 3.1781
Direct Fax: 613.788.3433
Email: [email protected]
Agent for Intervener, Hul'qumi'num Treaty
Group
GOWLINGS
#2600 - 160 Elgin Street
Ottawa, ON KIP lC3
Henry S. Brown, Q.c.
Direct: 613.233.1781
Direct Fax: 613.788.3433
Email: [email protected]
Agent for Intervener, Council of the Haida
Nation
GOWLINGS
#2600 - 160 Elgin Street
Ottawa, ON KIP lC3
Henry S. Brown, Q.C.
Direct: 613.233.1781
Direct Fax: 613.788.3433
Email: [email protected]
Agent for Intervener, Office of the
Wet'suwet'en Chiefs
5
NAHWEGAHBOW, CORBIERE
GENOODMAGEJIG
Suite 109 - 5884 Rama Road
Rama, ON L3V 6H6
David C. Nahwegahbow
Phone: 705.325.0520
Fax: 705.325.7204
Email: [email protected]
Counsel for Indigenous Bar Association in
Canada
MANDELL PINDER LLP
Barristers and Solicitors
422 - 1080 Mainland St.
Vancouver, BC V6B 2T4
Maria Morellato, Q.C.
Phone: 604.566.8563
Fax: 604.681.0959
Email: Mariara{mandellQinder.com
Counsel for First Nations Summit
DEVLIN GAlLUS
Barristers and Solicitors
556 Herald Street
Victoria, BC V8W 1S6
John W. Gailus
Phone: 250.361.9469
Fax: 250.361.9429
Email: johnra{devlingailus.com
Counsel for Tsawout First Nation, Tsartlip
First Nation, Snuneymuxw First Nation and
Kwakiutl First Nation
MANDELL PINDER LLP
Barristers and Solicitors
422 - 1080 Mainland St.
Vancouver, BC V6B 2T4
Louise Mandell, Q.c.
Phone: 604.681.4146
Fax: 604.681.0959
Email: [email protected]
Counsel for Coalition of Union ofBC Indian
Chiefs
GOWLINGS
#2600 - 160 Elgin Street
Ottawa, ON KIP lC3
Guy Regimbald
Direct: 613.786.0197
Direct Fax: 613.563.9869
Email: [email protected]
Agent for Intervener, Indigenous Bar
Association in Canada
GOWLINGS
#2600 - 160 Elgin Street
Ottawa, ON KIP lC3
Brian A. Cane, Q.C.
Phone: 613.233.1781
Direct Fax: 613.563.9869
Email: [email protected]
Agent for Intervener, First Nations Summit
SUPREME ADVOCACY LLP
397 Gladstone Avenue
Suite 100
Ontario, ON K2P OY9
Eugene Meehan, Q.c.
Phone: 613.695.8855 ext. 101
Fax: 613.695.8580
Email: emeehanra{suQremeadvocacy.ca
Agent for Intervener, Tsawout First Nation,
Tsartlip First Nation, Snuneymuxw First
Nation and Kwakiutl First Nation
GOWLINGS
#2600 - 160 Elgin Street
Ottawa, ON KIP 1C3
Brian A. Cane, Q.C.
Phone: 613.233.1781
Direct Fax: 613.563.9869
Email: [email protected]
Agent for Intervener, Coalition of Union ofBC
Indian Chiefs
6
MANDELL PINDER LLP
Barristers and Solicitors
422 - 1080 Mainland St.
Vancouver, BC V6B 2T4
Louise Mandell, Q.C.
Phone: 604.681.4146
Fax: 604.681.0959
Email: [email protected]
Counsel for Okanagan Nation Alliance and the
Shuswap Nation Tribal Council and their
member communities, Okanagan, Adams
Lake, Neskonlith and Splatsin Indian Band
STOCKWOODS LLP
TD North Tower, Suite 4130
77 King Street
Toronto, ON M5K 1H1
Justin Safayeni
Phone: 416.593.7200
Fax: 416.5936.9345
Email: [email protected]
Counsel for Amnesty International and
Canadian Friends Service Committee
FARRIS VAUGHAN WILLS & MURPHY
25 th Floor - 700 West Georgia Street
Vancouver, BC V7Y IB3
Tim A. Dickson
Phone: 604.661.9341
Fax: 604.661.9349
Email: [email protected]
Counsel for Bernard Conrad Lewis, on his own
behalf and on behalf of all other members of
the Gitxaala Nation
Ratcliff & Company LLP
Barristers and Solicitors
500 - 221 West Esplanade
North Vancouver, BC V7M 313
Gergory J. McDade, Q.c.
Phone: 604.988.5201
Fax: 604.988.1452
Email: [email protected]
Counsel for Chilko Resorts and Community
Association and Council of Canadians
GOWLINGS
#2600 - 160 Elgin Street
Ottawa, ON KIP lC3
Brian A. Cane, Q.c.
Phone: 613.233.l781
Direct Fax: 613.563.9869
Email: [email protected]
Agent for Intervener, Okanagan Nation
Alliance and the Shuswap Nation Tribal
Council and their member communities,
Okanagan, Adams Lake, Neskonlith and
Splatsin Indian Band
MICHAEL J. SOBKIN
90 blvd. de Lucerne
Unit #2
Gatineau, Quebec J9H 7K8
Phone: 819.778.7794
Fax: 819.778.1740
Email: [email protected]
Agent for Intervener, Amnesty International
and Canadian Friends Service Committee
GOWLINGS
#2600 - 160 Elgin Street
Ottawa, ON KIP 1C3
Matthew Estabrooks
Direct: 613.233.1781
Direct Fax: 613.563.9869
Email: [email protected]
Agent for Intervener, Bernard Conrad Lewis,
on his own behalf and on behalf of all other
members of the Gitxaala Nation
MICHAEL J. SOBKIN
90 blvd. de Lucerne
Unit #2
Gatineau, Quebec J9H 7K8
Phone: 819.778.7794
Fax: 819.778.1740
Email: [email protected]
Agent for Intervener, Chilko Resorts and
Community Association and Council of
Canadians
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PROCUREUR GENERAL DU QUEBEC
NOEL & ASSOCIES
1200, route de l'Eglise
2e etage
Quebec, QC GIV 4Ml
111, rue Champlain
Gatineau, QC J8X 3Rl
Genevieve Verreault Tremblay and Sylvain
Leboeuf
Counsel for the Intervener, Attorney General
of Quebec
Pierre Landry
Phone: 819.771.7393
Fax: 819.771.5397
Email: [email protected]
Agent for the Intervener, Attorney General of
Quebec
TABLE OF CONTENTS
PART I - STATEMENT OF FACTS .......................................................................................... 1
PART II - ISSUE ........................................................................................................................... 1
PART III - ARGUMENT ............................................................................................................ 1
A. The Application of the Doctrine of Reconciliation to s. 35 Rights by the Courts Below ................................. 1
B. When Defining Rights, the Doctrine of Reconciliation Should Focus on the Past ........................................... 2
C. Modern Reconciliation in Defining Aboriginal Title Fails to Give Any Meaning to the Concept of
Aboriginal Title ........................................................................................................................................................... 3
D. Modern Reconciliation in Defining Aboriginal Rights Undermines the Treaty Process ................................ 6
E. Modern Reconciliation in Defining Aboriginal Rights Undermines the Noble Purpose of Section 35........... 7
F. Applying the Doctrine of Reconciliation within the s. 35 Rights Framework .................................................. 7
G. Modern Reconciliation Best Occurs Through Negotiation ................................................................................ 9
PART IV - COSTS ..................................................................................................................... 10
PART V - ORDER REQUESTED ............................................................................................ 10
PART VI - TABLE OF AUTHORITIES .............................................................................•... 11
PART I - STATEMENT OF FACTS
1.
The Te'mexw Treaty Association ("TTA") represents five nations in the British Columbia
Treaty Process: the Snaw-naw-as First Nation, the Songhees Nation, the T'Sou-ke Nation,
the Beecher Bay First Nation, and Malahat First Nation (the "Te'mexw Nations"). These
nations entered into the Douglas Treaties in the early 1850s.
2.
The Te'mexw Nations are situated in what are now highly urbanized areas of southern
Vancouver Island. In the early 1990s, these nations entered into modem treaty negotiations
under the British Columbia Treaty Process to achieve recognition of their existing unextinguished Aboriginal title and Aboriginal rights and to implement the Douglas Treaties
in the modem context of southern Vancouver Island. These treaty negotiations continue
today.
PART II - ISSUE
3.
TTA's submissions are focused on the following narrow, but important, issue: in defining
Aboriginal rights and title, should the court focus on the Aboriginal lands as they would
have been historically understood (historical reconciliation) or should the court's approach
focus on the Aboriginal rights in light of modem competing interests (that is, modem
reconciliation). TTA submits that, subject to the limits on provincial jurisdiction, the bulk
of modem reconciliation should happen in the context of justification not definition.
PART HI - ARGUMENT
A. The Application of the Doctrine of Reconciliation to Section 35 Rights by the Courts
Below
4.
Section 35 of the Constitution Act, 1982 provides the framework through which the
interests of Aboriginal and non-Aboriginal people can be reconciled. l However, courts
have struggled with how to achieve that reconciliation? Reconciliation requires recognition
of the fact that "aboriginals lived on the land in distinctive societies, with their own
practices, traditions and cultures,,;3 however reconciliation has also been used in justifying
limiting Aboriginal rights. 4 Although this Court has expressed its preference that
R v Van der Peet, [1996] 2 SCR 507 at para 31 ["Vall der Peet"].
R v Sparrow, [1990] 1 SCR 1075 at 1109 ["Sparrow"]; See also McLachlin J.'s (as she then was) dissent in Van der Peet, ibid
at para 309.
3 R v Gladstone, [1996] 2 SCR 723 at para 73 ["Gladstone"]'
4 See especially Gladstone, ibid at para 73: "Aboriginal rights are a necessary part of the reconciliation of aboriginal societies
with the broader political community of which they are part; limits placed on those rights are, where the objectives furthered by
I
2
2
reconciliation be carried out through negotiation,S it has also, to varying degrees,
incorporated the doctrine of reconciliation into the Aboriginal rights framework itself.
5.
In this case, both the trial judge and the Court of Appeal applied the doctrine of
reconciliation in defining Aboriginal title, but in two different ways that lead to two
dramatically different definitions of Aboriginal title.
6.
The Court of Appeal adopted the Crown's narrow approach to Aboriginal title. It held that
Aboriginal title can be established only to specific, intensively used sites, and not more
broadly to hunting and trapping grounds. In other words, Aboriginal title was limited to
small, isolated patches of land. In support of its holding, the Court of Appeal stated that
the aspirations of the Crown and the broader community could not be unnecessarily limited
by Aboriginal title. 6
7.
The trial judge, however, after 339 days of trial, found the Crown's theory of Aboriginal
title (later adopted by the Court of Appeal) was a "postage stamp" approach and an
"impoverished view of Aboriginal title." The trial judge found that Aboriginal title must be
based on a "regional or territorial" standard, as this definition best accorded with the way
Aboriginal title was defined and understood historically.7
8.
Both the Court of Appeal and the trial judge incorporated a reconciliatory objective into
defining Aboriginal title.
However, the Court of Appeal's approach to reconciliation
accounted for modem conflicts, whereas the trial judge's approach focused on the past as
established by the evidentiary record of use.
B.
When Defining Rights, the Doctrine of Reconciliation Should Focus on the Past
9.
Any definition of Aboriginal rights and title should be based upon a historical
reconciliation of the competing historical interests of the Aboriginal peoples and the
Crown, not on a modem reconciliation of competing modem interests. TTA advances
three arguments in support of its position.
10.
First, defining rights to achieve modem reconciliation fails to afford meaningful
expression to section 35 rights and, in particular, to Aboriginal title. When the rights
those limits are of sufficient importance to the broader community as a whole, equally a necessary part of that reconciliation"
(emphasis in original). See also Delgamuukw v British Columbia, [1997] 3 SCR 1010 at para 165.
5 Haida Nation v British Columbia (Ministry of Forests), [2004] 3 SCR 511 at para 14.
6 William v British Columbia, 2012 BCCA 285 at para 219 ["William"].
7 Tsilhqot'in Nation v British Columbia, 2007 BCSC 1700 at paras 610 and 1376 ["Tsilitqot'in BCSC"].
3
section 35 seeks to recognize were crystallized, the modem interests of the Crown and nonAboriginal Canadians were not contemplated.
Taking account of modem interests
misconstrues section 35 rights and renders them illusory.
11.
Second, defining rights to achieve modem reconciliation undermines the treaty process.
This approach attempts to eliminate tension between Aboriginal rights and the aspirations
of the Crown and non-Aboriginal Canadians by defining Aboriginal rights in such a way
that no conflicts arise. This leaves Aboriginal people with nothing meaningful to negotiate
and casts doubt on the integrity of the treaty process.
12.
Finally, defining rights to achieve modem reconciliation is inconsistent with the noble
purpose of section 35 - which is to end the historical injustices Aboriginal peoples have
suffered. The modem reconciliation approach perpetuates those injustices by failing to
recognize rights before limiting them.
13.
TTA submits that modem reconciliation should occur after Aboriginal rights and title are
defined based on historical reconciliation. Subject to the limits on provincial jurisdiction,
this work should be done in the context of justification of infringement rather than the
definition of rights.
C.
Modern Reconciliation in Defining Aboriginal Title Fails to Give Any Meaning to the
Concept of Aboriginal Title
14.
The Court of Appeal relies on the doctrine of reconciliation to limit the scope of Aboriginal
title. Justice Groberman, writing for the Court, states:
.. .I see broad territorial claims to title as antithetical to the goal of
reconciliation, which demands that, so far as possible, the traditional rights of
First Nations be fully respected without placing unnecessary limitations on the
sovereignty of the Crown or on the aspirations of all Canadians, Aboriginal and
non-Aboriginal. 8
15.
The Court of Appeal, therefore, defines Aboriginal title by avoiding "unnecessary
limitations" on the aspirations of the Crown or the broader community. In its analysis, the
Court of Appeal is not referring to the aspirations of the Crown or Canadians existing in
1846 (the date of contact in British Columbia), but to the modem aspirations of the Crown
and Canadians. On this basis, the Court of Appeal concludes that Aboriginal title must be a
site-specific right, as this definition best furthers the goal of reconciliation. However,
8
William, supra note 6 at para 219.
4
following this approach, reconciliation is a one-way street. Limiting Aboriginal title to sitespecific claims clearly privileges the modem interests of the Crown and non-Aboriginal
Canadians in developing land and resources by denying an Aboriginal ownership and
governance interest on most Crown lands.
16.
In applying modem, rather than historical, reconciliation, the Court of Appeal disregards
the Aboriginal perspective on how the land was actually used in the past and on the aspects
of Aboriginal title that provide the First Nation with cultural security (e.g.: the ability to
control their lands for economic purposes).
Instead, the Court of Appeal concludes
Aboriginal title can be narrowly construed because Aboriginal non-ownership harvesting
rights will provide the First Nation with cultural security.9
17.
In relying on Aboriginal non-ownership harvesting rights as the primary source of cultural
security, the Court of Appeal relegates the Tsilhqot'in Nation to the stereotypical role of
hunters and gatherers, rather than owners of their lands with control over
them for
economic uses. These aspects of Aboriginal title, according to the Court of Appeal, are
irrelevant to maintaining a cultural connection to their lands.
18.
Further, while Aboriginal rights fall along a spectrum, they confer distinct benefits.
Aboriginal rights, defined based on the court's view of which traditional laws, customs and
practices of Aboriginal peoples pre-contact are "distinctive" and "integral", have been
described by one scholar as "prisons of culture"l0 and by others as condemning Aboriginal
rights to a state of perpetual "permafrost"ll. When it comes to title, however, as long as a
claimant can establish Aboriginal title, Aboriginal uses of that land are not necessarily
restricted to those connected to pre-contact customs, practices or traditions. Aboriginal title
conveys more flexibility.
9
William, supra note 6 at paras 235-237.
Michael Murphy, "Prisons of Culture: Judicial Constructions of Indigenous Rights in Australia, Canada and New Zealand", 87
Can Bar Rev 357 at 390. As Murphy explains at 376, "It would seem that indigenous people who previously were disadvantaged
by their radical differences from Europeans, are now disadvantaged when they cannot prove that they are different enough. While
not exactly ajurisprudence of frozen rights ... only so much cultural change, adaptation or interruption can be sanctioned before
rights disappear."
II See Kiera L. Ladner, "Take 35: Reconciling Constitutional Orders" in Annis May Timpson, ed., First Nations, First Thoughts
(Vancouver: UBC Press, 2009) 279 and Bradford W. Morse, "Permafrost Rights: Aboriginal Self-Government and the Supreme
Court in R. v. Pamajewon" (1997) 42 McGill LJ 1011. D' Arcy Vermette explains in "Colonialism and the Process of Defining
Aboriginal People" (2008) 31 Dalhousie LJ 211 at 231, that in defining Aboriginal rights "by placing Aboriginal identifiers in the
historical past rather than the present. .. the Court denies that Aboriginal people act in the world ... Aboriginal people are denied
the lUXUry of adaptation and change."
10
5
19.
In this case, the Court of Appeal draws on stereotypical ideas of Aboriginal "traditional
lifestyles" to scope the claim and confine the Tsilhqot'in to iterations of that stereotype. By
playing Aboriginal rights off each other in the course of defining these rights, the Court of
Appeal fails to "fully respect" the traditional rights of First Nations. It stifles the full
expression of section 35 rights by effectively denying Aboriginal title in favour of
Aboriginal harvesting rights.
20.
By determining that historical section 35 rights must be defined in a manner that will not
inconvenience the Crown and non-Aboriginal Canadians, the Court of Appeal's approach
achieves reconciliation by eliminating any possibility of conflict. Rather than first
recognizing that the Tsilhqot'in Nation exclusively occupied a large tract of land over
which the Crown and others now assert competing claims requiring reconciliation (through
either negotiations or the Sparrow justification analysis), the COU1i of Appeal simply
adopts a definition which precludes the possibility of sufficient occupation thereby
removing the necessity of any further reconciliation. The Court of Appeal's approach to
reconciliation extinguishes title before it is even defined.
21.
Implicit in the Court of Appeal's finding that Aboriginal rights cannot be defined in a way
that unnecessarily limits the aspirations of the Crown or the broader community is the
assumption that Aboriginal people have too much bargaining power, have frustrated
development, and have imposed inordinate costs on the public purse. However, in British
Columbia, for example, Aboriginal lands and resources have largely been developed,
diverted or confiscated without compensation or regard to the rights of Aboriginal people.
Treaties have been few and far between and many Aboriginal communities remain mired in
poverty. Leaving aside that these are matters Aboriginal people hoped section 35 would
address, the Court of Appeal's narrow approach to defining Aboriginal title (and implicitly
other s. 35 rights) seeks to avoid a problem that does not exist.
22.
While a narrow definition of Aboriginal title may be a pragmatic legal solution, it is at
complete odds with the Aboriginal perspective of title; the Court of Appeal's narrow
approach does not achieve the goal of true reconciliation as it eliminates the legal
protection of section 35 from the First Nations' understanding of Aboriginal title.
6
D.
Modern Reconciliation in Defining Aboriginal Rights Undermines the Treaty Process
23.
The Court of Appeal's approach to reconciliation also has the potential to render
meaningless the treaty and negotiation processes. All treaties will become historical treaties
over time and the circumstances in which they apply will change. The Court of Appeal's
approach opens the door for the courts to eliminate future conflicts by defining treaty rights
with reference to modern non-Aboriginal and Crown interests. This approach undermines
what Aboriginal people have been trying to achieve for over a century - to recognize and
respect the treaties based on what they negotiated and understood at the time.
24.
For TTA, their involvement in the modern treaty process is premised on this critical
foundation - that the Crown first respect the solemn commitments it made when it entered
into the Douglas Treaties in the early 1850's and the constitutional implications that flow
from those agreements. If that foundation is undermined, so too is the TTA's participation
in the modern treaty process.
25.
Successful modern treaty making depends on Aboriginal communities' trust that the courts
will enforce their treaty rights in the event the Crown refuses to respect them. For TTA,
before any treaty is ratified, the communities will no doubt demand to know why they
should enter into any treaty if the COUltS will at some later date simply define their rights to
avoid inconveniencing the future aspirations of the Crown and non-Aboriginal Canadians.
26.
Modern treaties and accommodation agreements are based on the recognition of ownership
of significant or valuable tracts of land and the transfer or sharing of Crown or private
fiscal resources.
These agreements are not without controversy.
However, these
agreements can be justified on the basis that they provide celtainty and reduce potential
legal conflicts flowing from competing claims of ownership. If Aboriginal title is reduced
to small site-specific tracts of land and the remaining rights are non-exclusive and nonconflicting (an implication of the Court of Appeal's decision) then the Crown and private
companies will be hard pressed to justify any public (or corporate) spending associated
with these agreements, other than on the frail grounds of moral fairness.
7
E.
Modern Reconciliation in Defining Aboriginal Rights Undermines the Noble Purpose
of Section 35
27.
Like many constitutional enactments, section 35 did not arise in a vacuum. 12 It was the
result of a long effort on the part of Aboriginal people to achieve legal recognition for
treaty and pre-existing Aboriginal rights. 13 Section 35, therefore, has a "noble purpose" - to
end the historical injustice Aboriginal peoples suffered "at the hands of [the] colonizers. ,,14
28.
Defining Aboriginal rights to protect the aspirations of modem non-Aboriginal society fails
to recognize Aboriginal rights that existed prior to contact. This subverts the promise of
section 35 by perpetuating the very historical injustices that necessitated section 35 in the
first place. Aboriginal and non-Aboriginal scholars have warned about the dangers of the
doctrine of reconciliation, as a judicial tool, in deepening colonial powers. IS
F.
Applying the Doctrine of Reconciliation within the Section 35 Rights Framework
29.
Any reconciliation at the definition stage should focus on the past and not on modem
conflicts. With respect to Aboriginal title, historically, Aboriginal people were recognized
as the occupiers and de facto governors of large tracts of undifferentiated lands. This is
reflected in instruments such as the Royal Proclamation of 1763 and the historic treaties.
These instruments do not differentiate between small areas of land that were exclusively
occupied by the Aboriginal nations and those that were characterized as "hunting and
fishing grounds".
30.
The imperial common law (which colonial and post-Confederation British Columbia
unlawfully refused to follow) also recognized that lands were not available for settlement
or resource exploitation until they were opened up under treaties. Negotiations in this
Sparrow, supra note 2 at 1105.
Cases such as R v White and Bob, [1964] BCI No 212 (BCCA), and in the early 1980s, R v Taylor and Williams (1981), 34 OR
(2d) 360 (Ont CA), began the process of confirming that treaties created legal rights. These cases also began the process of
confirming that treaties were honourable engagements between the Crown and the treaty-making First Nations and should not be
understood by their text (or lack of text) alone. Calder at al v Attorney-General of British Columbia, [1973] SCR 313, began the
process of having aboriginal rights and title recognized as continuing legal rights that had not been extinguished or abrogated by
the Crown's de facto (rather than de jure) assertion of control and ownership ofland.
14 R v Cote, [1996] 3 SCR 139 at para 53.
15 See e.g. D'arcy Vermette, "Dizzying Dialogue: Canadian Courts and the Continuing Justification of the Dispossession of
Aboriginal Peoples", (2011) 29 Windsor YB Access Just 55; Kent McNeil, "Reconciliation and Third-Party Interests: Tsilhqot'in
Nation v. British Columbia" (2010) 8: I Indigenous LJ 7; Ladner, supra note 11; Gordon Christie, "Developing Case Law: the
Future of Consultation and Accommodation", (2006) 39 UBCL Rev 139; Kent McNeil, "Reconciliation and the Supreme Court:
the Opposing Views of Chief Justice Lamer and McLachlin", (2003) 2 Indigenous LJ 1; John Borrows, "Sovereignty's Alchemy:
an Analysis of Delgamuukw v. British Columbia", (1999) 37:3 Osgoode Hall LJ 537; Russel Lawrence Barsh and James
Youngblood Henderson, "The Supreme Court's Vander Peet Trilogy: Native Imperialism and Ropes of Sand", (1997) 42 McGill
LJ 993.
12
13
8
regard could deal with small areas of land (e.g.: the Douglas Treaties and early central
Canada treaties where small areas were opened for settlement and large areas left closed) or
large areas (e.g.: the numbered treaties). In all cases, however, it was recognized that
before the Crown could exercise any rights over lands, or non-Aboriginal people could
settle on those lands, the negotiation of a treaty was required.
This reconciled the
aspirations of the Aboriginal people to maintain their governance systems, lands and
cultures with the Crown's objective of maintaining peaceful co-existence between the
Aboriginal people and settlers.
31.
Historical reconciliation when defining Aboriginal rights leads to the definition of
Aboriginal title found by the trial judge. Justice Vickers described a large area that was
regularly used and defended by the Tsilhqot' in. This definition sought to reconcile the
Tsilhqot'in understanding of their lands with the common law's understanding of
"occupy". It also reconciled the way senior government actors approached the Tsilhqot'in
Nation from time to time - whether it was Indian Reserve Commissioner O'Reilly
recognizing a large area needed to be reserved or Premier Harcourt who promised there
would be no further logging in the Tsilhqot'in Nation traditional territory without their
consent. 16 Justice Vickers' approach reflects the reality that the Tsilhqot'in Nation have
been and have remained in de Jacto control of these lands and now gives de jure
recognition to that reality.
32.
Removing consideration of the modem aspirations of the Crown and non-Aboriginal
Canadians from the definition stage of Aboriginal rights and title does not fail to reconcile
those interests under section 35. Those interests are accounted for in two ways: under the
duty to consult before the Crown develops land subject to Aboriginal title; and, if the
Crown infringes rights without the consent of the First Nation, under the justification test.
33.
Placing modem reconciliation in the justification stage of the Aboriginal rights framework
best serves the promise of section 35 for a number of reasons. First, it is consistent with
the text of section 35, which starts with the concept of recognition. The first task of the
Crown and the courts is to recognize the rights of Aboriginal people and not limit them by
16
Tsilhqot'in SCSC, supra note 7 at paras 70 and 292.
9
avoiding conflicts with non-Aboriginal interests. This Court in Mitchell v. MNR confirmed
that reconciling modern conflicts belongs in the justification stage:
This Court has not expressly invoked the doctrine of "sovereign
incompatibility" in defining the rights protected under s. 35(1). In the Van der
Peet trilogy, this Court identified the aboriginal rights protected under s. 35(1)
as those practices, customs and traditions integral to the distinctive cultures of
aboriginal societies: Van der Peet, supra, at para. 46. Subsequent cases affirmed
this approach to identifying aboriginal rights falling within the aegis of s. 35(1)
(Pamajewon, supra, at paras. 23-25; Adams, supra, at para. 33; Cote, supra, at
para. 54; see also: Woodward, supra, at p. 75) and have affirmed the doctrines
of extinguishment, infringement and justification as the appropriate framework
for resolving conflicts between aboriginal rights and competing claims,
including claims based on Crown sovereignty. 17
34.
Second, modern reconciliation in the justification stage is appropriate from an evidentiary
perspective. In the definition stage, the Court has assigned the burden of proof to the First
Nation asserting the right. In the justification stage, the burden of proof falls to the Crown,
or to the party seeking to justify an infringement. The Crown is required to show that it
acted in a manner consistent with the honour of the Crown and that it did not run
roughshod over Aboriginal rights and aspirations to advance non-Aboriginal interests. That
the Crown is required to adduce the evidence to support modern reconciliation makes
practical sense.
G.
Modern Reconciliation Best Occurs Through Negotiation
35.
The reconciliation of cultures of Aboriginal and non-Aboriginal societies is no different
than any other reconciliatory project. At its core, it is about setting right wrongs that have
divided people, in this case for over a century. The core wrong in the relationship between
non-Aboriginal and Aboriginal people since the late 19th century is the failure to respect
Aboriginal and treaty rights as legal rights.
It has not historically been an issue that
Aboriginal people have frustrated the ambitions or aspirations of non-Aboriginal
Canadians. When Aboriginal people fought for section 35 rights, they were not fighting to
remedy the problem that the goals of non-Aboriginal peoples were being frustrated - they
were fighting to ensure that Canada's history of neglecting Aboriginal and treaty rights and
of adopting stereotypical views of Aboriginal peoples changed under Canada's new
constitutional order.
17
Mitchell v MNR, [2001] I SCR 911 at para 63.
10
36.
Reconciliation first requires an acknowledgement of the truth and reality of the historical
situation. In this case, the recognition of Aboriginal ownership and control over their lands
before and after the arrival of the colonial governments. (That recognition also requires
respect for both the pre-existing Aboriginal rights and the rights embodied in the treaties
negotiated in colonial and modem times.)
After rights are recognized and affirmed, the
hard work of reconciliation can begin. As observed by Desmond Tutu, Chair of the South
Africa Truth and Reconciliation Commission:
Reconciliation is not about being cozy; it is not about pretending that things were
other than they were. Reconciliation based on falsehood, on not facing up to
reality, it not true reconciliation and will not last ... The truth can be, and often is,
divisive. However, it is only on the basis of truth that true reconciliation can
take place. True reconciliation is not easy; it is not cheap. 18
37.
The hard work of reconciliation is best left to the parties themselves - through honourable
negotiation between the Crown and the First Nation that defines respective rights on the
Aboriginal lands and results in an arrangement acceptable to both parties. This is an
outcome that best respects the pre-existing interests of the First Nation and the traditions of
the common law. However, it is a framework that only has meaning to the degree that the
courts are willing to give real effect to existing section 35 rights when negotiations are
unsuccessful.
PART IV - COSTS
38.
The TTA does not seek costs and requests that none be awarded against it.
PART V - ORDER REQUESTED
39.
The TTA requests that it be granted leave to make oral submissions. ITA asks that the
appeal be disposed of as suggested by the Appellant.
ALL OF WHICH IS RESPECTFULLY SUBMITTED.
Dated the 19th day of September, 2013
~&rRobert J.M. J
([)
18
South Africa, Truth and Reconciliation Commission, Final Report, vol 1 (Cape Town: Department of Justice, 2003) at 17-18.
11
PART VI - TABLE OF AUTHORITIES
Cases
Cited at
paras.
Haida Nation v British Columbia (Ministry of Forests) , [2004] 2 SCR 511
4
Mitchell v MNR, [2001] 1 SCR 911
33
R v Gladstone, [1996] 2 SCR 723
4
R v Sparrow, [1990] 1 SCR 1075
4,27
R v Van der Peet, [1996] 2 SCR 507
Tsilhqot'in Nation v British Columbia, 2007 BCSC 1700
William v British Columbia, 2012 BCCA 285
4
7,31
6, 14, 16
Text
Bradford W Morse, "Permafrost Rights: Aboriginal Self-Government and the
Supreme Court in R. v. Pamajewon" (1997) 42 McGill LJ 1011
D' Arcy Vermette, "Dizzying Dialogue: Canadian Courts and the Continuing
Justification of the Dispossession of Aboriginal Peoples", (2011) 29 Windsor
YB Access Just 55
D' Arcy Vermette, "Colonialism and the Process of Defining Aboriginal People"
(2008) 31 Dalhousie LJ 211
Gordon Christie, "Developing Case Law: the Future of Consultation and
Accommodation", (2006) 39 UBCL Rev 139
John Borrows, "Sovereignty'S Alchemy: an Analysis of Delgamuukw v. British
Columbia", (1999) 37:3 Osgoode Hall LJ 537
Kent McNeil, "Reconciliation and Third-Party Interests: Tsilhqot'in Nation v.
British Columbia" (2010) 8: 1 Indigenous LJ 7
Kent McNeil, "Reconciliation and the Supreme Court: the Opposing Views of
Chief Justice Lamer and McLachlin", (2003) 2 Indigenous LJ 1
Kiera L. Ladner, "Take 35: Reconciling Constitutional Orders" in Annis May
Timpson, ed., First Nations, First Thoughts (Vancouver: UBC Press, 2009) 279
Michael Murphy, "Prisons of Culture: Judicial Constructions of Indigenous
Rights in Australia, Canada and New Zealand", 87 Can Bar Rev 357
Russel Lawrence Barsh and James Youngblood Henderson, "The Supreme
Court's Van der Peet Trilogy: Native Imperialism and Ropes of Sand", (1997)
42 McGill LJ 993
South Africa, Truth and Reconciliation Commission, Final Report, vol 1 (Cape
Town: Department of Justice, 2003)
18
28
18
28
28
28
28
18,28
18
28
36