Choose Your Battleground: Recapping the Beaver v Hill Panel Discussion

 

by Hannah Goddard-Rebstein and Arjun Gandhi

On Thursday, March 21st, the Asper Centre held a panel on Indigenous rights and family law, using the case of Beaver v Hill as a focal point for the discussion. The panel was convened by the Asper Centre’s Indigenous Rights student working group.  Professor Carol Rogerson moderated the discussion, and Joanna Radbord (Martha McCarthy & Co., and counsel to Ms Beaver), Jessica Orkin (Goldblatt Partners), Judith Rae (Olthuis Kleer Townshend) and Professor Kerry Wilkins participated as panellists. It is important to make it clear from the outset that no panellists were Haudenousaunee, meaning that discussion of Haudenosaunee law comes from their experiences working as lawyers and second hand knowledge.

Brittany Beaver and Ken Hill are Haudenosaunee parents to a nine-year-old son who have been litigating over the child support Mr. Hill must pay for several years. Mr. Hill, a very wealthy businessman, claims he has a constitutional right to have their family law dispute decided according to Haudenosaunee laws. His application was dismissed at trial, but in October 2018, the Ontario Court of Appeal granted him leave to pursue his constitutional claim.

Ms. Radbord began the discussion by bringing in the perspective of Ms. Beaver, whose personal experience is important to consider first and foremost. Ms. Radbord argued that the Ontario Court of Appeal (ONCA) decision effected an erasure of the lived reality of Indigenous women and children. She thought that focus on the best interests of the child involved had been lost, pointing out that the parties negotiated for two years under Ontario law before this claim was brought up, and it has the effect of making all orders Ms. Beaver receives interim as the constitutional case moves slowly through the court system. In addition, the court disregarded the collective interests of Six Nations people by allowing an unauthorized individual seeking to avoid child support guidelines, when this is a vital constitutional issue that demands that all governments be at the table, engaged in negotiation.

The panellists agreed that the facts of this case were not an ideal way to pursue an Aboriginal rights claim. Ms. Rae emphasized that something coming forward as a surprise at an individual level with no government or authority taking part is nobody’s ideal strategy, but it is something which can’t necessarily be prevented from happening. Ms. Orkin mentioned that Hill’s lack of involvement in the traditional community he is invoking matters strategically (both from the perspective of whether a court will view it positively and as an evidentiary concern). In addition, she pointed out that to suggest that his goals are to forward recognition of Indigenous rights is belied by what we can see on the record. Prof. Wilkins brought up that judges have taken a very jaundiced view of Mr. Hill’s presentation and are likely to be concerned that acknowledging the relevance of Haudenosaunee law here is giving him a get out of jail free card, meaning that this case has a chance of poisoning the ground in terms of recognition and enforcement of Indigenous law.

However, panellists also pointed out that Mr. Hill’s level of involvement in his community does not determine his claim. Ms. Orkin argued that the question which matters, if there is law that a court would recognize, is whether he is subject to that law, not whether he is active in his community; and that this is a question for the Six Nations community. Ms. Rae added that this is not about ethnic or cultural First Nations identity, it is a matter of political citizenship. How First Nations citizenship works is currently highly contested, and may start to mean more and come with more power and obligation going forwards. In addition, Ms. Rae pointed out that his status as an individual without collective backing does not mean he cannot raise an Aboriginal rights argument: as a fundamental principle, individuals who have rights should be able to raise them in certain circumstances.

Ms Rae argued that our current legal framework for determining Aboriginal rights generally, and especially in the context of self-governance issues is atrocious, as shown by the unreasonable requirements of the Van der Peet test. She pointed out that one contributing factor to this problem has been cases coming up through individuals. For example the Van der Peet test was first applied to harvesting rights, and then imported to self governance through Pamajewon, which dealt with bingo games on reserve. That case had the effect of closing the door firmly on self-governance issues through the courts, due to the bad facts and difficulty of providing evidence about regulating specifically “gambling” from pre-contact times. The risk with Beaver v Hill is that a negative outcome would similarly hold back other claims.

Several panellists also pointed out that Mr. Hill faces an evidentiary barrier in making his case. Ms. Orkin expressed doubts that the case would have the evidence needed, given that when she worked with the Haudenosaunee Confederacy, chiefs did not go to court, and took a position on the jurisdiction of Canadian law that is not cognizable to the courts. Prof. Wilkins added that the Haudenosaunee understand themselves to be sovereign, and take the position that Canadian law has no application to them. Ms. Rae pointed out that as the relevant parties have not come to court, we do not know what Haudenosaunee law is.

Overall, the panellists agreed that the facts of this case were troubling, both in respect of the situation in which it places Ms. Beaver and its broader legal implications. While lack of involvement in his community or standing as an individual are not fatal to Mr. Hill’s case, the evidence needed to make out the claim does not seem to be present. However, the positive takeaway emphasized by Prof. Wilkins was that the ONCA decision leaves the door open to a properly framed claim to self-governance rights.

Hannah Goddard-Rebstein and Arjun Gandhi are both 1L JD Candidates at the Faculty of Law and are members of the Asper Centre’s Indigenous Rights student working group this academic year.

Implementing UNDRIP: Opportunities and Challenges

By Catherine Ma

On October 22, 2018, the Faculty of Law’s Office of Indigenous Initiatives hosted Professor Brenda Gunn to discuss the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”). Her presentation primarily focused upon the opportunities and challenges related to implementing UNDRIP in Canada.

UNDRIP enshrines the individual and collective rights of Indigenous peoples in relation to culture, identity, language, education, employment, health, and other issues. These rights are the bare minimum rights of Indigenous peoples; in other words, states are free to recognize stronger rights than those articulated in UNDRIP. Nevertheless, UNDRIP is monumental document since Indigenous peoples directly participated in drafting its provisions. Its adoption signalled a recognition and protection of Indigenous peoples’ rights within the United Nations and international legal systems.

Professor Gunn endorsed Bill C-262 as a framework for implementing UNDRIP. This bill would state affirmatively that UNDRIP applies in Canada; require the federal government to ensure all domestic laws are compliant with UNDRIP, develop and implement a national action plan for achieving UNDRIP’s articles, and report annually to Parliament regarding its progress; as well as clarify that UNDRIP does not diminish or extinguish any §35(1) rights. Professor Gunn emphasized that a national action plan is essential to ensure that different Indigenous peoples can pursue their rights as they understand them. She further suggested that human rights commissions can have an “active role” in promoting UNDRIP and mediating between the Canadian state and Indigenous Peoples.

Professor Gunn asserted that the scope of §35(1) rights must be reconsidered; at a minimum, §35(1) rights must include the rights enshrined in UNDRIP. She reasoned that R v Van der Peet is no longer authoritative law, as §35(1) cannot only protect activities that are “central and integral to the distinctive community practiced continually since contact.” §35(1) must protect all practices, traditions, and customs that are connected sufficiently to the self-identity and self-preservation of Indigenous nations.

UNDRIP at the Asper Centre

The Asper Centre has a dedicated Indigenous Rights Student Working Group (“IRSWG”) that focuses on the constitutional dimension of Indigenous rights. This year, the IRSWG will analyze UNDRIP and Bill C-262 with the intent of drafting general recommendations and observations about actions that ought to be taken in order to implement UNDRIP. This project will examine how UNDRIP affects different legal and policy areas. The group’s other projects include drafting proposed legislation to exonerate Indigenous peoples who were convicted for practicing their ceremonies under past legal regimes; and examining Beaver v Hill for the §35(1) governance issues in relation to Haudenosaunee law and family law.

It will be fascinating to follow the IRSWG’s progress on these projects as the year unfolds.

Catherine Ma is a 3L JD Candidate at the Faculty of Law and was a student leader of the Asper Centre’s Indigenous Rights student working group in 2017-2018. 

Ktunaxa Nation: A Lost Opportunity

By Patrick Enright

 

Indigenous Religion and the Court: A Lost Opportunity to Revise Religious Freedom Under the Charter

Earlier this month, the Supreme Court of Canada delivered its much awaited freedom of religion decision in the case of Ktunaxa Nation Council v British Columbia. Put simply, we could have waited longer. The decision marks a lost opportunity for the Court to have revised its freedom of religion jurisprudence, and is an extraordinarily dismissive analysis for what stands as the first indigenous religion brought under the Charter.

The Ktunaxa Nation Council, the appellants in the case, challenged the BC government’s approval of a ski resort on what is believed to be their sacred territory called “Qat’muk.” It was alleged that, should any construction go forward on the land, the Ktunaxa’s religious rituals would be deprived of any spiritual significance, as the “Great Grizzly Spirit,” who infuses their traditions with meaning, would permanently flee the territory. The case therefore raised the novel issue of whether s 2(a) of the Charter covers so-called “sacred sites,” and if there is any role for government in preserving the spiritual traditions of religious practitioners.

The Court, however, side-stepped all of the difficult questions of the case to simply (and tersely) assert that s 2(a) does not protect the “object” of religious beliefs. As such, it does not protect the (believed) existence of Grizzly Bear Spirt. Full Stop.

On the fascinating question of whether religious practices are intimately connected to religious beliefs themselves? Nothing.

On the issue of whether the recent origin of a religious claim can affect the proportionality analysis on judicial review? Nothing.

On the matter of whether preserving a religious community is more pressing than an individual’s religious belief? Nothing.

On whether the building of a ski resort is a sufficiently pressing objective to override a constitutional right? Nothing.

Instead we were subjected to a mere four paragraphs of analysis, with the Court merely affirming that s 2(a) only covers “beliefs” and the “manifestation” of beliefs, rather than the beliefs themselves.

But this is a senseless distinction. For the Ktunaxa, the manifestation of their beliefs requires that Qat’muk remain undisturbed. There would simply be no point in practicing their faith if the spirit that animates these practices no longer is present. By way of analogy, imagine attending a Christian Mass with the knowledge that Yahweh is no longer listening, or that God has taken a sick day to watch football. There would, alas, be no point in attending such an empty ritual.

Similarly, for the Ktunaxa, their god has been effectively killed by the State’s action in this case; or, as one twitter user suggested, “Nietzsche would have been proud of this decision.”

By this, I do not mean to say that the Ktunaxa should have come out victorious on their appeal – indeed, I think the case was deeply problematic on the facts. But failing to at least find an infringement is to fail to grapple seriously with the intimate connection that indigenous peoples and indigenous religion has with land and land claims.

Only the concurring opinion seems to have understood this. Justice Moldaver’s concurring opinion – in contrast to the majority – is a deeply satisfying, cogent analysis that takes seriously the novelty and gravity of the Ktunaxa’s religious claims. Justice Moldaver’s opinion makes the rather obvious point that manifesting the Ktunaxa’s religious beliefs required that Qat’muk go undisturbed; that indigenous religion requires the preservation of sacred sites; that not all religious beliefs can be framed in terms of protestant religious practices; that the impact on the Ktunaxa’s beliefs is severe; and, ultimately, that the state’s objective in fostering a prosperous tourism market in the province is sufficiently important to uphold the Minister’s proposal.

This analysis is thoughtful. It is sound. And it is just.

As for the majority, the Court could have saved itself 115 unnecessary paragraphs, and hundreds of wasted sentences, by simply stamping the following two words onto their jurisprudential writ:

“Appeal Dismissed.”

Patrick Enright  is a 3L JD Candidate at the University of Toronto and a former Asper Centre Clinic student.

Ktunaxa case summary and further information available on the Supreme Court of Canada’s website here. For further reading on this case, please see University of Toronto Faculty of Law Professor Anna Su’s commentary: A Tale of Two Burdens and Patrick Enright’s previous summary of the Ktunaxa case in our 2017 Asper Centre Outlook Newsletter at page 12.