The Door Has a Tendency to Swing Shut: The Saga of Aboriginal Peoples\u27 Equality Claims

This paper tracks the history of Aboriginal peoples\u27 equality complaints against the state. From the time Aboriginal people started to bring discrimination complaints before the courts, there have been significant obstacles that have operated to effectively — and sometimes even explicitly — prevent Aboriginal peoples from advancing pressing discrimination complaints against governments. Although there have been changes made in the law over time to attempt to eliminate such barriers, what we see is a pattern where new obstacles crop up to replace the old ones. Over and over, Aboriginal peoples see the door to equality open up only to have swing it shut again. This history puts the relationship of Aboriginal people and the state under the microscope and tell us something important about where we find ourselves in terms of reconciliation between Aboriginal people and Canada. The paper ends by providing recommendations on what can be done to address the current obstacles facing Aboriginal equality claims

Searching for “Superchief” and Other Fictional Indians: A Narrative and Case Comment on R v Bernard

In R v Bernard, 2017 NBCA 48, the New Brunswick Court of Appeal upheld the lower courts’ reasoning that a Mìgmaw man living in the traditional Mìgmaq hunting territory of St. John, New Brunswick could not exercise his Aboriginal rights to hunt because he could not prove he descended from the particular subgroup of Mìgmaq who were at St. John at the time of contact with Europeans. In deciding so, the Court of Appeal rejected the argument that the Mìgmaq, as a nation, are the appropriate rights holders and ought to be the body deciding who can exercise the Mìgmaw right to hunt in the province. This argument was rejected based on the evidence of an expert historian who testified that Mìgmaq could not be a “nation” because they had a decentralized form of government and lacked a “Super Chief.” The case also exhibits undertones of floodgate fears of over-hunting as a consequence of finding the Mìgmaq nation to be the right-holders. This, however, ignores the role Mìgmaq laws and protocols will play in responsibly regulating Mìgmaq hunting and avoiding overuse of resources (not to mention the Crown’s ability to address conservation issues through the Sparrow justification framework). This article tells the story of the Bernard case and provides critical commentary on it

Ending Piecemeal Recognition of Indigenous Nationhood and Jurisdiction: Returning to RCAP’s Aboriginal Nation Recognition and Government Act

Most Indigenous groups in Canada are not self-governing. While the last two decades have seen an increase in laws and policies that provide some Indigenous groups greater control over their territories and citizens, overall these have been ineffective in achieving transformative change. What has transpired in Canada over the last twenty years can be characterized as ‘piecemeal recognition’—discrete recognition of Indigenous control here and there in a case, policy or statute—and implemented in a patchwork fashion. In 1996 the Royal Commission on Aboriginal Peoples report advanced a very reasonable proposal for national legislation recognizing the right of Indigenous peoples to organize themselves collectively and govern themselves in core areas of jurisdiction as they see fit. It also mandated the provision of adequate funding and resources for capacity building in order to ensure successful implementation. This paper argues that it is time for Canada to discard its piecemeal approach to self-government and return to RCAP’s proposal to implement national legislation modelled on the Recognition and Governance Act as one of the first of many steps in transforming the relationship between Canada and Indigenous peoples

NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union’ and Communications, Energy and Paperworkers Union of Canada v. Native Child and Family Services of Toronto

In NIL/TU,O and Native Child, the Supreme Court of Canada held that unions applying for certification to represent employees of Indigenous-run child and family agencies ought to be certified under provincial labour relations legislation. The majority in both cases applied a presumptive rule that labour relations are generally provincial matters. This presumption was not displaced by the fact that both agencies were Indigenous-run organizations. The Indigenous nature of the organizations, their clientele, staff, and governance, or their own preferences for labour regimes made no difference to the Court’s analysis. Held: Appeals Allowed. 1. The appeals should be allowed. Treating Indigenous peoples merely as subjects has, for too long, facilitated both federal and provincial government neglect of matters that are of fundamental importance to Indigenous nations and has failed to protect Indigenous communities against assimilative forces. In other words, the old approach has caused Indigenous communities harm. Nowhere is this perhaps more apparent than in the context of child welfare. The Supreme Court failed to be sensitive in these cases to the unique Indigenous context and the interplay of a number of constitutional principles, including treaty federalism, federalism, subsidiarity, the presumption of conformity with international law, substantive equality, reconciliation, and the honour of the Crown. Indigenous groups are governments in their own right, with their own law-making powers and responsibilities. The Canadian conception of federalism, read in harmony with other constitutional principles, is capable of accommodating this change. *The Indigenous Nations Court (INC) is not a real court and this is not an actual appeal

Breathing Life into Our Living Tree and Strengthening our Constitutional Roots: The Promise of the United Nations Declaration on the Rights of Indigenous Peoples Act

In 2015, the Truth and Reconciliation Commission of Canada (“TRC”) suggested that, despite over 30 years of interpretation in the courts, section 35 of the Constitution Act, 1982, which “recognizes and affirms” the Aboriginal and treaty rights of the Aboriginal peoples of Canada, is not achieving meaningful reconciliation. The TRC defined reconciliation as being about “establishing and maintaining a mutually respectful relationship between Aboriginal and non-Aboriginal peoples in this country.” According to the TRC, the “reconciliation vision that lies behind Section 35 should not be seen as a means to subjugate Aboriginal peoples to an absolute sovereign Crown,” implying this has been a problem with s 35 interpretation to date.To galvanize a more robust approach to s 35, the TRC called on governments throughout Canada to fully adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation. On June 21, 2021, the federal government took an important step towards its commitment to implement the TRC Calls to Action and the UN Declaration by passing into law, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples. By providing comprehensive details about the nature and content of Indigenous rights and states’ obligations in relation to them, the UN Declaration and the UN Declaration Act hold much potential to breathe new life into s 35 to achieve the robust interpretation and implementation the TRC envisioned.Part 1 of the paper explain how the UN Declaration applies to Canadian law, and how the federal UN Declaration Act affirms the Declaration’s status in Canadian law, as well as commits the federal government to future substantive implementation of the Declaration, including the review of existing laws and policies to ensure conformity with the Declaration. Crucially, the UN Declaration Act affirms the Declaration’s use by courts to interpret domestic law. This has already been happening, but the affirmation in the Act removes any lingering doubt that previously dogged courts’ application of the UN Declaration to Canadian law. The UN Declaration benefits from the presumption of conformity with international law, under the framework recently developed by the SCC in Quebec (Attorney General) v 9147-0732 Québec inc., because it is an instrument which both the Canadian executive and Parliament have affirmed their commitment to.Part 2 argues that in the case of s 35 of the Constitution Act, 1982, the UN Declaration, now buoyed by the UN Declaration Act, holds significant promise to address long-standing problems in the SCC’s approach to s 35 by filling the sparse s 35 ‘box’ with a detailed elaboration of Indigenous individual and collective rights, and concomitant government obligations. It also supplies key context, values and principles and specific provisions to overcome the long-lasting impacts the doctrine of discovery has had on our law, as well as situate Indigenous collective rights as universal fundamental human rights that all Indigenous groups in Canada are entitled to

Aboriginal Rights, Legislative Reconciliation and Constitutionalism

This paper sketches out the idea of ‘legislative reconciliation’ – governments in Canada using their legislative powers to recognize and protect the inherent rights of Indigenous peoples. Legislative reconciliation is needed because the existing approaches to the implementation of inherent rights—negotiation and constitutional litigation—have been insufficient on their own to bring about a mutually respectful relationship between Indigenous and non-Indigenous peoples. Despite the entrenchment of s 35, state governments have not seen themselves as having a role in its implementation in the same way they do for Charter rights. In particular, Canadian governments have not felt compelled to legislate to promote and protect inherent rights. This is in tension with constitutionalism, the idea that governments ought to live their constitutions by respecting and promoting constitutional rights. For too long, Indigenous peoples have not benefitted from similar respect and promotion of their inherent rights, and this has caused them significant harm.Parliament has only recently started to embrace legislative reconciliation by passing the Indigenous Languages Act and An Act respecting First Nations, Inuit and Métis children, youth and families (FNMICYF Act) in 2019. However, a constitutional reference by Quebec places such initiatives in jeopardy. The province argues that federal legislation recognizing and promoting inherent rights is an unlawful attempt at constitutional amendment if it is not consented to by the provinces or goes beyond the limited interpretation given to s 35 by the courts to date. These arguments deeply misconstrue the nature of inherent rights and the roles of courts and governments in interpreting them. Courts do not create these rights, nor do they have a monopoly in interpreting them. Governments, particularly elected lawmakers, have an important role to play in interpreting and implementing these rights as well, just like Charter rights.This paper explains the concept of legislative reconciliation and why it is needed and argues that, far from being unconstitutional, legislative reconciliation exemplifies the principle of constitutionalism, and ought to be robustly embraced by Parliament, as well as provincial and territorial legislatures, and encouraged by our courts

The Broad Implications of the First Nation Caring Society Decision: Dealing a Death-Blow to the Current System of Program Delivery On-Reserve & Clearing the Path to Self-Government

On January 26, 2016, the Canadian Human Rights Tribunal (the “Tribunal”) released a watershed decision in a complaint spearheaded by the First Nations Child and Family Caring Society of Canada, its Executive Director, Dr. Cindy Blackstock, and the Assembly of First Nations (the “Caring Society” decision). The complaint alleged that Canada, through its Department of Indigenous and Northern Affairs (“INAC” or the “Department”), discriminates against First Nations children and families in the provision of child welfare services on reserve. In its decision, the Tribunal found that INAC’s design, management and control of child welfare services on reserve, along with its funding formulas, cause a number of harms to First Nations children and families that amount to discrimination, most notably among these is the systemic underfunding of such services. Canada has decided not to appeal the decision. The decision is the first in Canada to begin to examine the problems and harms existing within the current system of program delivery in First Nations communities. These problems and harms are not unique to the delivery of child welfare on reserve, but extend to all core services including health, social welfare, assisted living, daycare, education, housing and infrastructure, policing and emergency services. In First Nations communities, all of these services, although delivered by First Nations themselves, are governed by a complex web of federal funding directives, policies and funding agreements, wherein the primary program delivery standard is ‘comparability’ with the provinces/territories services. The current system of program delivery on reserve has been variously described as “program devolution,” “self-management,” and “self-administration.” Unless referring to a specific feature of this system, I generally refer to all of it herein as the current system for program delivery on reserve, or “CSPD” for short. Over the years, the Auditor General of Canada has raised numerous concerns with CSPD. In 2011, the Auditor General went so far was to say that it “severely limit[s] the delivery of public services to First Nations communities and hinder[s] improvements in living conditions on reserves.” The CSPD, which has been in place for decades despite several calls for reform by the Auditor General and others, is so convoluted that it is almost impenetrable. But the Caring Society decision has shed light on some of it ugly features and, most importantly, arms First Nations with the necessary tools to finally dismantle this entirely unacceptable system. In this paper, I detail how CSPD has come to be, how it operates and how it has persisted over numerous decades despite several calls to implement self-government in its stead. Next, I shed a light on all of its ugly features by setting forth an inventory all of the problems and the harms it causes First Nations people. Systemic underfunding is but one among many of the serious harms caused by CSPD. Finally, I discuss how the Caring Society decision has discredited significant parts of CSPD and how the decision can be used to unravel the rest. I argue that the decision points us to the one true alternative to this unacceptable system — First Nations self-government — which is long overdue

Six Examples Applying the Meta-Principle Linguistic Method: Lessons for Indigenous Law Implementation

Building on Five Linguistic Methods for Revitalizing Indigenous Laws, this article explains and analyses six examples of implementation of the \u27meta-principle\u27 or \u27word-bundle\u27 linguistic method for Indigenous law revitalization. The method refers to using a word in an Indigenous language that conveys an overarching, normative principle of the Indigenous group, and is the most utilized form of the five linguistic methods to date. The examples span its use by judges, public governments as well as Indigenous governments, and these actors employ different methods for identifying and interpreting the meta-principles. The variations between them reveal four categories of approaches to identifying, interpreting and implementing metaprinciples: (1) inherent knowledge of decision-maker; (2) in-court evidence; (3) official ratification; and (4) advisory bodies. There are different benefits and challenges associated with each category, and there are several lessons we can take from studying them. These examples and the categories show us that communities and their governments have real options, and precedents, to not only begin to revive their laws, but also to put them into practice

Five Linguistic Methods for Revitalizing Indigenous Laws

Building on the ground-breaking work on the revitalization of Indigenous laws ongoing over the past decade, this article seeks to contribute to our understanding of how Indigenous languages can be used to recover Indigenous laws. It posits that there is not one single linguistic method, but at least five: 1) the ‘Meta-principle’ method; 2) the ‘Grammar as revealing worldview’ method; 3) the ‘Word-part’ method; 4) the ‘Word-clusters’ method; and 5) the ‘Place names’ method. Using the Mìgmaq language to illustrate, the article explains each method and provides examples of how they can be used to inform Indigenous law revitalization. The article also shows that one does not have to be a fluent, first-language speaker to engage with linguistic methods for Indigenous law revitalization, by highlighting the various published resources like dictionaries and lexicons, reference and teaching texts, atlases, and more, that can be harnessed to engage in this work. This makes engaging with the linguistic methods accessible to the many Indigenous peoples who, because of the impacts of colonialism, are only starting to re-learn their Indigenous language. This revelation should give greater confidence to the non-fluent that they too can play a role in the revitalization of both their language and laws