Wednesday, July 9, 2014

Crown Infringement of Aboriginal Title will not be easy

People have pointed to the fact that the government retains the right to infringe Aboriginal Title.  I think this is a misplaced hope because I think the right to infringe is only a theoretical right and a right that could ever be exercised in reality.

The Tsilhqot'in decision of the Supreme Court of Canada included the following
[77]  To justify overriding the Aboriginal title-holding group’s wishes on the basis of the broader public good, the government must show: (1) that it discharged its procedural duty to consult and accommodate, (2) that its actions were backed by a compelling and substantial objective; and (3) that the governmental action is consistent with the Crown’s fiduciary obligation to the group: Sparrow.
What is important here is to understand what the three parts of this paragraph from the judgement mean.

(1) that it discharged its procedural duty to consult and accommodate

From the judgement
[79] The degree of consultation and accommodation required lies on a spectrum as discussed in Haida.  In general, the level of consultation and accommodation required is proportionate to the strength of the claim and to the seriousness of the adverse impact the contemplated governmental action would have on the claimed right.  “A dubious or peripheral claim may attract a mere duty of notice, while a stronger claim may attract more stringent duties” (para. 37).  The required level of consultation and accommodation is greatest where title has been established.  Where consultation or accommodation is found to be inadequate, the government decision can be suspended or quashed. , 

Aboriginal Title will require the highest degree of consultation and accommodation of the government.   In many ways a the highest level of consultation is not far short of getting agreement.   If the government is headed down the path of consultation means it has already received a No from the First Nation.  

Next, how do you accommodate Aboriginal Title?  Aboriginal Title will be the single most valuable asset First Nations will have.  It means that the government has to minimize their taking of Aboriginal Title land as far as is possible, ideally not using at all.

(2) that its actions were backed by a compelling and substantial objective

What is a compelling and substantive issue?   The Supreme Court of Canada looked back to the Delgamuukw decision

from the Delgamuukw judgement
[165] In the wake of Gladstone, the range of legislative objectives that can justify the infringement of aboriginal title is fairly broad. Most of these objectives can be traced to the reconciliation of the prior occupation of North America by aboriginal peoples with the assertion of Crown sovereignty, which entails the recognition that “distinctive aboriginal societies exist within, and are a part of, a broader social, political and economic community” (at para. 73). In my opinion, the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of aboriginal title.  Whether a particular measure or government act can be explained by reference to one of those objectives, however, is ultimately a question of fact that will have to be examined on a case-by-case basis
The court allows a broad range of reasons for the compelling and substantive issue that could justify the infringement.   What will be the question in court is what is meant by substantive and compelling.   A right of way for drive way is clearly not it.  

(3) that the governmental action is consistent with the Crown’s fiduciary obligation to the group: Sparrow

[85] The Crown’s fiduciary duty in the context of justification merits further discussion. The Crown’s underlying title in the land is held for the benefit of the Aboriginal group and constrained by the Crown’s fiduciary or trust obligation to the group.  This impacts the justification process in two ways.
[86] First, the Crown’s fiduciary duty means that the government must act in a way that respects the fact that Aboriginal title is a group interest that inheres in present and future generations. The beneficial interest in the land held by the Aboriginal group vests communally in the title-holding group.  This means that incursions on Aboriginal title cannot be justified if they would substantially deprive future generations of the benefit of the land.
[87] Second, the Crown’s fiduciary duty infuses an obligation of proportionality into the justification process.  Implicit in the Crown’s fiduciary duty to the Aboriginal group is the requirement that the incursion is necessary to achieve the government’s goal (rational connection); that the government go no further than necessary to achieve it (minimal impairment); and that the benefits that may be expected to flow from that goal are not outweighed by adverse effects on the Aboriginal interest (proportionality of impact).  The requirement of proportionality is inherent in the Delgamuukw process of reconciliation and was echoed in Haida’s insistence that the Crown’s duty to consult and accommodate at the claims stage “is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed” (para. 39).

Note here the sentence in [85] The Crown’s underlying title in the land is held for the benefit of the Aboriginal group and constrained by the Crown’s fiduciary or trust obligation to the group.   The underlying Crown interest in the land where there is Aboriginal Title is not intended to benefit the government or the private sector.   This line alone is a huge limitation on when the government could ever infringe Aboriginal Title.

When trying to infringe Aboriginal Title land the government has to put the best interests of the First Nation ahead of almost everything else.   Effectively the government trying to infringe has to at the same time vigorously work against the infringement on behalf of the First Nation.   If the government does not succeed in protecting the Aboriginal Land have they failed in their fiduciary obligation to the First Nation?

The next line to consider is in [86] This means that incursions on Aboriginal title cannot be justified if they would substantially deprive future generations of the benefit of the land.   This dramatically limits for what reasons the government could ever infringe Aboriginal Title.  How could you justify a mine or a hydro development?

For the reasons aboive I would argue that the government right to infringe Aboriginal Title is one that will realistically never be used because the restrictions on it are too difficult to meet the test. 

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