Who owns the minerals? A view on FN land & resource protection

This post was written in coordination with Michael Kennedy, a senior commercial lawyer in Halifax. It is an open letter intended as a response to the ongoing discourse concerning Aboriginal and Treaty rights in northwestern Ontario, and reacts specifically to issues covered in local Thunder Bay media and nationally. Natalie and Mr. Kennedy have travelled to that region, and continue to collaborate with respect to the unique opportunity faced by the First Nations of Ontario – and throughout the country – to continue to exercise the right to control and protect Canada’s natural resources. The issues facing communities in northwestern Ontario with respect to Treaty rights and resource protection are unique in some ways – yet have common ground and lessons to be shared with First Nations across the Canada.

We have read with interest the comments, articles and opinions associated with Kitchenuhmaykoosib Inninuwug (“KI”) and its attempts to protect its resources and people, from the time KI leaders were jailed for being found in contempt of court, up to their recent decisions with respect to the development of their traditional territories. It is our opinion that the ongoing rhetoric associated with KI and Canada’s First Nations generally is often fraught with, and/or received with prejudiced and/or uninformed views, rendering the discussions unproductive and immobilized by ulterior motives. This persistent hindrance to what could be otherwise productive, forward-thinking discourse is due to the large and ever-growing gulf of misunderstanding which exists between First Nations and the Canadian public on many of these issues today.

First of all, we would point out that our comments below are limited to Treaty 9, its history, and the legal background associated with its various provisions.

Use of the word “cede” in the Treaty, which seems to be a focal point to those who wish to enforce the provisions of the Treaty against the First Nations, raises numerous issues with respect to the Treaty itself.  This particular provision of the Treaty and indeed the Treaty in its entirety may be shown to be of no effect whatsoever.  In other words, many suggest that there are very strong arguments, legal and otherwise, which stand in the way of the enforcement of the provisions of Treaty 9 as it applies to the rights of the First Nations.

One issue which is the subject of considerable debate today is with respect to minerals. The Treaty is devoid of the word “minerals.”  Although some may view use of the word “mining” as synonymous, at law these are two substantially different terms.  “Mining” refers solely to the activity of extracting minerals, while “minerals” refers to the actual rights to those minerals and the profit derived from their sale.

At common law and also as indicated in the Crown grant legislation, it is clear that the Crown when granting lands does not include “minerals” unless specifically included in the grant. How can the Crown then argue that it received the grant (or ceding) of the “minerals” from the First Nations through Treaty 9 when in fact the Crown argues that this was a Treaty between two separate nations and accepts the position that the Crown does not grant minerals unless the term “minerals” is specifically stated?  Why then was this intentionally not included in the draft?  This omission raises substantial questions, particularly in light of the push to develop mining within Treaty 9, which of course includes the Ring of Fire.

One may then argue, due to the extension of the rights of First Nations in the most recent cases, that in fact the First Nations have a valid argument that they have title to the minerals and where they did not “cede” their rights through the Treaty with respect to these minerals included in the lands purportedly conveyed to the Crown.

Overall, viewed through a modern lens, the Treaty 9 provisions, the history of its signing, the lack of understanding of its terms by First Nations at the time of signing, the question of whether the terms of the Treaty were properly interpreted to the First Nations, the issue of whether their culture and language could possibly articulate and reconcile the wording and effect of the Treaty, the total failure to pay adequate compensation then or over time, the lack of any independent advice provided to the signatories in an effective manner and in terms which could be understood, the basic inequality in bargaining positions, and other circumstances may in fact lead one to the conclusion that the Treaty itself is not enforceable whatsoever.  Also, it should be noted that after the last adhesion of Treaty 9 was signed and for a considerable period afterward, the First Nations in Canada were effectively stopped from claiming any rights through the legal system associated with the Treaty or otherwise.

In short, the First Nations did not knowingly or willingly ‘cede’ or give anything to the Crown.  On the other hand, the Crown got everything they wanted through the use of the Treaty document which they prepared.

Even if we get by the arguments as outlined above, there are other substantial issues associated with the Treaty which may make portions of it unenforceable in the manner in which the Crown has operated for years.

So if the Treaty is in place (as it seems to be now), and if minerals were in fact included, the so-called “harvesting” clause allows for the First Nations to carry on their usual vocations on their traditional lands excepting only such tracks as may be taken up by the Crown from time to time for settlement, mining, lumbering, trading, or other purposes.  It may seem clear to the casual reader of the Treaty that in fact the Crown retains the right to take up such of the traditional lands of the First Nations for these specific uses.

The contrary argument to this is of course that, if the Treaty is enforceable, only upon expropriation by the Crown of these lands for these specific issues may the Crown then enjoy the uses as stated.  In other words, a reasonable explanation of this clause is that the First Nations were paid for the Crown’s right to expropriate these lands in the future, as no one at the time understood what portions of these traditional lands would be taken for any of these issues.  If all was taken at the time, then clearly the payments were inappropriate.  It could be argued that all that the Crown received was an ‘option’ to take these traditional lands for the uses specified and upon appropriate compensation to be paid at the time of the taking. As you are aware, in any expropriation process, compensation must be paid to those who have the rights over the lands.  This does not seem to have been the practice of the Crown in the past and, in the view of some of those within Treaty 9 and elsewhere, this is a debt due to the First Nations.  This amount is substantial and based upon a reasonable interpretation of the terms of the Treaty.

The foregoing are only some of the arguments and positions which have been held by the First Nations and many of these are yet to be advanced for a variety of reasons.  This does not mean that these arguments are not legitimate and won’t be used in the future.

As Canadians, we received the rights entrenched in the Constitution under the Charter of Rights and Freedoms.  There was a similar provision placed in the Constitution in favour of the First Nations that recognized all of their rights, which had historically accrued to and in favour of the First Nations.  That specific provision is now the most litigated portion of the Constitution or, for that matter, any other area of the law, and has been since the early 1990s.  Most recently, the Supreme Court of Canada has recognized a dramatic expansion of the rights of Aboriginal Peoples in Canada with respect to their traditional lands.  This decision, which was decided in June of this year, is only beginning to play out across the country and will have substantial impact on the ability of First Nations to protect and defend these expanded rights.

The implications associated with the advancement of those arguments outlined above are extremely far reaching for all parties. In recognition of this, in many cases the parties have agreed to a consultation and accommodation process supported by the provisions of the Constitution and the rulings of the Court. This should not be viewed in any manner as a diminishment of the rights of First Nations for these rights are clear and continue to be advanced. Based upon the strength of these rights, the bargaining position of the First Nations has increased dramatically.

Those who choose to criticize KI should perhaps bear in mind that KI is supported by substantive rights, and, as such the Crown and others in Canada are obligated to respect and acknowledge that these rights exist.  In today’s world, to accept the very limiting words which are used in the Treaties and in other arrangements with First Nations (which are suspect in and of themselves) simply promotes a misunderstanding and a lack of respect for the rights of others.  Today, all of the Court procedures and wranglings in the KI Platinex matter, would, in our view, have entirely different results from just a short time ago.

We would say to all of the detractors of the rights of First Nations, catch up to today’s reality and cease the shallow and harmful vitriol.  What we all have to realize is that the ground upon which our systems and ideas have been built is shifting dramatically and will continue to do so in a much more accelerated fashion in the near future.

Michael Kennedy and Natalie Clifford, Lawyers
Halifax, Nova Scotia

Contact Natalie at 902.240.4080 or by email at natalie@cslegal.ca.

Federal Court has N.S. Band Reconsider its own Decision

What’s Next for Self-Governance and First Nation Band autonomy? It isn’t Completely Clear.

A look at the context, facts and potential implications of the federal court decision with respect to Cheryl Maloney v. Shubenacadie Band 2014 FC 129.

Summary

Cheryl Maloney, a member of the Shubenacadie Band (the “Band”), contracted with the Band for licences to fish a quota, which had been granted to the band by the federal government, and which was to be distributed through the band’s discretion. When Ms. Maloney was left out of the Band’s subsequent contracting decisions with respect to a third party and licences – she asked the court for a judicial review of the Band’s decision. The federal court did not overturn the Band’s decision, nor did it offer Ms. Maloney any financial remedies – but found that given that her livelihood was affected by the decision, she had a right to a higher level of procedural fairness. The decision was sent back to the Band for reconsideration, and implementation of a fairer process, in which Ms. Maloney would be more involved with the decision-making process.

The federal court’s decision to reach into decision-making powers, which had been allotted to a Band without material restrictions, touches on the broader issue of a Band’s freedom to self-govern, and potentially widens the grey area through which a court may interrupt the body’s autonomy.

For First Nations Bands, this case sends a message to be more careful when making decisions, and to consider what level of procedural fairness is owed to Band members, or other interested parties. For Band members and others who contract with First Nations Bands, this case may strengthen rights to be involved in the otherwise internal decision-making processes.

The Case 

The Right to Grant Licences

In 2005 the Shubenacadie Band entered into an agreement with the Federal Department of Fisheries and Oceans to take on a certain number of fishing licenses, under the authority of section 4 of the Aboriginal Communal Fishing Licences Regulations, SOR/93-332. The right for First Nations to take part in a communal fishery to earn a moderate living, or assign an interest to do so, is recognized thanks to the Supreme Court of Canada decision of R v. Marshall, [1999] 3 SCR 456 [Marshall].

For the licences issued under these Regulations, the Band is allocated quota. Quota refers to the amount of a certain fish that is permitted to be caught under the entire fishery – a portion of which is then allocated to each individual licence. Quota is calculated considering the number of licences granted – balancing profitability with the overall concern of conservation. Pursuant to the Regulations, the Band, as a designated “aboriginal organization” was given the authority by the Minister, to allocate licences. The Minister left it to the Band to designate the individuals and vessels authorized to fish under the licences.

Over the years, the Band created its own policies and business deals with respect to its allocated licences.

Cheryl Maloney’s Contract for Quota

Cheryl Maloney, a Shubenacadie Band Member, successfully took out a loan to finance a fishing boat, and was fishing the Band’s entire quota in 2009, 2010 and 2012, partnering with another licensee for 2011.

In 2012, the Band exercised its authority to allocate licences again, entering into an agreement with a non-aboriginal fishing enterprise, which agreed to pay the Band the shore price (less fishing costs) in exchange for the Band’s snow crab fishing quote for 2013 and 2014.

This decision of the Band triggered Ms. Maloney’s application to the federal court, in which she asked for the court to review the Band’s decision, and delve into whether it had authority to allocate its fishing licence and quota to a non-Aboriginal fishing enterprise – to the exclusion of a similarly-situated fishing enterprise, led by a Band member.

What makes the Band Council’s decision a subject of review by the Federal Court?

The court undertook a careful consideration of whether the Band, as a decision-making body acting on a regulatory grant of power, was in fact subject to judicial review by the federal court; and undertook a secondary analysis as to the nature of the decision – whether it was a decision of a public nature (which can be judicially reviewed) versus one of a private nature (which cannot).

The decision reviews case law which has shown that some, yet not all decisions of a First Nation Band, are subject to judicial review. In this situation, much of the case law pertaining to grants of power made pursuant to the Indian Act were found to be not directly applicable – yet helpful when used in the analogy – as this grant of power was made pursuant to the Regulations of the Fisheries Act.  Ultimately the court found that the decision was one of the Band council, under the power of a grant of authority provided by regulation – and therefore subject to judicial review.

Despite the First Nation’s assertion that its relationship with Ms. Maloney was purely contractual and therefore private/not subject to judicial review, the court found it to be of a sufficiently public matter, and therefore subject to review.

Was Ms. Maloney treated fairly?

The second part of the analysis was to determine whether Ms. Maloney was entitled to any level of involvement in the decision-making process, and/or notice, etc., throughout the process. In other words, what rights did Ms. Maloney have to be kept abreast, and maybe even partake in, the band’s decision?

In determining what level of procedural fairness (on a scale from minimal to great) the court considered, among other factors, that the decision had implications on Ms. Maloney’s livelihood – raising the bar for procedural fairness owed. The importance of her livelihood as a factor in this analysis was not lessened by the fact that she had another source of income. The level of fairness owed to Ms. Maloney was elevated by the fact that it had been represented by the Band that she would have access to the communal fishery for a certain period; and because she relied on the contract for financing of her boat – a fact which was known to the Band. Other facts surrounding the understanding between Ms. Maloney and the band also contributed to the elevated level of procedural fairness owed.

Ultimately, it was found that Ms. Maloney’s rights to procedural fairness were violated by the Band’s decision-making process. The decision was put back to the band to be re-determined, with the opportunity to be afforded to Ms. Maloney (and the other party involved) to submit proposals and have a discourse with the Band about its concerns about her financial performance.

What does this mean for First Nations governments?

The application of a Federal Court decision, with respect to band governance, has national effects. This means that a federal court decision regarding a Band in British Columbia, could potentially have a direct influence on an issue in Nova Scotia – and vice versa. The decision also, naturally affects other Bands in this region.  The court’s decision to reach into the governance structure, and direct the First Nation’s decision-making abilities could have vast consequences for the perceived and desired autonomy and self-governance enjoyed by First Nations across the country. While the Federal Court did not dictate the proper outcome to be reached in this decision, it did send a strong message by disagreeing with the procedure used to reach the ultimate decision, forcing the First Nation go back to the drawing board.

Contact Natalie at 902.240.4080 or by email at natalie@cslegal.ca.

Aboriginal Claims: An issue that affects all Canadians

On an ongoing basis many First Nation communities in Canada, including those within the Atlantic region, exercise their rights to research, establish, negotiate and ultimately claim proper compensation from the Government of Canada with respect to Specific Land Claims.

What are Aboriginal Land Claims?

In Canada, Aboriginal Land Claims are executed in two different forms: Specific Claims and Comprehensive Claims.

Comprehensive Claims deal with unfinished business related to treaty-making; in other words, relevant subject matter which was not originally dealt with and therefore requires a new agreement.

Specific Claims deal with unhonoured promises made by the Government of Canada ( (and previously, the British Crown) to First Nations through treaty-making or otherwise; or where a First Nation objects to the way the government has mishandled assets which are considered to be owned or controlled by that First Nation (for example, the resources of the land in dispute). When a claim is established by the First Nation, the government is then to negotiate with the First Nation to reach settlements which honour the government’s obligations. This process can involve remedial actions which affect Provincial and Territorial governments as well.

What does this mean for you? 

Successful Specific Claims may entitle First Nations to compensation. If you are a member of a First Nation which has reached a successful conclusion to a Specific Claim, you may be entitled to compensation.

If you own or otherwise reside on land in Nova Scotia, that property potentially could be the subject of a Specific Claim.

The Role of the Federal Government

On behalf of the British Crown and its own predecessors, the current Government of Canada is responsible for receiving Specific Claims and working with First Nations to right past wrongs.

The government-issued Specific Claims Policy and Process Guide provides the framework approach for First Nations to draw up, submit, and seek compensation for their Specific Claims. The Government of Canada is responsible for contributing funding for the First Nations’ research and claims submission, responding to claims, negotiating with First Nations, as well as providing an independent Tribunal to make decisions on claims which are not resolved during the negotiation process.

Recently, substantial cuts to the Specific Claims process in Canada have caused concern for Treaty and Aboriginal Rights Research Centres and for individual First Nations with ongoing and planned claims. You can read more about this and the potential impact in this APTN article.

Positive Developments for First Nations at the Tribunal Level

Amidst the Government of Canada’s substantial cuts to the Specific Claims process, the government itself has been the target of a serious reprimand from the Specific Claims Tribunal with respect to its dealings with First Nations claimants.

Specific Claims can take years of research (through archival documents, in the community, etc.), many hours of legal work (hashing out the actual grounds for the claim), and much dedication from the First Nations claimants. The claims are sometimes then met with a drawn-out negotiation process. Should a solution not be reached, the Specific Claims Tribunal is available to provide independent adjudication. This last step has recently rendered a surprisingly delightful decision, at least for First Nations looking to proceed to the Tribunal.

In his decision regarding a claim from the Aundeck Omni Kaning (AOK) First Nation in January 2014, Judge Patrick Smith of the Specific Claims Tribunal criticized the current federal administration for its unfair approach when responding to First Nations’ claims.

In his decision, Justice Smith outlined a number of useful points regarding the case law with respect to negotiating with First Nations. He reviewed the government’s responsibility to negotiate in good faith with First Nations. At paragraph 90 of his decision, Justice Smith found that this obligation meant that the government could not be inflexible, because “ […] otherwise they cannot be considered negotiations. Inflexibility restricts any meaningful discussion and undermines, nullifies and contaminates the process with unfairness.”  At paragraph 89 he strongly criticized the government for consistently responding to a certain kind of Specific Claim in a way that is “paternalistic, self-serving, arbitrary and disrespectful of First Nations.”

You can read Justice Smith’s decision regarding the AOK First Nation claim here.

Despite the financial cuts and the Government of Canada’s recent treatment of the Specific Claims process – First Nations will continue to seek justice. This is a live issue for all Canadians.

Contact Natalie Clifford at 902-240-4080 or by email at natalie@cslegal.ca.