Michael (Mickey) Posluns, Ph.D., 25 September 2011

When I first began working with First Nations political organizations, a childhood friend who had become a rising star in the Ottawa public service told me, “Indian Affairs (DIAND) is the funny farm of the civil service.” Sadly, in the several decades since that conversation very little has changed. On the contrary the very qualities that won DIAND that award have, more recently, made Aboriginal land claims process, and particularly “specific claims” the Alice in Wonderland (AIW) of the Canadian Judicial System. It is this dubious quality, and particularly its significance for the judicial system that I want to share with reads of SLAW.

First, a word of background. Land claims are of two kinds: Comprehensive and Specific. Although the names were chosen by the government the idea that all land claims fall into these two categories is one of the few points shared by government officials and First Nations elders. Comprehensive claims are supposed to settle outstanding issues of First Nations that do not have treaties; and, in that sense they correspond to “Aboriginal rights” in section 35(1) of the Constitution Act, 1982. A Comprehensive claim that has resulted in a final agreement (as distinct from agreements in principle) is ratified by an Act of Parliament. Typically, the Agreement is an appendix to the ratifying Act. These are what are often referred to as “modern land claims agreements” and, under s. 35(3) they become constitutionally protected treaty rights. This ostensibly obvious point has, at times, been denied by Government, a feature to which I will return in my discussion of the Alice-in-Wonderland dimensions of Aboriginal land claims.

Specific claims, in contrast, arise in regard to unfulfilled treaty promises, primarily from treaties signed in the 19th and early 20th centuries. What is specific about these claims is that they allege non-fulfillment of a particular provision in an earlier treaty, though, generically, a modern land claim agreement could also give rise to a specific claim.

Given these definitions Aboriginal rights and treaty rights are two different, albeit related, bundles of rights. To slur them together is to obscure this important distinction. Lastly, the Supreme Court of Canada and First Nations elders have each consistently said that both bundles of rights are rights that belong to communities. Chief Justice Dickson addressed this point in Sparrow1, the first case to afford the Supreme Court the opportunity to “explore the promise” of s. 35, in the words of Dickson, C.J.

The Alice-in-Wonderland qualities run throughout the Government’s response to both Aboriginal rights and to treaty rights, i.e., to comprehensive claims and to specific claims.

I will address the Wonderland qualities of Comprehensive claims first, and in a more summary fashion. Very soon after the ratification of the first comprehensive land claim, The James Bay and Northern Quebec Settlement Agreement (JBNQA), Canada and Quebec set about ignoring the Agreement and defying its provisions. By 1980, the consequences of the government’s failure to honour the treaty became so far reaching that the Commons Indian Affairs Committee pressured the Minister of Indian Affairs, John Munro, into appointing a Task Force to investigate the non-implementation. The Tait Report stands to this day as a manual on dishonourable administration.

When I was working on a book on a second James Bay project proposed by Hydro-Quebec, damming the Great Whale River and displacing the northernmost Cree community (Whapmagoostui) and the southernmost Inuit community (Kuujjuurapik), in 1990, the Eeyou Istchee (Crees of Quebec) had eleven cases before either the Superior Court of Quebec or the Federal Court.

One of the more noteworthy of these cases, Namagoose v. Robinson, arose when the Federal Administrator, having insisted for some years, that s. 22 of the JBNQA required a federal environmental assessment of any proposal that affected federal areas of jurisdiction, e.g., navigable waterways, suddenly reversed himself. The Crees went to the Federal Court for a writ of mandamus compelling the Federal Administrator to establish an environmental assessment. Crown counsel, on behalf of the Administrator, argued that the treaty was not part of a statute and, hence, had not been ratified. (Presumably they were arguing that the appendix was not a part of the statute and did not count as a ratification). Mr. Justice Paul Rouleau described this and other arguments of Canada and Quebec as “ludicrous and incomprehensible.” ( R. v. Sparrow, [1990] 1 S.C.R. 1075 at 1103).