Constitution Section 35

Asper Centre Panel on Indigenous Child Welfare & Self-Governance

Asper Centre Constitutional Roundtable Presents a Panel on

Indigenous Child Welfare & Self-Governance

with Prof John Borrows (the Loveland Chair of Indigenous Law, UofT Law), Prof Maggie Blackhawk (NYU Law) & Sara Mainville (JFK Law LLP)

Moderated by Asper Centre ED, Cheryl Milne

Thursday, October 31, 2024 at 12:30pm – 2:00pm (in person or virtual)

Room J130, Jackman Law Building, Faculty of Law, University of Toronto

All are welcome * Light lunch will be provided * Registration Required

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Background

Over the past few years, both Canadian and American courts have decided cases that impact Indigenous Nations’ ability to care for Indigenous children. Both countries have histories and present realities of removing Indigenous children from Indigenous homes, thereby jeopardizing the safety of Indigenous children and undermining Indigenous Nations’ sovereignty and governance. With this context in mind, the recent Supreme Court of the United States Haaland v Brackeen decision, and the Supreme Court of Canada Attorney General of Québec, et al. v. Attorney General of Canada, et al decisions are of paramount importance to Indigenous sovereignty and safety. Both cases address federal legislation introduced to address the historic and ongoing harms caused by the apprehension of Indigenous children by settler governments. In both countries, these decisions also demonstrate how child welfare is closely connected to Indigenous assertions of and rights to self-government.

The Asper Centre Indigenous Rights Working Group is pleased to present a panel event to unpack the significant legal issues and potential future implications of these cases, with a focus on the Quebec Reference case and its meaning for the interpretation of Section 35 of the Constitution and Indigenous self-governance.

Panelists

Maggie Blackhawk (Fond du Lac Band of Lake Superior Ojibwe) is professor of law at NYU and a prize-winning scholar and teacher of federal Indian law, constitutional law, and legislation. Blackhawk was awarded the American Society for Legal History’s William Nelson Cromwell Article Prize and her research has been published or is forthcoming in the Harvard Law Review, Stanford Law Review, Yale Law Journal, Supreme Court Review, American Historical Review, Legislative Studies Quarterly, Journal of the Early Republic, and Journal of Politics. Much of her scholarship explores the relationship between law and power, with a particular emphasis on the ways that subordinated peoples leverage law to shift power to their communities—especially outside of rights and courts-based frameworks. Her recent projects have focused on the laws and legal histories of American colonialism and the central role of the American colonial project, including the resistance and advocacy of Native and other colonized peoples, in shaping the constitutional law and history of the United States.

Sara Mainville is a partner at JFK Law LLP and has been a member of the Ontario bar since 2005 and she is a member of the BC bar (2022) with specific matter approvals to practice in Nunavut and Quebec. Sara has a Management/Public Administration degree (Lethbridge) and a Bachelor of Laws from Queen’s University. She has a LLM from the University of Toronto and an Advanced Negotiations certificate from Harvard University, and a Certificate in Entertainment Law (Osgoode PD). In 2014, Sara was elected as Chief of Couchiching First Nation after the sudden death of her friend and mentor, Chief Chuck McPherson. Sara uses this experience as a former Chief to help leadership work past difficult issues, within Indigenous forms of dispute resolution, and walk the community through processes to encourage discourse and grassroots solutions to long-held problems. Sara has completed Advanced Negotiations training at Harvard University and dispute resolution, legislative drafting, and mediation training at professional institutes in order to advance her clients’ long held goals for self-determination and truer treaty partnerships in Canada. Sara is generally seen as a subject-matter expert about Crown-Indigenous relations, the United Nations Declaration on the Rights of Indigenous Peoples, Treaty 3, and Anishinaabe Inakonigewin. However, Sara sees herself as a life-long learner willing to meet in community, read voraciously, and listen intently to better understand Indigenous knowledge systems across Canada.

John Borrows B.A., M.A., J.D., LL.M. (Toronto), Ph.D. (Osgoode Hall Law School), LL.D. (Hons., Dalhousie, York, SFU, Queen’s & Law Society of Ontario), D.H.L, (Toronto), F.R.S.C., O.C., is the Loveland Chair in Indigenous Law at the University of Toronto Law School. His publications include, Recovering Canada; The Resurgence of Indigenous Law (Donald Smiley Award best book in Canadian Political Science, 2002), Canada’s Indigenous Constitution (Canadian Law and Society Best Book Award 2011), Drawing Out Law: A Spirit’s Guide (2010), Freedom and Indigenous Constitutionalism ((Donald Smiley Award best book in Canadian Political Science, 2016), The Right Relationship (with Michael Coyle, ed.), Resurgence and Reconciliation (with Michael Asch, Jim Tully, eds.), Law’s Indigenous Ethics (2020 Best subsequent Book Award from Native American and Indigenous Studies Association, 2020 W. Wes Pue Best book award from the Canadian Law and Society Association). He is the 2017 Killam Prize winner in Social Sciences and the 2019 Molson Prize Winner from the Canada Council for the Arts, the 2020 Governor General’s Innovation Award, and the 2021 Canadian Bar Association President’s Award winner.  He was appointed as an Officer of the Order of Canada in 2020. John is a member of the Chippewa of the Nawash First Nation in Ontario, Canada.

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An Introduction to the Duty to Consult

Posted on by Tal Schreier

by Annie Chan

Arising from the Honour of the Crown, the duty to consult is a central tool in the protection of Aboriginal rights and the promotion of Crown-Indigenous reconciliation in Canada. As summarized by Professor Kerry Wilkins, adjunct professor at the University of Toronto Faculty of Law, the “Crown has a duty to consult a given Indigenous community when it is contemplating conduct that to its knowledge might have an appreciable adverse impact on an Aboriginal or treaty right that [the] community has or credibly claims”. Despite a series of notable and high-profile cases, there remains significant ambiguity in the law surrounding this important duty.

On Friday, January 22, 2021, the Asper Centre’s Climate Justice student working group and the Indigenous Initiatives Office (IIO) at the Faculty of Law convened a panel discussion titled An Introduction to s.35 and the Duty to Consult, providing an opportunity for the law school community to learn about the current state of the duty to consult and engage with open questions surrounding the doctrine. The panel was moderated by Professor Kerry Wilkins who was joined by Joel Morales (Counsel at Olthuis Kleer Townshend LLP) and Candice Telfer (Acting Director of the Legal Services Branch in Ontario’s Ministry of Indigenous Affairs). Elder Constance Simmonds (Cree-Metis Knowledge Keeper and Elder-in-Residence at the Faculty of Law) opened and closed the panel with her thoughts and prayers. The student organizers of the event (Maddie Andrew-Gee, Yara Willox and Haleigh Ryan) drafted a Primer about the Duty to Consult, as background to the event, with additional recommended readings.

Professor Wilkins began the discussion with a brief overview of the law on the Duty to Consult, beginning with its first mention in R v Sparrow as a relevant and possibly necessary component to the Crown’s successful justification of any infringement of an Aboriginal right. The duty is triggered by 3 elements: 1) Crown knowledge (of the asserted or proven Aboriginal right); 2) Crown conduct (excluding legislative activity); and 3) potential for adverse impact (above the de minimis threshold). Once the duty has been triggered, its content and scope are proportionate to the preliminary assessment of the strength of the Indigenous community’s claim and the likely severity of the adverse impact.

This notion of a “preliminary assessment” gives rise to several questions. Assuming the Crown is responsible for conducting the assessment, do they have a duty to share the results with the Indigenous community and provide them with an opportunity to correct it? Is the assessment a constitutionally necessary part of the consultation exercise? Morales argued that “if there is going to be a preliminary assessment, the Indigenous group should have a say in what goes into that” particularly where there are sacred sites or interests being impacted that were previously undisclosed due to concerns arising from colonial practices. Telfer contended that the government should still be entitled to privilege for any legal advice they utilize as part of the assessment but agreed that Indigenous communities should be given an opportunity to “fill the gaps” where the Crown is missing information. Wilkins noted that the Supreme Court’s judgment in Beckman v Little Salmon/Carmacks First Nation [1] suggests that a formal preliminary assessment is not strictly necessary so long as the required level of consultation is ultimately discharged. Nevertheless, the panelists agreed that whether or not it is legally required, a collaborative and transparent assessment is in the interests of both parties as a means of “promoting engagement and negotiation between Indigenous communities and government decision-makers.”

Another practical issue that arises with the duty to consult is that while there are numerous instances in which such a duty may be triggered, Indigenous communities have historically and continue to lack resources to fully participate. Given this reality, to what extent does the Crown have a responsibility to facilitate Indigenous participation by providing funding or resources? In responding to this question, both panelists stressed the importance of meaningful Indigenous participation in consultation. For the Crown, providing funding is important not only from a legal perspective but also a policy one because “if a community can’t meaningfully engage in consultation, there are [legal and pragmatic] risks for the government in moving forward,” said Telfer. While noting that some government funding is available, Morales framed the issue of adequacy of funding in terms of the “friction” between processes that the Indigenous community believes to be necessary and those that the Crown is willing to fund. From a legal standpoint, Wilkins noted that there was no case law establishing a strict legal requirement for the Crown to provide funding but the SCC has appeared to take into account the presence or absence of funding in its overall appraisal of whether the Crown’s consultation was sufficient [2]. Elaborating on this point, Morales cited Saugeen First Nation v Ontario [3] where the Court held that “[the parties] should not have reasonably expected the First Nation to absorb all the consultation costs” where the “expense of the consultation arose out of the proponent’s desire to see the project through and the Crown’s desire to see it move ahead”.

The panel then addressed a further significant practical issue of ascertaining which rights-holders need to be consulted where there is controversy about who legitimately speaks for the community. Given that the tension was itself created by the government’s imposition of the Indian Act’s Band Council model on Indigenous communities’ traditional governing structures, Morales suggested that “[Indigenous communities] should be allowed to work it out [internally] before the consultation projects happen.” While this would inevitably create delays, Morales noted that “Indigenous communities have waited a long time to even be at the table” and “shouldn’t be seen to be holding up projects due to government structures and policies being imposed on them unilaterally”. While Telfer agreed that she would be uncomfortable with the government imposing a view as to the legitimate authority where the community itself is fractured, “on a pragmatic level, there are decisions the government needs to make […] with immediate and broad impacts where time may be a luxury”. In such circumstances, “we need to think about meaningful engagement across these divisions in order to move forward,” added Telfer. “One option the Crown has,” Wilkins suggested, “is to consult with all the different conflicting claimants to make sure it has the benefit of all points of view.” However, this may be complicated where one group refuses to participate if another group is consulted.

Ultimately, as Wilkins remarked in closing, in many aspects of the doctrine on the duty to consult “the Supreme Court of Canada has left itself and lower Courts with great flexibility to reach the result they want to reach in particular cases.” As a result, there remains significant inconsistency in the doctrine affecting its utility as a tool for reconciliation. Nevertheless, as Elder Constance Simmonds reminded us in closing, as human beings “we all have a stake in protecting the land and the water;” thus, “for future generations, these are really important conversations.”

A recording of the webinar is available here.

[1] 2010 SCC 53

[2] See Clyde River (Hamlet) v Petroleum Geo-Services Inc., 2017 SCC 40 and Chippewas of the Thames First Nation v Enbridge Pipelines Inc., 2017 SCC 41.

[3] 2017 ONSC 3456

Annie Chan is a 1L JD student at the Faculty of Law and is currently an Asper Centre work-study student.

 

Choose Your Battleground: Recapping the Beaver v Hill Panel Discussion

Posted on by Tal Schreier

 

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

Posted on by Tal Schreier

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.