Keynote speech to the National Aboriginal Law Section of the Canadian Bar Association, Fortress Louisberg, Nova Scotia.


June 11, 2015

My dear fellow lawyers in the National Aboriginal Law Section of the Canadian Bar Association. Thank you to the organizers, and sponsors, who made it possible for us to meet here in historic Fortress Louisberg. This great stone monument is famous for being a complete failure.

Despite these stone defenses, the old feudal, undemocratic, colonial regime fell. A few years later the Royal Proclamation of 1763 happened, so 1763 is the beginning of my story tonight.

Fortress Louisberg could not prevent the great transfer of wealth and political power of 1763, when the country we now call Canada was created.

The Royal Proclamation stands for four things: democracy, the rule of law, compensation for veteran soldiers, and protection of the lands and hunting grounds of the aboriginal people.

Tonight I want to talk about the enduring importance of those words “hunting grounds”, and how that old-fashioned-sounding concept leads us straight to section 35 of the Constitution. And after that I will go on to talk about the modern constitutional protection of aboriginal lands, and what that means for the economic and environmental future of Canada

The Royal Proclamation was a document from the Age of Enlightenment.   It was written by a Whig (or Liberal) government in London, the decade before the American Declaration of Independence and almost a generation before the French Revolution. But it laid a foundation. The idea that colonists and aboriginal people would have rights – rights to land, rights to justice, rights to elected assemblies, that was a powerful idea, and it foreshadowed the democratic revolutions that rocked the 18th century world, which until then was strictly about monarchy and feudal institutions. All that happened, despite this impressive fortress where we are having dinner.

Being here in Fortress Louisberg, this failed attempt to resist change, reminds me of our current federal government. On June 26, 2014, 250 years after the Royal Proclamation, the Supreme Court of Canada signaled another great transfer of wealth, power, and political legitimacy, when aboriginal title was declared to Tsilhqhot’in territories, overruling 150 years of resistance by Canada and British Columbia. Tsilhqot’in happened, after decades of stonewalling by Canada, and the Harper government was powerless to stop it, standing by like an obsolete relic of the neo-colonial era, being swept away.

I am ahead of myself. Back to 1763. The new government of Canada was called Quebec, but it included land in what is now other provinces and large parts of what is now the United States. Eventually, the name of this new country was changed to Canada, boundaries were changed, powers were re-distributed. But 1763 is when Canada began, and it began with protection of “hunting grounds”.

Protection of “hunting grounds” is 18th century language for protection of ecosystems, or environmental protection. To have a meaningful hunting ground, there must be animals to hunt. Animals come from habitat. So it is a question for wildlife biology: What is the amount of habitat necessary that a population of animals can thrive and multiply and produce a surplus sufficiently large to support a meaningful hunt?

Canada is huge, but the landscape is delicate. For most of Canada, in 1763, the highest and best long-term sustainable use of the land was as a hunting ground. That may even be true today as well. Push those ecosystems too hard with industrial development, and the ecosystems fail.

From a lawyer’s perspective, if there is a right to “hunting grounds” there will be a question of fact: How much industry and settlement can the land support, without destroying the hunting grounds? The answer to that question requires expert evidence – mainly traditional knowledge and wildlife biologists.

A lawyer begins to visualize trials. Trials about the cumulative effect of industrial development on the hunting grounds. About the impact of industrial development on the customs, practices and traditions related to the hunting grounds. About whether the proposed settlement or industrial development breaks the cultural bond between the people and their hunting grounds.

250 years later, the fourth promise in the Royal Proclamation is still alive, and enforceable, because it has morphed into section 35, and it has become a powerful foundation for the economic advancement of aboriginal peoples, and for protection of the environment.

Today at lunch our speaker Manny Jules reminded us that history is about facts that can’t be proven, so he said we can all debate what really happened. So I am going to be careful and tell you only what I actually personally know about some recent history:

In 1980 I travelled to Ottawa with the late George Watts, who was Chairman of the Nuu-chah-nulth Tribal Council, to appear before the Joint Senate and House of Commons Committee on the Constitution. Prime Minister Pierre Trudeau wanted to patriate the constitution – but the early drafts said nothing about aboriginal people, and nothing about the Royal Proclamation of 1763. George Watts and I argued that the Schedule to the Constitution Act should include the Royal Proclamation, because it was just as much a part of the constitution as things like the Manitoba Act and Rupert’s Land Order, which were going to be included in the Schedule. Oddly, as things turned out, the Royal Proclamation ended up in Section 25, which still puzzles me. It was not added to the Schedule, but something better happened:

At that time, Pierre Trudeau wanted all-party support for constitutional change. So each party had its particular demands and conditions for support. The NDP under Ed Broadbent made it their condition for NDP support that an aboriginal rights clause be added.

Now, sometimes history is kind of random. Important things happen, kind of by accident. Here is an example:

The deal for NDP support was being hammered out between Trudeau’s main lieutenant at the time, Jean Chretien, and Ed Broadbent, together with some members of his NDP caucus, including Ian Waddell, Svend Robinson, and Jim Fulton. It was a small meeting in the Center Block on Parliament Hill. Things were moving quickly. The politicians were close to an agreement about the idea of an aboriginal rights clause, but nobody had written any text.

For my part, I happened to be in Ottawa on a different matter, that same day, and Ian Waddell talked to me about this.

I was a fussy lawyer, and not a politician, and I thought this was puzzling, to negotiate for a clause in theory and not have the text of the clause. So I sat down at a desk and right out of thin air, I typed out a little draft of something the politicians might use and handed it to Ian Waddell, who disappeared off to the meeting with it. Here are the words I typed, and you will recognize some of them:

“The aboriginal title and treaty rights of the aboriginal peoples of Canada, as they have been or may become defined by the Courts, are hereby recognized and affirmed, and can only be modified by constitutional amendment.”

That piece of paper still exists. Ian Waddell has it framed on his wall. It passed out of my hands, and I had no further involvement. It went through many drafts,. Lots of people were consulted, changes were made – thank goodness – and something that sounded quite similar appeared in the draft Constitution as section 33, (I think), and was passed in principle by the House of Commons in February of 1981.

Then, suddenly, the clause disappeared! Prime Minister Trudeau caved into pressure from the provinces and deleted it from the draft.

There was a huge political fight in the summer of 1981. The historic “Constitution Express” involving hundreds of aboriginal leaders descended on Ottawa, camping on the Parliament Hill lawn and occupying offices, demanding that section 35 be restored. Justice Thomas Berger spoke out, and put his job as a judge on the line. He took a political stance, and was forced to resign as a judge – a great loss to the Canadian judiciary. A premier’s conference was held in Edmonton, in November, 1981, with the result that section 35 was put back into the draft Constitution, with the addition of the word “existing”. Premier Lougheed of Alberta insisted on adding the word “existing”. The rest is history. The Queen came to Ottawa and signed the constitution on April 17, 1982.

So, we didn’t get the Royal Proclamation in the Schedule, it ended up in section 25, where it is not very useful. But we got Section 35.

Tonight I am talking about how three decades later, the three branches of section 35, aboriginal rights, treaty rights, and aboriginal title, converge with a basic ecological message. Almost all of Canada is now infused with a set of constitutionally-protected, science-based, aboriginally-controlled, environmental protections. These environmental laws spring from an independent source – not from sections 91 or 92 of the 1867 Constitution. They come from the connection between the aboriginal peoples and their traditional lands. These are now the strongest environmental laws in the world, right here in Canada, just waiting to be applied and enforced for the good of aboriginal people, and for the good of all Canadians.

The backdrop is that Canada and the provinces have been withdrawing from environmental protection over the last few years. The provinces don’t allocate enough funding to front line environmental and land use departments. The Harper government has systematically weakened environmental protection under federal statutes such as the Fisheries Act, the Species at Risk Act, the Navigable Waters Protection Act, and the Environmental Assessment Act. All of these statutes were basically gutted under Bills C-38 and C-45 – the Omnibus Budget Implementation Acts. These statutory amendments were radical changes to the settled expectations of Canadians in almost every aspect of environmental governance. In my view, it is to Canada’s shame, that there are no longer any meaningful federal statutory protections for the environment.

Filling the vacuum left by the retreat of Canada and the provinces are the aboriginal and treaty rights protected by section 35 of the 1982 Constitution.

And something else has happened. We currently enjoy an activist judiciary prepared to make tough decisions. On May 23rd the National Post called Chief Justice Beverley McLachlin the “Unofficial Leader of the Opposition”, and recounted the Supreme Court’s multiple decisions smacking down the federal Government. The Supreme Court of Canada is now positioned as the most progressive, activist, courageous high court in the common law world. For example, after the European Court of Justice, the US Supreme Court and the UK House of Lords all rejected doctor-assisted dying, the Supreme Court of Canada in Carter,[1] just three months ago, delivered a courageous decision, in favour of the compassionate relief of suffering, and a stunning rebuke to its former criminalization. The Supreme Court’s recent record includes striking down prostitution laws, protecting safe injection clinics, striking down mandatory minimum sentences, guaranteeing the right to strike, guaranteeing solicitor-client privilege, etc.

In Tsilhqot’in, the court overturned 150 years of settled expectations about who owns the “Crown lands” in British Columbia. This is a rare, once-in-a-century situation, where a high court is prepared to stare down a powerful government to protect fundamental values.

Each of the three branches of section 35 has a strong component of environmental protection. They converge at one central point – which is protection of the ecological viability of the land for future generations.

Here are five aspects to the convergence of the environmental content of each of the three branches of section 35:

  1. Practices, customs and traditions integral to the distinctive aboriginal culture on the land.
  2. Meaningful habitat protection
  3. Cumulative effects
  4. An ecological interpretation of aboriginal rights
  5. The inherent limit to aboriginal title

Practices, customs and traditions on the land are protected as aboriginal rights. When I started the Tsilhqot’in case in 1989, it was an aboriginal rights case, not an aboriginal title case. We didn’t even have the decisions in Sparrow or Van der Peet for guidance. But we relied on the idea that there is a broad category of “aboriginal rights” which are protected by the constitution.

  1. 31.        what 35(1) does is provide the constitutional framework through which the fact that aboriginals lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown. [2]

In Tsilhqot’in itself, the Courts have protected the aboriginal rights of the Tsilhqot’in people to hunt, trap, and gather, and also to capture wild horses, within an area larger than the area declared to be subject to aboriginal title. Similar to the protection of treaty rights, such aboriginal rights will be protected on a “meaningful” basis, meaning that there is comprehensive protection of enough habitat necessary to exercise the rights.

The Tsilhqot’in decision talks about the “economic fruits”[3] of the land and profiting from “economic development”[4]. The right to the “economic benefits of the land”[5].

Meaningful habitat protection in treaty lands. In 2005 the Mikisew Cree Nation, along with a large contingent of supporting aboriginal people, took Canada to Court on evidence that the incremental taking up of land was adverse to the continued exercise of the Mikisew hunting and trapping rights.   Canada and Alberta had argued that the Mikisew could hunt and trap “elsewhere”. But the Supreme Court of Canada said “location is important”.[6] At first I thought that sounded like the old real estate mantra: “location, location, location.” The Court upheld the right of a First Nation to protect a meaningful right to hunt within its traditional territory.

If the time comes that in the case of a particular Treaty 8 First Nation “no meaningful right to hunt” remains over its traditional territories, the significance of the oral promise that “the same means of earning a livelihood would continue after the treaty as existed before it” would clearly be in question, and a potential action for treaty infringement, including the demand for a Sparrow justification, would be a legitimate First Nation response.[7]

What is meant by protection of a meaningful right to hunt? It means that there must be a harvestable surplus of a sufficient number of game animals to meet the needs of the aboriginal group within their traditional territory. This means there cannot be destruction of habitat such that the viable and healthy population of animals is threatened.

It is a biological question – “What is the amount of natural habitat necessary to support a herd of animals, healthy enough to provide a sustainable surplus sufficient to meet the aboriginal community’s needs?”   That is what the Court will protect. In the environmental context, this means protection of the boreal forest from:

  • clear-cut logging,
  • road building,
  • seismic lines,
  • oil and gas pipelines,
  • fracking,
  • and most of all, from the utter destruction of the landscape caused by mining for bitumen – the tar sands.

No other law provides such comprehensive, science-and-evidence-based protection, as does this constitutional protection of a meaningful right to hunt. It is direct protection of habitat.

The Mikisew ruling also protects the habitat necessary for fur bearing animals, such as fisher, muskrat, marten, wolverine and lynx[8]. These are shy creatures who require large unspoiled territories to survive and multiply. Protection of their habitat, overlapping with protection of the large mammal habitat, is guaranteed to aboriginal nations under the Constitution, and is one of the strongest tools available within the legal system of any country for environmental protection.

Protection from the cumulative effects of industrial activity. My experience with this issue began working for the Beaver Lake Cree Nation. They are one of the aboriginal groups whose way of life is threatened by the vast destruction caused by tar sands developments. In challenging those developments the Beaver Lake Cree were faced with the problem that no individual project, by itself, was causing enough destruction to eliminate the meaningful exercise of their rights. Rather, it was necessary for the Beaver Lake Cree Nation to challenge in court a vast range of individual actions, based on their cumulative effects. In an application to strike the claim the Alberta Court of Appeal upheld the right of the Beaver Lake Cree Nation to advance a case based on the cumulative effect of industrial activity.[9] Similarly, the B.C. Court of Appeal in West Moberly has said that decision makers should “recognize an existing state of affairs, and to address the consequences of what may result from pursuit of” [development] in face of that. [10]

An ecological interpretation of aboriginal rights. The Supreme Court of Canada’s decision in Tsilhqot’in Nation, contains the following sentence:

“The fact that the aboriginal group was only about 400 people must be considered in the context of the carrying capacity of the land in determining whether regular use of definite tracts of land is made out.” [11]

The “carrying capacity” doctrine was introduced in evidence in this case by expert witness Dr. Mathis Wackernagle, founder of the Global Footprint Network, a leading measurement of environmental stress on the planet’s ecosystems. With this, the Supreme Court has adopted a scientific and ecological approach to the question of “occupation” by an aboriginal people.

The trend in Canadian law is to interpret aboriginal rights in light of their meaningful exercise, so that they are not merely sterile or formal rights, but reality-based and scientifically supported.

The inherent limit to what can be done on aboriginal title lands. In Delgamuukw, the Supreme Court of Canada departs from traditional common law rules regarding land. Under the common law, a land owner has unfettered power to commit waste, that is, to use and even destroy the land as the owner sees fit. A landowner can burn down his own house, cut down his own orchard, drain his own swamp, and mine his own bitumen. Statutes such as zoning laws have placed limits on what landowners may now do, but in a pure common law system, ownership is the power to destroy. This is not the case for aboriginal title.

The “inherent limit” passage from Delgamuukw:

128      Accordingly, in my view, lands subject to aboriginal title cannot be put to such uses as may be irreconcilable with the nature of the occupation of that land and the relationship that the particular group has had with the land which together have given rise to aboriginal title in the first place.

There will exist a special bond between the group and the land in question such that the land will be part of the definition of the group’s distinctive culture.  It seems to me that these elements of aboriginal title create an inherent limitation on the uses to which the land, over which such title exists, may be put.  For example, if occupation is established with reference to the use of the land as a hunting ground, then the group that successfully claims aboriginal title to that land may not use it in such a fashion as to destroy its value for such a use (e.g., by strip mining it).  …[12]

If an aboriginal nation wants to make that irreversible conversion, and bring their land into the commercial mainstream, and allow activities that would be prohibited by the inherent limit, the opportunity is created by the Royal Proclamation for a surrender. For example, if the nation wants a strip mine, there is a process for terminating the cultural connection to the land. An aboriginal community can solemnly meet, and formally express a broad consensus that the community wants this to happen. I compare that with the manner in which federal and provincial governments make irreversible decisions about the land base. Distant governments make decisions about the land, irreversible decisions, without any formal involvement of the whole population. It often happens without debate, or behind closed doors. Licences and permits to strip mine, to clear-cut ancient forests, to pollute pristine waterways, to construct hydro-electric dams, are all made by elected officials, but without the need to go back to the people. Irreversible decisions to convert land into a commodity, for industry or intensive settlement, affect all future generations, whether aboriginal or not. When it comes to irreversible decisions about the land, I actually prefer the process set out in the Royal Proclamation to the process under current federal and provincial law.

There are three types of rights protected by section 35: Aboriginal Title, Treaty Rights, and Aboriginal rights.

Under Aboriginal title: The aboriginal owners’ use of land cannot impair “a special bond between the group and the land in question”.

Under Treaty Rights: The law protects a meaningful right to hunt over the Aboriginal nation’s traditional territories, requiring vast areas to be protected as habitat.

Under Aboriginal Rights: The law protects the “practices, customs and traditions integral to the distinctive aboriginal culture”, which requires protection of rights to hunt, fish, trap and gather, thus requiring habitat protection on a broad scale.

Virtually the entire land area of Canada comes within one or two of these three categories of constitutionally protected rights. There are even a few places where all three types of s. 35 rights exist within one land area.

So each branch of section 35 – treaty rights, aboriginal rights, and aboriginal title, contains this basic concept: protection of the ecological viability of the land for future generations. In language from 1763 – protection of the hunting grounds. In modern language – protection of ecosystems.

Increasingly, the burden of protecting the environment in Canada has fallen on the shoulders of aboriginal people. These 600 or so small, mostly rural, First Nations who occupy portions of their ancient tribal territories, often disadvantaged economically and socially, are increasingly the people Canadians look to for environmental protection.

For example, last month a tiny community of Inuit at Clyde River on Baffin Island successfully stopped seismic testing that would have disturbed sea mammals that the community depends on for food.   Canada had approved the testing, but the Clyde River Inuit got the project cancelled, with the support of a broad base of Inuit, aboriginal and environmental groups.

Of course, the Harper government has noticed where their opposition is coming from. Consider the opposition to the Northern Gateway pipeline. Courageous aboriginal people turned out in the hundreds at the Joint Review Panel hearings to have their voices heard in opposition the Northern Gateway Pipeline. Then, in 2012 our current Finance Minister Joe Oliver called those same aboriginal people, those First Canadians, “radicals” and charged they were trying to “hijack” Canada’s review process with support from “foreign special interest groups.”

Grand Chief Stewart Phillip of B.C. said this about the proposed liquefied natural gas projects:

The economy of this province is being built on the destruction of the Northeast. The pipelines that are being contemplated by LNG will further destroy the North. We have a social responsibility, as human beings, as grandparents and parents, to lend our support to Treaty 8, to all of the people in the North that are fighting so valiantly to push back this agenda.

Canada’s aboriginal people have constitutionally protected rights to meaningful habitat protection, and to protection of their land-based cultural traditions, based on ecological and scientific principles, on a cumulative basis. There is an active and courageous judiciary in Canada, ready and willing to enforce these laws. These laws are capable of:

  • saving endangered species,
  • slowing the expansion of the tar sands,
  • protecting the great North American boreal forest,
  • curtailing pollution in three oceans,
  • protecting rivers, and
  • preserving the homelands of the aboriginal nations.

You, my colleagues, are practicing in an exciting time. It is a great privilege for us, as lawyers, to be able to have some part in this great cause of justice – the continuation of the work of the Royal Proclamation of 1763. It is hard to think of a time in history when lawyers been able to represent a dispossessed people within a receptive justice system, with a reasonable chance that they can help restore to them their lands, and their heritage. We live in that time, and it is an incredible privilege, to live in a country where our legal system is so resilient that we can achieve such sweeping justice legally, peacefully, and without violence.

But the situation for us, as lawyers in this field, is even more crucial, demanding, urgent and important. The world is facing catastrophic environmental challenges. Pollution, loss of biological diversity, over-consumption of resources, and climate change are the greatest challenges humanity has ever faced.

Most people feel powerless to do anything about it. You have the unique privilege and responsibility of actually having the power to change things. You and your clients have the benefit of unparalleled legal powers – the strongest environmental laws in the world. You and your clients can do something, with your guidance and skill. You can change things. The courts are ready. The aboriginal people are ready. The law is clear. Advancing s. 35 rights is the tool, I think it is the only tool in the current political climate, to save the homelands of the aboriginal peoples of Canada, to save the great North American boreal forest, to save those “hunting grounds”.

You can change the world.

[1] Carter v. Canada (Attorney General), 2015 SCC 5; https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14637/index.do.

[2] R. v. Van der Peet, [1996] 2 SCR 507, 1996 CanLII 216 (SCC) at paragraph 31.

[3] Paragraph 67, 94, 121.

[4] Paragraph 70.

[5] Paragraph 73.

[6] At paragraph 47.

[7] Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 SCR 388, 2005 SCC 69, at paragraph 48.

[8] Paragraph 44.

[9] Lameman v. Alberta, 2012 ABQB 195, upheld by Lameman v Alberta, 2013 ABCA 148. (David Rosenberg, counsel on appeal, Jack Woodward, counsel at trial).

[10] West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2011 BCCA 247 at paragraph 119.

[11] 2014 SCC 44, at paragraph 37, (David Rosenberg, QC, counsel for the Tsilhqot’in Nation and Chief Roger William, on appeal, with Jack Woodward, QC at trial.)

[12] Delgamuukw v. British Columbia, [1997] 3 SCR 1010, 1997 CanLII 302 (SCC), at paragraph 128.