Beyond Rights: The Nisga'a Final Agreement and the Challenges of Modern Treaty Relationships

Creating Legal Space for Animal-Indigenous Relationships

Reviewed by: Beyond Rights: The Nisga'a Final Agreement and the Challenges of Modern Treaty Relationships by Carole Blackburn Russel Lawrence Barsh (bio) Beyond Rights: The Nisga'a Final Agreement and the Challenges of Modern Treaty Relationships by Carole Blackburn University of British Columbia Press, 2021 the extensive revision and "patriation" of the Canadian constitution forty years ago was an opportunity for Indigenous Peoples to flex their political muscles at home and abroad. From marches in Ottawa to an outspoken "embassy" in London, Indigenous Peoples demanded the recognition of inherent aboriginal rights and full implementation of treaties in accordance with their original spirit and intent as founding documents of the legitimacy of the Crown in Canada. As a result, both aboriginal and treaty rights were broadly entrenched in the Constitution Act, 1982. The new constitution also recognized the possibility of new treaties settling territorial disputes with First Nations. In the United States, Congress not only extinguished the president's authority to make treaties with Indian tribes 150 years ago, but also asserted power to break treaties already made. In Canada, additional treaties with Indigenous Peoples are not only possible, but once made, they are constitutionalized. There was great public interest (and concern) in this opportunity a generation ago. Few modern treaties have actually been negotiated and approved in Canada, however, making Carole Blackburn's narrative of the Nisga'a Final Agreement (2000) especially important. The author had opportunities to observe the negotiations and the process of implementation and enjoyed access to many of the participants on the Nisga'a side of the table. I approached this book from the perspective of an advocate for Indigenous Peoples seeking lessons that can be learned from the Nisga'a. In the 1980s to 1990s, I participated in diplomacy on behalf of the Mi'kmaq Grand Council and helped organize tripartite "treaty clarification" discussions as a senior advisor to the Treaty Commissioner in Saskatchewan. I wrote [End Page 101] analyses on land-claims negotiations in the Americas for United Nations agencies and a volume of case studies, published by the International Labour Office, with my Pikani (Blackfoot) colleague Krisma Bastien. It is no secret that the promise of using modern treaties to resolve land claims in Canada has foundered, with few final agreements, and much of the caseload trapped somewhere in the pipeline. What can other Canadian First Nations learn from the Nisga'a experience about "getting to Yes," to borrow a cliché from the business world. Blackburn appropriately underscores that modern treaties (indeed all Indigenous political reconciliations with the state) are two-way streets that require confidence building and pragmatic baby steps and must be part of ongoing and unending relationships. Agreements are necessarily imperfect; but they may do a great deal of good if they result in some degree of formal recognition of Indigenous identity and genuine power-sharing with other state actors. Good agreements will lead eventually, in principle, to the goodwill to replace them with even better agreements. But acknowledging this reality, we are compelled to conclude that the entire Canadian project of modern treatymaking is doomed to fail. Since there is no detailed definition of "aboriginal and treaty rights" in the Constitution Act, 1982, negotiations with each First Nation begin effectively at zero, and leave the balance of negotiating power with the federal and provincial authorities. If one First Nation succeeds in achieving a deal, it raises or lowers the bar for others; while those with earlier agreements may feel cheated if any subsequent agreements are more generous. At the same time, state negotiators who regard agreements as an irrevocable erosion of state power have little incentive to make progress, leading to endless delay. Federal and provincial technocrats have no doubt also realized that scores of different jurisdictional and power-sharing agreements across the country is unmanageable and must be avoided, except perhaps in relatively unpopulated, Indigenous-majority regions of Canada where only a fraction of First Nations live. First Nations may have gained some modest leverage from S.C. 2021, c. 14, adopting the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as a source of law. Henceforth, the Supreme Court of...

The proposal to create a Northern Corridor that would allow for cross-country, multi-modal infrastructure development is an ambitious vision (Sulzenko and Fellows 2016; Standing Senate Committee 2017). This proposed infrastructure corridor would incorporate multiple uses, from pipelines to railways, roads, telecommunications, electricity infrastructure and more. Its geographic scale stretches continuously from coastal B.C. across Canada to the Atlantic coast, with spurs running northward to the Arctic Ocean through the Northwest Territories, Nunavut and via Manitoba to Hudson’s Bay. A critical foundation for its successful development will be the ability to appreciate and incorporate the rights of Indigenous peoples affected by the project (Wright 2020; Newman 2022). The goal of this research paper is to outline the law of Indigenous peoples’ land ownership rights, including proven and asserted title, Crown-Indigenous treaty relations and obligations and Indigenous land claims agreements, and to consider the implications for a large-scale infrastructure project like the Northern Corridor.1 The focus is on the legaland regulatory aspects of Indigenous peoples’ land rights within the non-Indigenous Canadian legal system.2 The research paper uses standard legal methods to assess the land ownership rights of Indigenous peoples, drawing on relevant constitutional and statutory provisions, leading cases and secondary literature. The paper proceeds with a brief overview of these distinct types of Indigenous land rights, then provides a more detailed account of the legal content of s. 35 constitutional Aboriginal title, historic and modern treaty rights. This includes discussion of government’s legal duty of consultation and accommodation, and the requirements for constitutionally justified limitation of these rights. Indigenous land ownership rights in reserve lands are also discussed. A series of case studies more fully illustrates the implications of these varied Indigenous land rights for a project like the Northern Corridor. Finally, the paper turns to the dynamic nature of Indigenous rights and the potential influence of the UNDRIP. The implications of Indigenous peoples’ land rights for the proposed Northern Corridor are extensive. While many of the legal obligations fall on the Crown, as represented by provincial, territorial and federal governments, industry proponents must also play a role. Project proponents engage directly with Indigenous land-rights holders and are crucial to the exchange of information, mitigation of project impacts and creation of benefits for Indigenous communities. Successful development of the Northern Corridor infrastructure project requires a partnered approach with affected Indigenous rights- holding communities. Portions of the proposed corridor traverse the traditional territories of Indigenous peoples over which Aboriginal title is claimed. Where Indigenous claimants demonstrate sufficient, exclusive use and occupation of the land prior to Crown claims of sovereignty, title will be established. The legal test for recognizing title is one that reflects both the common law and Aboriginal perspectives, and is sensitive to context. The geographic scope for successful Aboriginal title claims that overlap with the Northern Corridor is significant. Where Indigenous peoples hold title to the land, they are collectively entitled to exclusively enjoy the benefits of that land, and to decide on its uses. Governments or third parties seeking access to the land require consent from the title holders. In the period before title is established, governments authorizing projects like the Northern Corridor, that could negatively impact Aboriginal title, must consult with Indigenous peoples and, when appropriate, accommodate their interests. This is required to maintain the Honour of the Crown. While the legal duty falls on government, project proponents working directly with Indigenous peoples are an important part of the consultation and accommodation process. Governments do retain a legal ability to justifiably limit Aboriginal title. They can pursue projects in the public interest that are consistent with s. 35’s reconciliation purpose, if they meet the requirements of their unique obligations to and relationship with Aboriginal people (the fiduciary duty and Honour of the Crown). This means satisfying the procedural duty to consult and accommodate Aboriginal title holders, pursuing only limits on title that do not damage their long-term relationship with the land, as well as meeting a recently outlined requirement for proportionality. Proportionality means that limits on Aboriginal title must be necessary to achieve the public purpose and must be as minimal as possible, and that the overall public benefit must not be outweighed by negative impacts on title holders. Projects that go forward with participation and consent of Indigenous title holders will meet these requirements. There is also potential for the Northern Corridor to cross reserve lands. Where these remain subject to the Indian Act, one of the relevant statutory mechanisms for access must be used. These require consent from the band and federal government. For bands that have transitioned to management of their reserves under the First National Land Management Act (FNLMA), only consent of the band as set out in its Land Code is required. The Northern Corridor also crosses lands over which Indigenous people hold land rights under the historic “Numbered Treaties.” While the treaties appear to include formal surrenders of Aboriginal title (an interpretation that is contested), continued rights of use over traditional territories are critical elements of these constitutionally binding agreements. Although governments can “take up” surrendered lands for development, this right is subject to a duty to consult Indigenous parties and accommodate impacts on their treaty rights. Governments can justifiably infringe historic treaty rights. This can be done when a permissible objective is pursued in a way that meets government’s fiduciary duty and upholds the Honour of the Crown. The specific requirements can vary, but generally the test is more restrictive when non-commercial treaty rights are at stake and requires some form of priority to be given to these Aboriginal rights. The requirement for justification is triggered when treaty rights are infringed — when a group is deprived of a meaningful ability to exercise its treaty rights within its traditional territory. Recent developments suggest this threshold should be assessed looking to cumulative impacts and that a process for monitoring and addressing these is part of justified limits on these historic treaty rights. Finally, the Northern Corridor also intersects with lands covered by modern treaties. These agreements provide detailed guidance about the specific rights Indigenous parties enjoy, processes for consultation and co-management of the treaty lands as well as interactions between jurisdictional decisions under the treaty and by other levels of government. Courts have outlined a distinctive approach to the modern treaties that recognize their sophistication and the efforts to negotiate these modern governance frameworks to advance reconciliation. Courts would pay close attention to the relevant treaty terms and processes in any dispute over development of the Northern Corridor. Relatively minimal supervision of the modern treaty relationships should be expected from the courts, although the Honour of the Crown and the obligations it places on governments still apply. It is unclear whether justified infringements of modern treaty rights are possible, and whether a stricter constitutional standard would be required. Case studies of recent infrastructure and resource development projects show that while much of the law is clear, outstanding issues remain, and the practical application of the law can be challenging. The sufficiency of consultation can be in doubt on complex projects involving multiple Indigenous communities. Basic issues such as who to consult can emerge when there is overlap between traditional and Indian Act governance structures and both reserves and other land rights are involved. The applicability of Indigenous laws to traditional territories under claims of Aboriginal title and interactions between Indigenous law and jurisdiction and non-Indigenous law and government authority can also be unclear. Many modern projects proceed with the consent and participation of Indigenous peoples, for example, through benefit agreements. These agreements, because of their link to the underlying Aboriginal rights, can engage the Honour of the Crown and the duty to consult if subsequent developments negatively affect benefits under the agreements. In practice, meeting the legal obligations triggered by Indigenous land rights requires direct, good faith engagement with affected Indigenous communities. The best-case scenario is partnered development that proceeds with the consent of Indigenous rights holders. Current case law suggests that projects like the Northern Corridor might go ahead without full consensus, since there is no “veto” implicit in s. 35(1) Aboriginal rights. However, legal requirements for justified infringements, if possible, still require adequate consultation and accommodation of the rights of Indigenous peoples, and support only necessary, minimal limits on their rights. Overall benefits must outweigh negative impacts on Indigenous communities, and their ability to benefit directly from projects or be compensated for harms is generally part of justifying limits on their rights. On the ground, project proponents will be deeply involved in the relationship-building and engagement that is needed to support consensual development, or will meet the high bar for constitutional justification. Determining whether governments’ legal obligations ultimately have been met is done at a detailed, fact-specific level — not in the abstract. There are no leading cases that support constitutional justification of hypothetical, indeterminate public uses such as the proposed Northern Corridor. The law of Indigenous rights is constantly evolving. Over the lifespan of a project like the Northern Corridor, change would be certain. Canadian approval of the UNDRIP and recent federal and provincial legislation committing to bring Canadian law into compliance are important signals of future development. The UNDRIP embraces a model of Indigenous rights grounded in self-determination and its standard of “free, prior, informed consent” appears to reflect the ability of Indigenous peoples to make their own decisions about projects that impact their rights. The legal implications of the UNDRIP for s. 35 and Indigenous land rights in Canada remain to be seen. As with modern treaties and the FNLMA, it represents a resurgence in Indigenous peoples’ rights to play a direct role in governing their traditional lands and bringing their own laws to bear on developments that impact their lands and rights. Co-management and shared governance frameworks that integrate Indigenous rights holders will likely be key to successful future project development. For a proposal like the Northern Corridor, further study is required to fully appreciate the implications of these nascent developments and consider how they should be reflected in the project proposal.

Reviewed by: The Right Relationship: Reimagining the Implementation of Historical Treaties eds. by John Borrows and Michael Coyle Jill Doerfler The Right Relationship: Reimagining the Implementation of Historical Treaties. Edited by John Borrows and Michael Coyle. Toronto: University of Toronto Press, 2017. ix + 415 pp. Contributors, index. $39.99 paper. In The Right Relationship, John Borrows and Michael Coyle bring together an impressive slate of renowned scholars to consider the fraught treaty relationship(s) between First Nations and Canada. Despite the fact the Supreme Court of Canada has described treaties as "sacred" agreements, Canada has yet to create an effective manner to address disputes regarding the meaning(s) and contemporary effects of historical treaties. The contributors provide detailed examples of when, why, and how the relationship went wrong as well as a diverse array of perspectives and ideas regarding how Canada might today change its approach to treaties and First Nations. Rather than provide a singular answer to how the relationship between First Nations and Canada might be transformed, the editors and contributors delineate an array of approaches grounded in Indigenous and non-Indigenous law. Contributors were asked to "reimagine how Canada's legal and political structure could better serve the treaty relationship that forms an inextricable part of our national story" (4). The 1764 Treaty of Niagara served a common starting point for contributors to consider how disputes about treaties might be best resolved. Most contributors gathered together twice over the course of two years, resulting in a synergy rarely seen in edited collections. In the invaluable introduction, Borrows and Coyle lay plain four central questions of the volume: [End Page 99] What role should history and historical promises play in shaping modern treaty relationships? If we seek healthy treaty relationships, what should the role of the courts be in resolving disputes, and what is their role in relation to political and public dialogue? What role, if any, should be played by Indigenous values and legal traditions in informing treaty implementation? Should we look to other forums to implement treaties and resolve disputes? (5) The rest of the introduction is organized around those foundational questions, and Borrows and Coyle briefly outline the ways in which the contributors address these questions. Faculty seeking to assign individual chapters will find the introduction especially valuable. Likewise, the introduction guides and prepares readers for the book. While much of the dialogue in the United States has centered around treaty rights, the focus in this book is relationships, asserting that it is the underlying relationship that provides context and meaning for rights. The constructive, forward-thinking approaches presented in this book make it a useful read for all Canadians—elected officials, lawyers, educators, and engaged citizens—all who are grappling with how to improve the relationship between First Nations and Canada and want to be part of creating solutions. While the relationship between the United States and Tribal nations is not part of the national narrative in the same way as the Canada and First Nations relationship is there, the book is also valuable for Americans interested in bringing a similar conversation to the forefront as well as those studying international politics. This volume is an important contribution to Indigenous-settler relations. Jill Doerfler American Indian Studies University of Minnesota–Duluth Copyright © 2018 Center for Great Plains Studies, University of Nebraska–Lincoln

While cumulative effects to Indigenous lands and communities are a significant issue across Canada, little has been done within the cumulative effects literature to understand the role of governance in addressing such issues. We argue that attention to governance arrangements, particularly those involving Indigenous and non-Indigenous authorities, are in fact critical to cumulative effects management in Canada and other countries where Indigenous-government relations are important. To better understand this relationship, we draw on examples from the Yukon to explore the ways in which modern treaties have shaped co-governance approaches to cumulative effects in the territory. These examples demonstrate the gap between expectations established through modern treaties, and implementation of those expectations on the part of territorial and federal authorities. Key governance challenges are highlighted, which raise important questions for non-Indigenous authorities engaged in co-governance arrangements for addressing cumulative effects.

2 Honouring Modern Treaty Relationships: Intent and Implementation of Partnerships in Yukon

Honouring Modern Treaty Relationships:

This paper has two main objectives. First, it examines the ways in which the Waitangi Tribunal considers the notion of “time” (and its corollary “timelessness") in relation to the Treaty of Waitangi. The Tribunal has increasingly emphasised the timeless‐ness of the Treaty, its ability to transcend temporal notions of time, and the implications of this for the relationship between the Treaty partners, Maori and the Crown. Second, it compares these tendencies with contemporary Maori ideas of time, as they are presented in the modern Treaty claims process. It is argued that the Tribunal, especially in its more recent reports, has signalled a marked shift in its acknowledgment of Maori concepts of time. Its published reports from 1999 onwards show more appreciation not for only for Maori understandings of the Treaty relationship, but for Maori values and concepts which, by their articulation and inclusion in the hearing process, test orthodox and dominant assumptions regarding the nature of change over time. Some broader trends may also be observed. Since the 1980s, there have been numerous references to the Treaty and its principles in statutory law, Waitangi Tribunal reports, and Deeds of Settlement ratified by successive New Zealand governments. Furthermore, there has been increasing (but by no means universal) recognition of the Treaty as a “developing social contract”, rather than a static historical document, with much of the impetus for such an interpretation coming from findings and recommendations of the Waitangi Tribunal.

This chapter returns to the international frame, asking how treaties apply in cases of disruption to the international legal order — State succession — a topic addressed by the 1978 Vienna Convention on Succession of States in respect of Treaties (VCSST). The present state of affairs relating to treaty succession suggests that only some of the VCSST’s provisions can serve as a reliable guide to the current State of customary international law (e.g. Article 11’s continuation of all boundary regimes, Article 15’s ‘moving treaty boundaries’ rule). Others constitute progressive development of international law (e.g. Article 31 in cases of incorporation; Article 34 in cases of separation). In any case, modern treaty succession distinguishes not only among the different cases of State succession, such as merger or dismemberment, but also among specific categories of treaties that are subject to different rules or principles. It is therefore difficult to identify a generally applicable legal regime of treaty succession.