November 29, 2001
Chiefs of Ontario
188 Mohawk Street
Brantford, Ontario
N3S 2X2
Dear CHIEFS OF ONTARIO:
RE: Legal Opinion on “Penultimate Draft – Cooperative
AFN-DIAND Work-plans”
The Chiefs of Ontario have requested us to provide a legal opinion
on the above-noted document or set of documents, which consist of
three separate work-plans dated November 2, 2001 and labelled as
follows:
- Towards a Co-operative Approach on Government to Government
Relations between First Nations and Canada: Governance Legislation
and the Indian Act;
- Towards a Co-operative Approach on Government to Government
Relations between First Nations and Canada: Aboriginal and Treaty
Rights and Implementing the Inherent Right of Self-Government;
and
- Towards a Co-operative Approach on First Nations Social and
Economic Conditions.
More specifically, the Chiefs of Ontario would like us to examine
these documents, herein collectively referred to as the “Penultimate
Draft”, in two respects. First, what are the implications
for the inherent rights of First Nations, of accepting, pursuing
or acting upon the Penultimate Draft, especially work-plan no.1?
Second, is the Penultimate Draft consistent with Resolution no.
3 of the Annual General Assembly held in Halifax on July 17, 18
and 19, 2001?
I. IMPLICATIONS OF THE PENULTIMATE DRAFT ON ABORIGINAL AND
TREATY RIGHTS
A. FNG will Potentially violate Aboriginal and Treaty Rights
We cannot do an opinion on the Penultimate Draft without looking
at Minister Nault’s proposal to introduce a First Nations
Governance Act (“FNG Proposal”). Fortunately, we did
an opinion for the Assembly of First Nations (“AFN”)
on this proposal on April 10, 2001. This was distributed to Chiefs
and released to the public. We have not changed our opinion of the
FNG Proposal; and since the Chiefs of Ontario are part of the AFN,
we rely upon our April 10, 2001 opinion as a foundation for this
opinion. A copy is attached.
There is no doubt whatsoever that the FNG Proposal, if enacted into
law in the fashion proposed, will potentially infringe upon the
inherent rights of First Nations, that is, Aboriginal and Treaty
rights. We say “potentially” because once enacted into
law, it may be found by the courts to be constitutionally invalid,
if it violates section 35 of the Constitution Act, 1982. If it is
valid, then, obviously it will not infringe on inherent rights.
We described the nature and extent of the potential infringement
in our April 10, 2001 opinion. In summary, the FNG Proposal is intended
to deal prescriptively with internal matters of First Nation governance.
That is to say, it will prescribe how First Nations are to govern
themselves, in relation to a range of matters, including leadership
selection for example.
1. Self-determination and Self-government Affected by FNG Proposal
The inherent rights potentially affected by the FNG Proposal, of
course, are the rights of self-determination and self-government.
While the Supreme Court of Canada has not yet ruled on the matter,
the BC Supreme Court acknowledged the existence of an inherent right
of self-government in the Campbell case, the constitutional challenge
by the now BC Premier of the Nishga Agreement. Moreover, the Royal
Commission on Aboriginal Peoples (“RCAP”) recognized
the existence of the inherent right of self-government and declared
that things like elections and other internal governance matters
– precisely those things intended to be legislated in the
FNG Proposal – were within the “core areas” of
jurisdiction of First Nations. RCAP said that First Nations could
legislate in respect of these core areas on their own; there is
no need for federal legislation.
The counter-argument is that the Indian Act has been regulating
these matters of internal governance for years, so what is the cause
for concern now? The crucial difference has to do with the introduction
of section 35 of the Constitution Act, 1982. Section 35 “recognized
and affirmed” Aboriginal and Treaty rights that were “existing”
as at the date of the enactment of section 35 in 1982. In Sparrow,
the Supreme Court said that an Aboriginal and Treaty right is “existing”
if it has not been extinguished prior to 1982. It acknowledged that
Aboriginal and Treaty rights could be extinguished prior to the
enactment of section 35, but the Crown could only do so through
a clear and plain intention. Therefore, so long as the inherent
right of self-government survived until it became constitutionally
protected in 1982, it could not be extinguished thereafter except
through constitutional means, that is, by consent or constitutional
amendment.
Whether First Nations continue to possess an inherent right of self-government
is a question of fact and law, which must be examined on a case-by-case
basis. One of the key considerations in that examination, however,
is the impact of the Indian Act. Did the Indian Act prior to 1982
effect a blanket extinguishments of the inherent right of self-government?
It is doubtful because the legislation lacked the clear and plain
intention to do so. This is important because if the Indian Act
did not extinguish the inherent right of self-government, then it
is likely an existing Aboriginal and Treaty right that enjoys constitutional
protection under section 35.
2. Can the Violation of Self-determination and Self-government be
Justified by the Crown
That does not mean that the right cannot be infringed after 1982.
According to the Sparrow case, Aboriginal and Treaty rights can
be validly infringed by both federal and provincial legislation
if such legislation can be “justified”. The Court developed,
a “justification test” for determining if a law violates
section 35. There are two parts to the test. The first part looks
at whether the law has a valid legislative objective or purpose.
For example, in wildlife legislation, the objective might be “conservation”
and this would be a valid legislative objective. The objective of
the FNG Proposal will eventually be laid out in the preamble and
title of the Bill, and would probably be something like “good
governance, administration and accountability”. Given the
current political climate and the focus – whether well founded
or not – on First Nation accountability, this would likely
be seen to be a valid legislative objective.
The second part of the test looks at the honour of the Crown, or
the fiduciary aspect of the relationship between the Crown and First
Nations. Given that the Crown has a fiduciary obligation to protect
the rights of First Nations, is it appropriate for the Crown to
be infringing Aboriginal and Treaty rights with this legislation?
In addressing this question the Supreme Court said there are further
specific things that need to be examined, namely, has the First
Nation been consulted, does the infringement cause hardship, has
the Crown paid the First Nation compensation for the infringement.
The Supreme Court has also consistently maintained that infringement
must be assessed on a case-by-case basis looking at the specific
circumstances of the First Nation or nation in question.
Therefore, how First Nations conduct themselves in respect of their
inherent rights in the post-1982 period has far greater legal consequences,
because of section 35. First Nations will need to avoid conduct
that can be interpreted as consent or acquiescence to the extinguishments,
or more likely, the infringement of their inherent rights.
B. Level of Consultation Necessary for Minister Nault to
justify infringing the inherent right of self-government in the
manner envisioned in the FNG Proposal
In assessing the implications of the Penultimate Draft on the inherent
right of self-government, the key issue is the Crown’s duty
to consult. The danger of participating in any consultation process
-- which is what the Penultimate Draft establishes -- is that First
Nations may be consenting, approving or acquiescing in the infringement
of their inherent rights. So, the Penultimate Draft must be scrutinized
specifically in light of the Crown duty to consult and according
to a number of further considerations:
- • What level of consultation would be required for Minister
Nault to justify infringing the inherent right of self-government
in the manner envisioned in the FNG Proposal? In Delgamuukw, the
Supreme Court said the Crown duty to consult could vary in the
degree of approval required by First Nations: at one extreme,
it could mean simply informing the First Nation about the infringement
with no approval being required, or at the other extreme, it could
mean requiring First Nation consent to the infringement. The Court
gave wildlife legislation as an example of an infringement, which
would require consent. Clearly, Minister Nault would need to do
more than just inform First Nations about the FNG Proposal. Arguably,
because of the intrusiveness of the measure, consent of individual
First Nations should be required, either by
membership ratification votes, or at the very least, by BCR. However,
a court might accept something short of outright consent.
- Do the consultations, which have been undertaken by the Department
of Indian Affairs (“DIA”) to date, satisfy the Crown’s
duty to consult? Is approval of the Chiefs necessary or at least
preferable? It is highly doubtful that the consultations to date
are adequate in terms of section 35. First of all, the proposal
to bypass chiefs and councillors and to consult directly with
individual members is disrespectful of the political authority
of First Nation governments. This is not acceptable, especially
when it is those governments that stand to be most impacted by
the FNG Proposal. This goes against the honour of the Crown. Secondly,
the fiscal coercive measures allegedly being perpetrated against
First Nations and their organizations, to force them to cooperate
with the FNG Proposal, are also contrary to the honour of the
Crown. Thirdly, reports on consultations to date indicate a very
marginal level of participation, even by individual First Nation
members, probably insufficient to justify the infringements. Approval
of the Chiefs may or may not be necessary, but clearly, Minister
Nault and his government, especially the Department of Justice,
would much prefer to have the approval of the Chiefs. Without
it, there would serious doubt as to the constitutional validity
of any FNG legislation.
- Because it is unclear what level of consultation is required
to justify the FNG Proposal, engaging in any consultation process
could prove hazardous to the inherent right of self-government.
In short, it gives the Crown a licence to infringe. Therefore,
before entering into consultations, First Nations should insist
on some guarantees from Minister Nault, in writing, that he would
not proceed with the Proposal without some agreed upon level of
approval. Otherwise there is a danger that the Minister will proceed
unilaterally and he will be able to argue that he consulted First
Nations, even if there is widespread disapproval of the FNG Proposal
or certain measures in the Proposal.
1. Effects of Penultimate Draft on Crown’s Duty to Consult
How does the Penultimate Draft measure up against the above considerations?
Does it contain adequate guarantees? In our opinion, the Penultimate
Draft contains some serious deficiencies or problem, some of which
we will now describe:
- The statement of objectives and goals in the three work-plans
seems all right. But there is no guarantee or any assurance whatsoever
that the Minister will only proceed with the FNG Proposal if he
has a degree of the support of First Nations. In fact, there is
no guarantee that he will listen let alone consider First Nation
input.
- The Penultimate Draft seems to be based on blind trust. Given
the unilateral tendencies of this Minister and his government,
First Nations should insist on at least approval by the Assembly
of Chiefs.
- The first section of work-plan no. 1, entitled “communications”,
provides for a Joint Announcement” by the Minister and the
National Chief, one of the key messages of which will be that
“AFN supports changes to enable good governance of First
Nations…” Such an announcement in itself will give
political weight and probably legal weight to Crown assertions
that it has satisfied its duty to consult in respect of the FNG
Proposal.
- Work-plan no.1, at page 3, section 2. A. “Analysis &
First Nation public education”, seems to be based upon acceptance
of consultations undertaken by DIA to date. This may not be prudent,
since those consultations bypassed the Chiefs and their level
of participation even by individual First Nation members has been
relatively marginal. According to section 2. A., the focus is
upon an “an assessment of consultation findings to date,
assessment to be discussed and used to inform further analysis
and drafting”. It is uncertain whether new consultations
will be undertaken, as part of the first phase of legislative
changes, which meaningfully involve First Nation governments and
organizations. If this is the case, then the “policy options”
to be developed in section 2.B.of the work-plan, and the “legislative
package” in 2.C., will be shaped or predetermined by the
previous, faulty consultations.
- It seems clear from section 3 of work-plan no. 1 that further
consultations are planned with First Nations as part of future
“Broader Changes to the Indian Act Regime”. However,
these consultations will not be helpful or affect the first round
of amendments. For that matter, the results of these proposed
consultations might never be translated into legislation.
- The other two work-plans forming part of the Penultimate Draft
deal with “Aboriginal and Treaty Rights and Implementing
the Inherent Right of Self-Government” and “First
Nations Social and Economic Conditions”. Again, like work-plan
no.1, the statement of goals and objectives in both work-plans
is not bad, though they seem to be more vaguely expressed. The
purpose of these additional work-plans, it would appear, is to
make work-plan no. 1 more palatable or saleable to First Nations.
The major problem, however, is that there is no linkage between
work-plan no. 1 and the other two work-plans. In other words,
acceptance of the FNG Proposal is not contingent on agreement
on the final outcome of work-plans 2 and 3. It will be open for
the Minister to satisfy his duty to consult on the FNG Proposal,
by getting a buy-in from First Nations on work-plan no. 1, then,
abandoning the other two initiatives once the FNG Proposal gets
enacted into law.
- The other serious problem with work-plans 2 and 3 is the Minister
does not have the mandate from Cabinet to deal with either of
them.
To summarize this part of our opinion, the FNG Proposal if enacted
into law will potentially infringe upon First Nation Aboriginal
and Treaty rights, namely the inherent right of self-government.
As such, the Penultimate Draft could facilitate this infringement
by compromising the duty to consult which is placed upon the Crown
in order to justify such infringements pursuant to section 35 of
the Constitution Act, 1982.
II. IS THE PENULTIMATE DRAFT CONSISTENT WITH RESOLUTION
NO. 3 OF THE CHIEFS’ ASSEMBLY HELD IN HALIFAX, JULY 17, 18
AND 19, 2001?
There are actually three documents that need to be considered in
doing this part of our analysis: the Charter of the Assembly of
First Nations, Confederacy of Nations Resolution No. 15, adopted
on May 8, 9 and 10 in Vancouver, B.C., and the Chiefs-in-Assembly
Resolution No. 3 of July 17, 18 and 19, 2001. The earlier Confederacy
Resolution is referred to and ratified in the subsequent Chiefs-in-Assembly
Resolution.
A. Confederacy Resolution No. 15
We will start with the Confederacy Resolution. The purpose of the
Confederacy Resolution is clear from the “whereas” clauses
(“preamble”): quite simply, it is to express strong
disapproval of the “unilateral and arbitrary” manner
in which the Minister has decided to proceed with the FNG Proposal.
The first “therefore be it resolved” clause (“operative
clause”), repeats this objection, particularly in reference
to the fact that the Minister is “holding consultations and
drafting a Governance Act under the direction and control of the
Department of Indian Affairs”. It explicitly states that the
Confederacy“ rejects the process the Minister is currently
pursuing…” and instead proposes that, “First Nations
will draw up our own legislation”.
The preamble and first operative clause establish the position
of the Confederacy on Minister Nault’s FNG Proposal. The remaining
operative clauses direct or spell out certain actions to give effect
to this position of the Confederacy, including meeting with the
PM, boycotting the Nault process, lobbying and public education.
One action encouraged by the Confederacy, which is noteworthy, is
“developing First Nations criteria that clearly define the
high standard of conduct required for consultation and justification
when other governments consider any types of measures that may impact
or infringe upon First Nations”. This gives a strong indication
that the Confederacy did not intend that the AFN should engage lightly
in consultations (such as that related to the FNG Proposal), without
criteria establishing the standard of conduct of the Crown.
B. Chiefs-in-Assembly Resolution No. 3
The foundation for the Chiefs’ Resolution is the
Confederacy Resolution. The preamble to Chiefs Resolution contains
a lengthy recital of the position regarding the FNG Proposal adopted
in the Confederacy Resolution. Then, in the first operative clause,
the Chiefs-in-Assembly specifically ratified the Confederacy Resolution.
The second “therefore be it resolved” clause directs
the Executive Committee to inform the Minister and the PM that the
Chiefs reject the Nault Initiative. The third operative clause is
the one upon which the Penultimate Draft seems to be based. We will
quote it in its entirety:
BE IT FURTHER RESOLVED that Canada join with us, in a respectful
and effective way, to build a process that:
- Meaningfully addresses the implementation of our inherent right
to self-determination, and respects and honours the true spirit
and intent of our inherent Aboriginal title and rights and Treaty
rights as recommended by the final report of the Royal Commission
on Aboriginal Peoples; and
- Addresses the full range of changes which need to take place
in relation to the Indian Act so that First Nations no longer
face the barriers which have been created by the Act as we seek
healing in our communities, economic development and good accountable
governance;
- Addresses the need for Canada to recast its policies and institutions
so that these policies and institutions more directly support
First Nations recognition of our right of self-determination;
- Is directly linked to the fundamental land, Aboriginal title
and Treaty rights which are of critical importance to our inherent
sovereign Nations and to Canada as a whole;
- Supports the efforts of First Nations to implement self-determination
through our laws and institutions on the local, community, regional,
national and international levels; and
- Is implemented through a process that is truly respectful of
our Nations and their inherent right of self-determination, which
incorporates more appropriate timeframes and which represents
a true nation-to-nation relationship between Canada and all First
Nations, as recommended by the Council of Elders.
This provision seems to open the door to the co-operative approach
contemplated by the Penultimate Draft. However, this clause needs
to be read in its entirety and interpreted in a manner consistent
with the terms and intention of the entire resolution, including
the Confederacy Resolution, which it incorporates by reference.
It is true that the Chiefs’ Resolution of July 17, 18 and
19, 2001 does open the door to a joint process, but the parameters
of that process are limited.
We will examine these parameters in connection with the Penultimate
Draft:
- The first parameter is the rejection of the Nault process in
bringing forward the FNG Proposal. The Confederacy Resolution
is clear on this and it is reaffirmed in the Chiefs’ Resolution.
Indeed, the second operative clause of the Chiefs’ Resolution
directs the Executive Committee to inform the Minister and the
Prime Minister that “the Chiefs reject Minister Nault’s
proposed Governance act Initiative”. The problem with the
Penultimate Draft is that it does not reject the FNG Proposal;
in fact, it provides for its continuation and accepts to use the
consultations from the Nault process to date as a basis for the
first phase of Indian Act amendments.
- The second parameter for the establishment of a joint process,
as per the Chiefs’ Resolution, is the need for strong emphasis
on inherent rights, including Aboriginal title, Treaties and the
inherent right of self-determination. The Confederacy Resolution
speaks of First Nations developing their own laws. Even the clause
of the Chiefs’ Resolution quoted above gives implementation
of inherent rights priority over changes to the Indian Act. Paragraph
1) calls for the meaningful implementation of inherent rights,
“as recommended by …the Royal Commission on aboriginal
Peoples”, and paragraph 4) calls for the process to be “directly
linked to the fundamental land, Aboriginal title and treaty rights
…”. The Penultimate Draft does the very opposite of
what is intended by the Chiefs’ Resolution, it gives priority
to Nault’s FNG Proposal. Moreover, there is no direct linkage
between the FNG Proposal and inherent rights as required by the
Resolution: work-plan no. 1 is completely separate and is intended
to move ahead of progress on the other two work-plans. In fact,
Nault does not even have the mandate to deal with the items mentioned
in work-plans 2 and 3.
- The third parameter is that the joint process must define the
high standard of conduct required for consultation and justification
because of the high potential for infringement of inherent rights.
The level of approval required before the legislative initiative
is allowed to proceed should be defined. This parameter derives
from the explicit reference to this requirement in the Confederacy
Resolution, but it is also founded upon the inference that both
resolutions reject Nault’s process because it does not comply
with the honour of the Crown and the duty to consult.
Is the Penultimate Draft consistent with the Chiefs’ Resolution?
Not likely, and this becomes even more clear when one examines the
AFN Charter, which is the document pursuant to which both the Confederacy
and Chiefs-in-Assembly Resolutions were passed.
C. The AFN Charter
The Charter, in Article 2, paragraphs 3, 4 and 5, says
the AFN is built upon the principles that the authority of the Assembly
of First Nations is derivative and delegations of authority must
be strictly complied with:
ARTICLE 2
First Nations, in the pursuit of the ideals stated in Article 1,
shall subscribe to and maintain these Principles:
3. The purpose, authority, responsibilities and jurisdiction
of the Assembly of First Nations shall be derivative in nature and
scope. All actions or initiatives in excess of the delegation from
First Nations shall be null and void and of no force or effect.
4. All delegated power, mandates or responsibility derive from the
sovereignty of First Nations; and the persons or institutions entrusted
to exercise such delegation have a sacred trust and duty, in performance,
to comply strictly with the nature and quality of the delegation.
5. The Assembly of First Nations shall remain at all times an instrument
to advance the aspirations of First Nations and shall not become
greater in strength, power, resources or jurisdiction than the First
Nations for which it was established to serve.
Paragraph 6 of the same Article provides that decisions of a fundamental
nature affecting the rights of First Nations, require a specific
decision by the First Nations-in-Assembly to grant a mandate or
delegated power:
6. Any decision or direction on a subject matter of a fundamental
nature that may affect the jurisdiction, rights and survival of
First Nations, may be undertaken as a national or international
matter provided the First Nations-in-Assembly have reached a consensus
to
9 grant delegated power, mandate or responsibility to the Assembly
of First Nations. When all efforts at achieving a consensus have
been exhausted without a success, a positive vote of 60% of the
Chiefs and other designated representatives of First Nations shall
be sufficient for the Assembly of First Nations to undertake any
subject matter of a national or international matter.
Article 18, which describes the functions and the powers of the
Executive Committee, says in paragraph 8 that,
8. In implementing the decisions of the First Nations-in-Assembly
and the Confederacy of Nations, the Executive Committee shall comply
in all cases with the true spirit and intent of the delegation granted
from time to time.
The collective effect of these provisions in the AFN Charter is
to require that resolutions of the Chiefs-in-Assembly be strictly
interpreted, against the delegation of authority, particularly if
the decision is of a fundamental nature, which may affect the jurisdiction
and rights of First Nations. The FNG Proposal and the Penultimate
Draft potentially affect the rights of First Nations, so any decision
or resolution granting a mandate to deal with or implement them,
must be clearly and unequivocally expressed. Resolution no. 3 does
not in its terms or its spirit appear to authorize such activities
or proposed activities. If there is any doubt, then a clear mandate
should be sought in a duly called Chiefs Assembly.
III. CONCLUSION
In conclusion, we would like to highlight some of the major points
raised in our opinion:
- How First Nations conduct themselves in respect of their inherent
rights in the post-1982 period has far greater legal consequences,
because of section 35. First Nations will need to avoid conduct
that can be interpreted as consent or acquiescence to the extinguishments,
or more likely, the infringement of their inherent rights.
- The FNG Proposal if enacted into law will potentially infringe
upon First Nation Aboriginal and Treaty rights, namely the inherent
right of self-government. The Penultimate Draft establishes a
process for the Crown to carry out consultations in respect of
this Proposal in a manner, which does not contain adequate safeguards
for First Nations. As such, the Penultimate Draft could facilitate
this infringement by allowing the Crown to satisfy its constitutional
duty to consult at a standard lower than would otherwise be required.
- Justification for the Crown’s infringement of the inherent
right of self-government should require the consent of First Nations.
However, it is unclear what level of consultation the Courts will
require to justify the FNG Proposal. As such, engaging in any
consultation process could prove hazardous to the inherent right
of self-government. In short, it gives the Crown a licence to
infringe. Therefore, before entering into consultations, First
Nations should insist on some guarantees from Minister Nault,
in writing, that he would not proceed with the Proposal without
some agreed upon level of approval.
- In light of the AFN Charter and given the terms and the spirit
of the Resolution of the Chiefs-in-Assembly of July 17, 18 and
19, 2001, the Penultimate Draft does not conform 10 to the Resolution
because: first, it does not reject the FNG Proposal but rather
provides for its continuation; second, it does not give inherent
rights priority over the FNG Proposal and does not directly link
work and approval on the FNG Proposal with implementation of inherent
rights; and third, it does not define the criteria and high standard
of conduct for consultation and justification.
If you have any questions arising from this opinion, please contact
the undersigned.
Sincerely,
NAHWEGAHBOW, NADJIWAN, CORBIERE
Per: David C. Nahwegahbow
dndaystar@nncfirm.ca
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