Jesse Baker June 4, 2016 Environmental Law Centre Pro Bono Students Canada

Aboriginal Law and the Right to a Healthy Environment: A Literature Review

Introduction

The 1973 Declaration of the United Nations Conference on the Human

Environment recognized the right to a healthy environment in international law 34 years 1

before the General Assembly adopted the United Nations Declaration on the Rights of

indigenous Peoples. Canada has yet to recognize the right to a healthy environment in 2

its laws or meaningfully protect Indigenous rights (recognized as “Aboriginal rights” in

Canadian common law under section 35 of theConstitution Act, 1982). Several authors 3

have argued that the protection of Aboriginal rights depends on and facilitates a right to

a healthy environment and can only be meaningfully protected through this recognition

by adjudicators and policymakers alike. This paper will review pertinent legal and policy

issues in the literature and how various themes support the argument that Aboriginal

rights depend on and facilitate a healthy environment. In terms of legal issues, it

discusses injunctions, resource management, Aboriginal title, self­government,

Indigenous law, and the right to a healthy environmental incidental to Aboriginal and

1 United Nations Environment Programme (UNEP), UN Doc A/Conf. 48/14/Rev.1 (1973) 1, online: UNEP <http://www.unep.org/documents.multilingual/default.asp?documentid=97&articleid=1503>. 2 United Nations General Assembly, United Nations Declaration on the Rights of Indigenous Peoples: resolution / adopted by the General Assembly, 2 October 2007, A/RES/61/295, online: United Nations <http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf>. 3 George Lloyd­Smith, “The Relationship between Environmental Rights and Aboriginal Rights: A Balance and Synergistic Approach” (2014) East Coast Environmental Law [unpublished], online: <http://www.ecelaw.ca/environmental­rights­and­aboriginal­rights­placement­paper­april­2014.html>.

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treaty rights. On the policy side, this paper discusses the recognition of Indigenous law 4

and expanded Aboriginal rights, Indigenous perspectives in project approvals,

reconciliation and self­determination, and self­government and title in modern land claim

agreements.

Legal Issues

Injunction Proceedings

The law of injunctions often serves to weaken the protection of Aboriginal rights

and the environment. In their paper, Rachel Ariss and John Cutfeet study injunction 5

proceedings in response to protests against a drill site set up on the traditional territory

of the Kitchenuhmaykoosib Inninuwug (KI) without their permission. Like other

Indigenous peoples, KI have struggled to have their law acknowledged and respected,

as they were in these protests and subsequent legal proceedings. Looking at two

decisions in the injunction proceedings, they argue that the first expanded the scope of

injunctive relief for First Nations, recognizing KI’s perspective on their connection to the

land and the risk of harm to Aboriginal rights from this connection. By contrast, the 6

second decision narrowed the scope for relief, closing space to KI perspectives and

discounting the risk of harm from the resource activity. The Court of Appeal criticized

4 Aboriginal law refers to the recognition of a unique system of laws relating to Indigenous people within the Canadian common law system, through mechanisms like Aboriginal rights. Indigenous law, on the other hand, refers to the distinct legal traditions of Indigenous communities. 5 Rachel Ariss and John Cutfeet, “Mining, Consultaiton, Reconciliation and Law”, online: (2011) 10:1 Indigenous LJ 1 <http://ilj.law.utoronto.ca/volume­10­issue­1­2011>. 6 Ibid at 23­24, quoting the statement in Delgamuukw v British Columbia, [1997] 3 SCR 1010 that Indigenous perspectives on Aboriginal rights must be given equal weight as the common law perspective.

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the second decision for discounting Aboriginal law principles and relying on the common

law in issuing an injunction. 7

Looking at decisions in land disputes, Ryan Newell identifies a positive turn 8

towards a rule of law that is more inclusive of Indigenous legal perspectives. He

welcomes Frontenac Ventures’ conception of the rule of law that only justifies an

injunction when a court has made every effort to encourage consultation, negotiation,

accommodation and reconciliation. For him, this conception counterbalances the 9

disproportionate strength of private party interests in injunction proceedings, so that 10

Indigenous parties are more likely to receive a just remedy.

In summary, Newell’s call for the incorporation of Indigenous perspectives into

Canadian common law to protect Aboriginal rights and produce just results mirrors that

of Aris and Cutfeet. Their analysis of injunctions suggests that justice and Aboriginal

rights depend on and facilitate a healthy environment. Harm faced by KI implicated

Aboriginal rights and the environment and the recognition of Indigenous perspectives in

the law of injunctions helped in the goal to protect a healthy environment. Others have 11

7 Ibid at 23­24. 8 Ryan Newell, “Only One Law: Indigenous Land Disputes and the Contested Nature of the Rule of Law”, online: (2012) 11:1 Indigenous LJ 41 <http://ilj.law.utoronto.ca/sites/ilj.law.utoronto.ca/files/media/ILJ%20vol%2011%20to%20post%20b.47­78.pdf>. 9 Ibid at 63. 10 Ibid at 64, quoting the acknowledgment in Haida Nation v British Columbia (Minister of Forests), [2004] 3 SCR 511 [Haida] that “the balance of convenience test [for injunctions] tips the scales in favour of protecting jobs...Aboriginal interests tend to ‘lose’.” 11 For analysis of other injunction proceedings discounting of Indigenous law approaches, see: Sari Graben, “Resourceful Impacts: Harm and Valuation of the Sacred” (2014) 64:1 UTLJ 64; Grant Mayeda, “Access to Justice: The Impact of Injunctions, Contempt of Court Proceedings, and Cost Awards on Environmental Protestors and First Nations” (2010) 6 McGill JSDLP 143; David R. Boyd, “Elements of an Effective Environmental Bill of Rights” (2015) 27 J Env L & Prac 201.

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argued that Aboriginal law requires a unique approach to injunctions given the

connection between Aboriginal rights and the environment. 12

Right to Manage Resources

An article by Emily Walter, R. Michael M’Gonigle and Celeste McKay looks at the

pacific salmon management system as a structural infringement of an Aboriginal right to

manage resources. They apply the R v Van der Peet test to define the scope of the 13 14

right as “the right to participate in and regulate salmon fishing activities for those stocks

which the claiming First Nation traditionally harvested and managed.” They highlight 15

the significance of fisheries stewardship that was integrated into pre­contact Indigenous

cultures in the watersheds of the North Pacific. The requirement that a right reflect the 16

distinctive culture of the claimant group is said to be achievable through evidence that

stewardship largely defined the attributes of an Indigenous culture and varied

substantially between groups. Evidence of continuity is seen in modern practice

reflecting traditional resource management, including co­management with government.

For extinguishment, regulations and laws of general application are found to not 17

evince the requisite “clear and plain” intent. Having established an Aboriginal right to 18

12 Heather McLeod­Kilmurray, “Proceeding With (Pre)Caution: Environmental Principles as Interpretive Tools in Applications For Pre­trial Injunctions” (2009) 32 Dalhousie LJ 295. 13 Emily Walter, R. Michael M’Gonigle and Celeste McKay, “Fishing Around the Law: The Pacific Salmon Management System as a “Structural Infringement” of Aboriginal Rights”, online: (2000) 45 McGill LJ 263 <http://lawjournal.mcgill.ca/userfiles/other/5944322­45.Walter.pdf>. 14 [1996] 2 SCR 507 [Van der Peet], focusing on a practice, custom or tradition that existed before contact with Europeans, has continuity to the present day and is an integral, central or significant part of the distinctive culture. 15 Supra note 13 at 268. 16 Ibid at 280, citing practices, customs, and traditions related to species management and ensuring adequate harvest and sustainability of stocks, which were more than incidental to harvest. 17 Ibid at 281. 18 Ibid at 284, conceding that it is not entirely clear whether similar conclusions in R v Sparrow, [1990] 1 SCR 1075 about harvest rights are directly applicable to a self­government right.

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traditional management, the article demonstrates how the government system

structurally infringes the right by promoting industrial fleets that are incompatible with its

exercise. Community based management is called for to retain culturally significant 19

fisheries management and end infringement while providing ecological benefits to

Indigenous and non­Indigenous interests. 20

In summary, by using the Supreme Court’s Van der Peet test to prove an

Aboriginal right to manage resources, the three authors offer a convincing approach to a

healthy environment in Aboriginal law. The protection of such a right under section 35

would force government to justify the existence of any system to manage resources that

is incompatible with its exercise, and perhaps even individual resource project

approvals. Any other activity negatively affecting resources within the scope of the right,

without the approval of the right holder, would also be incompatible with the exercise of

the management right and thus an infringement. Such an Aboriginal right to manage

resource would effectively provide Indigenous community members with a negative right

to a healthy environment vis­a­vis governments, industry, and other parties. The only

issue then would be the breadth of the test applied to justify such infringements. 21

19 Ibid at 297. 20 Ibid at 304. 21 Collins and Murtha, infra note 52 at 27, reason that government has a constitutional duty to accommodate a viable management system as the preferred means of exercising the right and could not justify any imposition that does not minimally impair the right. This appears to reject the expansion of the Sparrow justification test in Delgamuukw. See note 53 and Coyle, infra note 42, on the existence of a fiduciary duty to prevent harm to Indigenous people.

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Aboriginal Title

In Delgamuukw v British Columbia, the Supreme Court defined Aboriginal title 22

as a communally held, exclusive right to the use and possession of land, including the

right to decide what uses can be made of it. Using the Tsilhqot’in Nation and its laws as

a case study, Alan Hanna develops a process for applying Indigenous laws to the 23

Delgamuukw test to improve accessibility and the likelihood of success for title

claimants. For him, conceiving of Aboriginal title at common law requires 24

understanding Indigenous society and recognizing the meshwork of systems, including

Indigenous law, that allow it to function. Otherwise, onerous obstacles may be created

for groups attempting to prove elements of theDelgamuukw test. Hanna proposes the 25

Tsilhqot’in “round” ­ a system of sustainable resource use through traditional knowledge

­ as evidence of legal jurisdiction over the territory. “Making the round” is an example of

Indigenous law applied over time that Hanna cites as proving Aboriginal title. His

definition of Aboriginal title according to Indigenous law conforms with the principle that

common law and Indigenous perspectives should be given equal weight. Such 26

application of Indigenous laws would lead to more recognition of Aboriginal title and

more management of the land’s resources.

22 [1997] 3 SCR 1010 [Delgamuukw]. 23 Alan Hanna, “Making the Round: Aboriginal Title in the Common Law from a Tsilhqot’in Legal Perspective”, online: (2014) 45:3 Ottawa L Rev 365 <https://commonlaw.uottawa.ca/ottawa­law­review/sites/commonlaw.uottawa.ca.ottawa­law­review/files/1_­_rdo_45.3_int.pdf>. 24 His starting proposition, ibid at 367­268, is that the Delgamuukw test (exclusive occupation at the time the Crown asserted sovereignty and continuity) and inconsistent definition (ranging notionally from territoriality to specific sites of physical occupation) makes a claim near impossible to succeed. 25 Ibid at 369­370. For example, the definition of Aboriginal title based on well­defined, regularly used areas of intense occupation in Tsilhqot’in Nation v British Columbia, 2012 BCCA 285 failed to recognize the interconnectedness of natural systems and healthy environment the Tsilhqot’in are obliged to uphold. 26 Ibid at 370­371. See Delgamuukw, quoting Van der Peet.

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In summary, the doctrine of Aboriginal title is advantageous in terms of a healthy

environment, as it gives communities the exclusive right to decide the use of their land.

This amounts to a right to manage resources, and thus to a right to a healthy

environment in the same sense as above. It may also permit the recognition of

Indigenous laws, as well as their exercise in making resource management decisions

(discussed below). While proving Aboriginal title has been difficult and the infringement

justification test broad, Tsilhqot’in Nation v British Columbia and Marshall III indicate 27 28

a greater judicial willingness to declare title and protect Indigenous land interests,

making it a vehicle for environmental protection.

Right to Self­Government

While the Court in Delgamuukw avoided the issue of self­government that had

been raised, Dalton argues that it acknowledged the inherent right of Aboriginal

self­government (and resource management) by affirming that title lands are held, and

decisions about them made, communally. She posits that communal rights imply

self­government to regulate land use, which Williamson J. also concluded inCampbell 29

v British Columbia (Attorney General). Both agree that unwritten constitutional 30

principles from imperial policy recognize an inherent right to self­government. 31

27 2014 SCC 44, [2014] 2 S.C.R. 256 [Tsilhqot’in], the first time a court formally declared Aboriginal title. 28 R v Marshall; R v Bernard, 2005 SCC 43 [Marshall III] where LeBel J., concurring, challenged the strict Delgamuukw test, noting that the focus on occupation to prove possession is imbued with Western notions of land use and ignores Indigenous social and cultural practices that may reflect the significance of the land to the group seeking title. 29 Jennifer E. Dalton, “Aboriginal Self­Determination in Canada: Protections Afforded by the Judiciary and Government”, (2006) 21 Can J L & Soc 11 at 20. 30 [2000] 4 CNLR 1 (BCSC) [Campbell]. 31 Supra note 29 at 22 and note 30, arguing that the treaty process demonstrates that imperial policy respected First Nations’ inherent rights including self­government, establishing formal relations with them as with sovereign states. See note 54.

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Peter Hutchins, Carol Hilling and David Schulze agree that an inherent Aboriginal

right to self­government is found outside the Constitution Act, 1867. Canvassing 32

reasons of the Court of Appeal in Delgamuukw, they argue that the majority failed to

address whether there was an inherent right to self­government not derived from the

British Parliament like the Act. Accordingly, the majority seems to have taken for

granted that the Aboriginal right to self­government was extinguished by the Act’s

division of powers between the federal and provincial governments. The authors cite 33

persuasive authority that its preamble incorporates pre­existing rules so that sources of

Canada’s constitutional law are found elsewhere. The Royal Proclamation of 1763 is 34

one source held to be constitutional in nature and Alain Lafontaine is cited as arguing

that it recognizes the exercise of a form of inherent self­government right. The authors 35

argue that the Constitution should be interpreted in light of this recognition by the

Proclamation.

Professor Brad Morse argues that the Van der Peet test makes it nearly 36

impossible to prove an inherent Aboriginal right to self­government. Morse says thatR 37

v Pamajewon was an opportunity to clarify the status of self­government as it was the 38

32 Peter W. Hutchins, Carol Hilling and David Schulze, “The Aboriginal Right to Self­Government and the Canadian Constitution: The Ghost in the Machine”, (1995) 29:2 UBC L Rev 251 at 252. 33 Ibid at 281. 34 Ibid at 272. 35 Ibid at 273, arguing that the Proclamation recognizes independent Indigenous decision­making involving the power to decide whether or not to surrender territory by way of treaty and to enter military or other agreements. Lambert J.A. referred to this element of external relations in Delgamuukw while characterizing the claim of a right to self­government. 36 Supra note 14. 37 Brad Morse, “Permafrost Rights: Aboriginal Self­Government and the Supreme Court in R. v. Pamajewon”, online: (1997) 42 McGill LJ 1011 at 1035 <http://lawjournal.mcgill.ca/userfiles/other/4794134­42.Morse.pdf>. 38 [1996] 2 SCR 821 [Pamajewon].

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first Supreme Court case in which an inherent right to self­government was the central

ground for appeal. Applying Van der Peet, the Court characterized the claim as a right

to participate in and regulate gambling activities on the First Nation’s reserve lands,

rejecting the appellants’ framing as a right to self­government as excessively general. 39

Morse finds that this typical approach to Aboriginal rights is narrowly activity­based and

effectively forecloses inherent self­government rights protection. 40

Michael Coyle argues that the use of the Van der Peet test is inappropriate for

analyzing claims likes self­government. According to him, its application risks permitting

the destruction of distinct cultures that section 35 is meant to protect by “freezing”

integral Indigenous activities and ignoring evolution necessary for contemporary

survival. He argues that the resultant vulnerability justifies an expansion of the 41

fiduciary duty that the Crown has been found to owe Indigenous people under section

35 to require that it create space for the expression of Indigenous cultures through

self­government and otherwise. 42

In summary, these articles illustrate that there is much uncertainty about the legal

status of an inherent Aboriginal right to self­government. In the single Supreme Court

decision dedicated to the issue, high­stakes gambling and a very general claim made

for an unfortunate test case and failed the “unfortunate"Van der Peettest. However, the

39 Ibid at 1029­1030. By contrast, in Campbell, the power of self­government that the court recognized was set out in treaty and thus was less general than the claim in Pamajewon. 40 Dalton, supra note 29 at 21, suggests the Supreme Court showed a willingness to consider self­regulation in the future. Michael Coyle, infra note 41 at 866, argues that dismissing the protection of self­government rights on the basis of a claim’s level of generality is contrary to a purposive interpretation of section 35. 41 Michael Coyle, “Loyalty and Distinctiveness: A New Approach to the Crown’s Fiduciary Duty Toward Aboriginal Peoples” (2003) 40 Alta L Rev 841 at 842­846. 42 Ibid at 857­859, arguing that to impose a fiduciary duty it suffices that the beneficiary has a legal or practical interest the other party should have defended.

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much more recent decision in Campbell suggests that a more narrowly characterized

claim can succeed. What is more certain is that Aboriginal title gives communities the

exclusive right to decide the use of their land, and such decisions must involve a form of

self­government. Any judicial recognition of self­government would have to include the

right manage resources because of Indigenous communities’ important connection to

the land, and thus the right to a healthy environment in the accompanying sense.

Indigenous Law and the Environment

Jessica Clogg et al. explore Indigenous law­based approaches to environmental

management and how they can be recognized through Aboriginal rights to facilitate a

healthy environment. Like authors above, they show how Canadian common law can

recognize Indigenous peoples’ exercise of their own laws in connection with Aboriginal

title (including resource management) or self­government rights. They explore case 43

studies of Indigenous peoples that have enforced their traditional laws to address

contemporary challenges to their respective territories from resource development. The

Gitanyow Lax’yip proactively applied Indigenous legal principles like Gwelx ye’enst to 44

develop a strategic plan applicable to all land and resource decisions within their

traditional territory. The Tsleil­Waututh Nation combined legal principles, traditional 45

knowledge, and community engagement with scientific evidence to review the Kinder

Morgan Trans Mountain Expansion proposal. Their holistic environmental assessment

approach went beyond the scope of a government process to consider cumulative

43 Jessica Clogg et al., “Indigenous Legal Traditions and the Future of Environmental Governance in Canada” (2016) 29 J Env L & Prac 227 at 233. 44 Clogg et. al., ibid 43 at 236, define this principle as “ultimate responsibility to ‘hold, protect and pass on the land in a sustainable manner from generation to generation’.” 45 Ibid at 236.

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cultural, spiritual, and economic impacts and the precautionary principle. For the 46

authors, such applications and revitalization of Indigenous law have major implications

for resource development and environmental management in a post Tsilhqot’in world.

Brenda Gunn argues that Indigenous laws will lead to better protection of their 47

lands. After reasoning that the liberal basis of common law legal rights confines

Aboriginal rights and has permitted the destruction of lands, she claims that they must 48

instead be based on Indigenous practices and traditions rooted in ecological

sustainability. She credits their laws with containing intergenerational solutions to 49

balance the rights of land and people and their incorporation with remedying

contemporary environmental problems affecting their lands. 50

In summary, both of these articles agree that Indigenous laws should be

recognized in Canadian common law through Aboriginal rights to facilitate a healthy

environment. These approaches have major implications for ensuring healthy

environments using tools like land­use planning and environmental assessment.

Indigenous laws contain solutions to environmental problems that balance the rights of

present and future generations of people and the environment itself. They can be

recognized in Canadian common law as necessarily incidental to the right of Aboriginal

title or self­government, and provide Indigenous community members with a negative

46 Ibid at 248­249. 47 Brenda Gunn, “Protecting Indigenous Peoples’ Lands: Making Room for the Application of Indigenous Peoples’ Laws Within the Canadian Legal System” (2007) 6 Indigenous LJ 31. 48 Ibid at 47­48, arguing that the Crown is able to infringe Aboriginal title and Aboriginal rights are not more robust because, in liberal theory, the state’s role is to balance rights to ensure that every individual has “equal” opportunity to pursue the “good life”. Thus, cultural perspectives on land and resources are not reflected. 49 Ibid at 48. Indigenous peoples have already found ways to incorporate specific Indigenous laws and legal principles into the Canadian legal system. Supra notes 45 and 46. 50 Ibid at 51­52.

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right to a healthy environment in the same ways. Furthermore, since Indigenous laws

are law, they bind Indigenous people and provide community members with a right to 51

a healthy environment vis­a­vis other members and the community itself.

Aboriginal Law and a Positive Right to a Healthy Environment

Lynda Collins and Meghan Murtha argue that treaty and Aboriginal harvesting 52

rights depend on, and must necessarily include an implicit right to, a healthy

environment. They note the unique relationship between Indigenous communities and

their lands and the documented prevalence of disproportionate environmental harm that

they face, which may trigger a fiduciary duty. While such a duty would provide a 53

positive right to a healthy environment, Collins and Murtha believe that basic principles

of treaty interpretation provide the strongest foundation. The principle that a treaty is to

be interpreted as it would have been understood by Indigenous people at the time of

signing compels them to conclude that treaty rights to harvest resources encompass a

right to a healthy environment. They cite case law to indicate courts’ broad 54

interpretation of treaty rights despite limitation clauses, recognizing a duty to assess 55

specific environmental impacts which impinge upon treaty rights. Accordingly, they say 56

51 A detailed examination of the mechanisms for enforcing and protecting rights under Indigenous laws is beyond the scope of this review. 52 Lynda Collins and Meghan Murtha, “Indigenous Environmental Rights in Canada: The Right to Conservation Implicitly in Treaty and Aboriginal Rights to Hunt, Fish, and Trap” (2010) 47:4 Alta L Rev 1. 53 Ibid at 7, arguing that Crown authorization of environmentally destructive activities on traditional Indigenous lands without their consent is adverse to their interests and thus may constitute a breach of fiduciary duty, particularly when it threatens the physical and/or cultural integrity of the First Nation. 54 Ibid 13­14, noting that reports of Treaty Commissioners and the Royal Commission on Aboriginal Peoples indicate that First Nations made treaties to protect and preserve their way of life. This meant the continuing, sustainable use of their lands and natural resources, which depends on a healthy environment. 55 Halfway River First Nation v British Columbia (Ministry of Forests), [1997] 4 CNLR 45 (BCSC) adopted a narrow reading of the limitations on hunting and fishing rights in Treaty 8, placing substantial reliance on statements of the Treaty Commissioner. 56 In Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2001 FCT 1426, Hansen J accepted that environmental effects would impact treaty rights under section 35, and held that the Crown’s

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that governments have a constitutional duty to ensure that the environmental needs of

Indigenous peoples are not compromised. They say that this positive right to a healthy

environment enjoyed by Indigenous peoples would result in ecological benefits for all

Canadians. 57

Policy

Recognizing Indigenous Law and Expanding Aboriginal Rights

Aaron Mills argues that sustainable resource development policy would benefit

from the recognition of Indigenous law. He says that if governments recognized the

legitimate authority of Indigenous law over traditional lands, many Indigenous people

would be willing to see Canada as a community with which they are interdependent and

non­Indigenous people might benefit from the sharing of Indigenous ecological

knowledge. Many Indigenous nations have laws dictating that resources are to be 58

used to facilitate the well­being ofall life, which allows for sharing from Indigenous lands

with other humans as long as it does not jeopardize the well­being of living resource

systems themselves. The inclusion of Indigenous ecological knowledge in 59

environmental planning and assessment could lead to a common understanding that all

systems are connected and improve sustainability outcomes on Indigenous lands and

beyond. 60

consideration of environmental effects in general (though an environmental assessment process) was not sufficient to address the potential infringement of a treaty right. 57 Supra note 52 at 28­29. 58 Aaron Mills, “Aki, ANishinaabek, kaye tahsh Crown” (2010) 9 Indigenous LJ 107 at 115. 59 Ibid at 116­117, explaining that under many Indigenous legal systems people owe a legal obligation to all living things (even rocks) so that each might continue to thrive as the Creator intended. 60 Ibid at 148. In Indigenous legal systems, resource management is integrated with harvesting to prevent negative environmental externalities and facilitate sustainable use. It may be possible for Indigenous laws and Canadian common law to align in terms of the courses of action they support in a specific factual context.

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Goldenberg examines the widespread hostility towards expanded rights and 61

differential treatment of Indigenous peoples’ interests in political discourses as a barrier

to justice that governments should overcome. He shows how Aboriginal rights to

manage resources are opposed for threatening the economic status quo and 62

challenging popular (mis)conceptions of Indigenous culture. Morally, he says that 63

governments should recognize broader rights as upholding the nature of Canada’s

historic relationship with its Indigenous peoples and addressing their unique concerns.

Such rights would affirm their interest in maintaining control over resource harvesting

and management, ensuring the continuity of their ecological values and other aspects of

their cultures. Legally, Goldenberg argues that principles of the Supreme Court’s 64

section 35 jurisprudence may impose positive obligations on governments to implement

broader Aboriginal rights to manage resources. 65

In summary, the recognition of Indigenous laws by governments would help

achieve better policy outcomes in terms of providing a healthy environment, not only on

their lands but in other parts of Canada connected by natural systems. For this to

happen, governments must overcome political opposition to expand Aboriginal rights to

manage resources and fulfill moral and legal obligations to Indigenous peoples.

61 Andre Goldenberg, “Salmon for Peanut Butter: Equality, Reconciliation and the Rejection of Commercial Aboriginal Rights” (2004) 3 Indigenous LJ 61. 62 Ibid at 96. 63 Ibid at 99, arguing that popular discourses endorsed by courts foster the harmful notion that harvesting resources should only involve traditional practices compatible with the stereotyped “nature” of Indigenous societies, freezing cultures and denying communities the opportunity (and necessity) to adapt to survive. 64 Ibid at 100. 65 Ibid at 108. In terms of principles, he cites the duty to consult and accommodate that may attach before a right has been proven in court, and the principle of reconciliation.

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Considering Indigenous Perspectives in Project Approvals

Chalifour looks at the discounting of community health concerns in environmental

assessments for resource projects near Fort Chipewyan. While the Indigenous

communities provided commentary and evidence about their traditional ecological

knowledge pursuant to the CEAA, decision­makers were not obliged to seriously

engage with their concerns and largely dismissed them as meritless or insignificant. 66

Despite its strong public participation provisions, she says the CEAA and other

environmental assessment legislation do not ensure adequate representation of the

perspectives of vulnerable Indigenous and other groups. 67

Szatylo examines how devastation of Indigenous lands continues without their

rights and views being fully considered, focusing on Alberta in particular. The Royal

Commission on Aboriginal Peoples acknowledged that Indigenous beliefs about land

and resources are central to their identities and entitled to respect. Unfortunately,

Szatylo notes that these concepts have continued to be ignored. Increased petroleum 68

and resource development in Alberta have impacted the environment, along with all

aspects of Aboriginal rights connected to it, and she says that this has made it difficult to

maintain Aboriginal livelihoods. While governments have financial reasons to maintain

the status quo, she cites financial, legal and moral reasons to fulfill Aboriginal rights

obligations, the breach of which could have disastrous effects on their interests, the

66 Nathalie Chalifour, “Bringing Justice to Environmental Assessment: An Examination of the Kearl Oil Sands Joint Review Panel and the Health Concerns of the Community of Fort Chipewyan” (2010) 21 J Env L & Prac 31 at 54­55. 67Ibid at 55. 68 Deborah Szatylo, “Recognition and Reconciliation: An Alberta Fact or Fiction?” (2002) 1 Indigenous LJ 201 at 205.

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environment, and Indigenous people. While procedural aspects of Aboriginal rights 69

rooted in treaties may be infringed by project approvals, treaty rights themselves may

be impinged by the environmental effects of resource development. As the author 70

recognizes with companies, governments cannot expect certainty from courts and

should be proactively involved with Indigenous communities, recognizing the benefits to

be derived from cooperating with them. 71

In summary, governments need to do more to ensure the just and adequate

consideration of the perspectives of vulnerable Indigenous and other communities

during the environmental assessment of resource projects. In Alberta in particular,

Indigenous lands have been environmentally degraded without the proper weighing of

theirs rights and perspectives, which are intimately connected to the land. There are

financial, legal and moral reasons for governments to be proactive in adopting policies

of engagement with Indigenous communities, in addition to the benefits in terms of a

healthier environment previously discussed.

Reconciliation and Self­Determination

Gunn suggests that reconciliation under section 35 requires addressing

Canada’s historical imposition of colonial law with the goal of assimilating Indigenous

peoples. She says that Canada must take advantage of the opening for action provided

by the Truth and Reconciliation Commission to address the foundational questions of its

69 Ibid at 204. 70 She cites Halfway, supra note 55, where the Court quashed a cutting permit because the BC government failed to meet its fiduciary duty and did not adequately consult, in accordance with the purposive (protect Aboriginal rights) interpretation of section 35 and Treaty 8. See Collins and Murtha, supra note 52. 71 Supra note 68 at 235. In R v Breaker, [1999] A.J. No. 754 (QL), Cioni J. implored the government to take its fiduciary relationship with Indigenous peoples seriously, recognizing the benefits to be derived from their practices and traditions.

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relationship with Indigenous peoples. She believes that true reconciliation requires that 72

Indigenous peoples determine their own futures. The aforementioned United Nations

Declaration on the Rights of Indigenous Peoples affirms the right to control their own

cultural development, addressing the underlying cause of colonial domination

emphasizing assimilation. Gunn believes the Declaration thus provides a framework for

self­determination that can be used to work toward a reconciliatory Crown­Indigenous

relationship based on justice and mutual respect. 73

Gunn argues that the colonial process targeted Indigenous peoples’ political,

economic, social and cultural systems and the remedy of self­determination will not be

sustainable unless Canadian legal and political systems make space for Indigenous

institutions. Accordingly, they must be consulted through their own institutions and 74

processes rooted in their own cultural and social practices to determine their future. This

right is based on the standard of free, prior and informed consent in the UNDRIP – a far

higher standard than the existing duty to consult. Gunn cites evidence that when 75

self­determination is supported by effective and culturally appropriate institutions,

72 Brenda Gunn, “Moving Beyond Rhetoric: Working Toward Reconciliation Through Self­Determination” (2015) 38 Dalhousie LJ 237 at 238. 73 Ibid at 242. In Reference re Secession of Quebec, [1998] 2 SCR 217, the Supreme Court held that the right to self­determination is a general principle of international law and human rights. It clarified that self­determination does not automatically equate to secession, nor require a particular political arrangement within the state, but can be achieved through better integration or recognition (e.g. self­government). 74 Supra note 72 at 254­255, noting many Indigenous peoples in Canada are not recognized as autonomous or self­governing, governed by the Indian Act with most powers residing with the Crown. 75 Ibid at 259­261, noting that: the existing duty to consult may only require notice and discussion of issues on governments’ terms; consent is only relevant to established rights, and maybe “severe infringement”; Indigenous peoples must be free to make decisions about economic development, which is intricately connected to their laws and rights to lands and resources and ability to escape dependence.

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communities have seen a wide variety of economic, social and cultural benefits and

begun to escape assimilation and colonialism. 76

In summary, the recent release of the report by the Truth and Reconciliation has

provided an opening for governments to act to remedy historical wrongs in their

relationships with Indigenous peoples. The newly adopted United Declaration on the

Rights of Indigenous Peoples provides a framework for self­determination that can be

used to achieve true and just reconciliation. Such reconciliation cannot be achieved in

the absence of a policy to make space for Indigenous institutions which can be effective

and culturally appropriate and provide economic, social, cultural and environmental

benefits to Indigenous communities and Canada.

Self­Government and Title in Modern Land Claim Agreements

To rectify the historical injustice and give meaning to section 35, Dalton argues 77

that the Federal Government must do more to recognize Aboriginal title and

self­government as crucial components in modern land claim agreements. She

expresses concern that self­government agreements negotiated pursuant to the Federal

Government’s Inherent Right Policy often do not sufficiently provide for Indigenous 78

institutions, which are necessary for the survival of Indigenous cultures and livelihoods.

Moreover, these agreements are separate from the land claim agreements 79

76 Ibid at 261­262. 77 Jennifer E. Dalton, “Aboriginal Title and Self­Government in Canada: What is the True Scope of Comprehensive Land Claims Agreements?” (2006) 22 Windsor Rev Legal & So Issues 29. 78 Ibid at 64, describing how in the Inherent Right Policy, self­government is implemented by negotiating the extent of autonomy that Indigenous governments may exercise relating to: internal matters integral to unique cultures, identities, traditions, languages and institutions; and internal matters with respect to their special relationship to the land and their resources; but not national sovereignty, economy or law. 79 Ibid at 30.

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themselves, so Dalton believes that they may not have treaty status and thus

self­government may not be protected under section 35, as negotiated. In the absence 80

of such concerns, negotiate self­government can cure uncertainty surrounding judicial

recognition of such a right while providing similar environmental and other benefits to

Indigenous peoples and Canada.

She believes that the Federal Government’s policy on title is even more of a

problem in terms of justice and protecting section 35 rights, as blanket extinguishment is

discordant with recent Aboriginal title jurisprudence. Rather than recognizing the

constitutional right to use and occupy their lands exclusively, which may arise before a

right is proven in court, she details how the government will only negotiate an 81

agreement to fulfill its corresponding obligations on strict conditions. Even if a

community meets the criteria and the relevant provincial government is willing to

negotiate, any agreement will include a section that extinguishes any future claim to 82

an inherent right of Aboriginal title. The author observes that this redefinition of

Aboriginal rights inevitably confines and limits fundamental rights by effectively

precluding a more broad interpretation than what is in the agreement. Peoples’ futures

become dependent on untested treaty rights, with fewer lands and just remedies in

respect of them available to serve the needs of future generations. This is contrary to 83

80 Ibid at 74. 81 Tsilhqot’in, supra note 27 and Haida, supra note 10. 82 Supra note 77 at 41. The criteria mentioned for accepting a land claim is based on Delgamuukw: occupation of the lands over which title is asserted, by an “organized society” and to the exclusion of others, since time immemorial. 83 Ibid at 71.

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the purpose of section 35 to rectify historical injustice and may even perpetuate the

assimilation of past government policy.

In summary, reconciliation under section 35 requires a policy of negotiating land

claim agreements that better respects the value of Aboriginal title and self­government

as crucial components for the sustainability of Indigenous cultures and livelihoods, as

well as the healthy environment which they depend on and protect.

Conclusion

The protection of Aboriginal rights depends on and facilitates a right to a healthy

environment and can only be meaningfully protected through this recognition by

adjudicators and policymakers alike. The strongest foundations for a right to a healthy

environment within Aboriginal law are judicial recognition of Aboriginal title, the broad

interpretation of Aboriginal and treaty rights, and negotiated self­government within

modern land claim agreements.

In terms of legal issues, the incorporation of Indigenous perspectives under

Aboriginal law could protect a healthy environment by helping to get an injunction

against activities that harm the land, to which they are intimately connected. An

Aboriginal right to manage resources would inhibit non­consensual activities negatively

impacting resources within the scope of the right, amounting to a negative right to a

healthy environment vis­a­vis governments, industry, and other parties. Aboriginal title

includes a right to manage resources and to a healthy environment in the same sense.

Similarly, an Aboriginal right to self­government is necessary under a right to Aboriginal

title and, arguably, must otherwise include a right to manage resources (and a negative

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right to a healthy environment) because of Indigenous peoples’ important connection to

the land. Such rights to self­government or Aboriginal title could lead to the recognition

of Indigenous law within Canadian common law as necessarily incidental, which would

add the benefit of a positive right to a healthy environment vis­à­vis other members of

an Indigenous community and the community itself. Lastly, recognized Aboriginal and

treaty rights to harvest should include a positive right to a healthy environment since

they would otherwise be meaningless, contrary to principles of interpretation from the

section 35 jurisprudence.

From a policy perspective, governments should strive to overcome political

opposition to recognize Indigenous law and expand Aboriginal rights to fulfill moral and

legal obligations to Indigenous peoples and achieve better environmental outcomes in

Canada. Governments should engage with Indigenous communities and ensure that

their health and other perspectives are considered in environmental decision­making,

for the same reasons. The recent release of the report by the Truth and Reconciliation

Commission has provided an opening for governments to implement the United Nations

Declaration on the Rights of Indigenous Peoples and achieve reconciliation through

Indigenous self­determination. Such a policy must make space for Indigenous

institutions to provide economic, social, cultural and environmental benefits to

Indigenous communities and Canada. Lastly, ongoing modern land claim negotiations

should better respect the value of Aboriginal title and self­government as crucial

components for the sustainability of Indigenous cultures and livelihoods, as well as the

healthy environment which they depend on and protect.

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