405
Respect for Treaty Rights in Ontario: The Law of the Land?
BY MICHAEL COYLE*
This article examines to the extent to which Cet article examine dans quelle mesure les lg- legislatures and the Crown have taken steps to islatures et la Couronne ont pris des mesures give effect to the constitutional entrenchment afin de donner effet a l'enchassement constitu- of treaty rights in Ontario. The writer's analysis tionnel des droits issus de trait~s en Ontario. suggests that treaty disputes in Ontario reflect a L'auteur sugg~re que les diffrends souleves par
SYtematic governmental failure to identify, les trait~s en Ontario refl~tent l'omission syst6- 2008 CanLIIDocs 112 efine and recognize treaty rights in the matique du gouvernement d'identifier, de province. This article will suggest that the cre- d~finir et de reconnaitre les droits issus de ation of mechanisms to assist in defining treaty traits dans la province. A son avis, il faut crier rights and resolving treaty disputes is necessary des mcanismes pour aider s d~finir les droits for the Crown to fulfil its constitutional obliga- issus de trait~s et ai rtsoudre les diffrends en tions to ascertain and to give effect to existing rsultant afin que la Couronne respecte ses obli- treaty rights in the province. gations constitutionnelles d'6tablir les droits existants issus de trait~s et de leur donner effet dans la province.
Associate Professor, Faculty of Law University of Western Ontario. The author acknowledges the financial assistance of the Ipperwash Inquiry, which commissioned much of the research used in this article. He would like to thank Professor Berend Hovius, aswell as Hilary Linton and Simon Collins-Pallett (UWO 09) for their assistance in reviewing earlier drafts of this article. Any errors that remain are the author's. 406 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 39:2 39:2
Table of Contents
407 I. INTRODUCTION 410 II. THE HISTORICAL TREATIES: SYSTEMIC SOURCES OF DISPUTES ABOUT THE PARTIES' RIGHTS 420 I11. PAST CROWN TREATY POLICIES IN ONTARIO 424 IV. CURRENT CROWN TREATY POLICIES IN ONTARIO 426 A. Hunting and Fishing Rights Off-Reserve 427 B. Forestry Rights 429 C. Other Provincial Decisions That May Affect Traditional Uses of Treaty Lands 430 V. DEFINING AND IMPLEMENTING TREATY RIGHTS: THE CROWN'S OUTSTANDING OBLIGATIONS 437 VI. CONCLUSION 2008 CanLIIDocs 112 407
Respect for Treaty Rights in Ontario: The Law of the Land?
BY MICHAEL COYLE
I. INTRODUCTION
We in this country do not seek a constitution that is nothing but a paper monument for rights that are buried under a pile of empty words. We seek constitutional provisions that have practical meaning and benefit for the people they concern.I 2008 CanLIIDocs 112
Prime Minister PierreTrudeau
It has now been 25 years since the formal entrenchment of treaty rights in Canada's Constitution.' Those years have seen numerous judicial decisions about the interpre- tation of treaties, the relationship between treaty rights and the ordinary laws of the land, and the obligations of the Crown to consult with Aboriginal peoples when it makes decisions that might affect treaty or Aboriginal rights. Much has also been written by academics in an effort to offer guidance to the judicial effort to define the scope of the rights guaranteed by section 35. Thus far, however, relatively little atten- tion has been paid by legal scholars to the extent to which legislatures and Crown governments have taken steps to give effect to the newly entrenched constitutional rights of Aboriginal peoples. Reviewing levels of legislative or executive activity in an area may seem like a merely descriptive task, beneath the attention of the legal schol- ar or the courts. However, this review suggests that, in the area of treaty rights, the subject is not only worthy of scholarly attention, but it is vital to a full appreciation of the legal and constitutional issues that remain. The importance of those issues is reflected in the intensity of recent confrontations in Ontario and in the recommen- dations made by the recent Ipperwash Inquiry.'
I. The Right Honourable Pierre Elliott Trudeau, "Statement by the Prime Minister of Canada to the Conference of First Ministers on Aboriginal Constitutional Matters, 8-9 March 1984" in Menno Boldt, I., Anthony Long & Leroy Little Bear, eds., The Quesifor Justice: Aboriginal Peoples and Aboriginal Rights (Toronto: University ofToronto Press, 1985) 148 at ISO. 2. Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. II [Constitution Act, 19821. 3. Ontario, Report of the Ipperwash Inquiry: Investigation and Findings, vol. 1 (Toronto: Ministry of the Attorney General, 2007); Report of the Ippcrwash Inquiry: Policy Analysis, vol. 2 (Toronto: Ministry of the Attorney General, 2007); Report of the Ipperwash Inquiry: Inquiry Process,vol. 3 (Toronto: Ministry of the Attorney General, 2007); Report of the Ipperwash Inquiry: Executive Summary, vol. 4 (Toronto: Ministry of the Attorney General, 2007) (Commissioner: Hon. Sidney B. Linden); online: The Ipperwash Inquiry
There are a number of reasons for expanding the context of section 35 rights analysis to include a review of implementing initiatives by the legislature and the executive. First, Aboriginal and treaty rights differ from many other constitutional rights (like freedom of expression, for example) in that, prior to 1982, they were largely ignored as political and legal values. Therefore, it becomes critically impor- tant to examine the extent to which constitutional amendment has increased the free- dom of Aboriginal peoples to exercise their newly entrenched rights. As Prime Minister Pierre Trudeau observed, and an enlightened analyst of Soviet-style consti- tutions would confirm, what matters about constitutionally expressed values is the extent to which they have a practical impact on the society they purport to govern. If there are negligible institutional moves to enforce newly recognized rights, then judicial decisions in favour of individual rights claimers will be less significant than they might at first appear. Examining the response of the Crown and legislatures to the entrenchment of 2008 CanLIIDocs 112 treaty rights is not just of pragmatic importance-it also raises important issues about respect for the fundamental principle of constitutionalism. The Supreme Court of Canada has made clear that the Constitution is not merely an inventory of legal tools available to individuals who believe that government action has treated them unfairly-it is an expression of commitment to the fundamental principles by which Canadians have agreed to be governed.4 So too with section 35 of the Constitution, which the Supreme Court has indicated is a "solemn commitment that must be given meaningful content."5 The task of giving meaning to section 35 is not the courts' alone. The Crown is bound by a legal obligation to act honourably in consulting with Aboriginal peoples to seek an accommodation where there is reason to believe that government activi- ties might adversely affect their constitutionally protected rights. 6 The decisions of
4. In Reference re Manitoba Language Rights, 119851 1 S.C.R. 721 at 745, 19 D.L.R. (4th) I, the Court stated as follows: "The Constitution of a country is a statement of the will of the people to be governed in accordance with certain principles held as fundamental and certain prescriptions restrictive of the powers of the legisla- ture and government."This statement was repeated by the Supreme Court in determining the "purposive" approach that should be taken to section 35 in R. v. Sparrow, 119901 I S.C.R. 1075 at 1106, 70 D.L.R. (4th) 385 ISparrow cited to S.C.R.]. For a useful analysis of section 35 in this regard, see Noel Lyon, "An Essay on Constitutional Interpretation" (1988) 26 Osgoode Hall L.J. 95; William Pentney, "The Rights of the Aboriginal Peoples of Canada in the Constitution Act, 1982, Part II, Section 35:The Substantive Guarantee" (1988) 22 U.B.C. L. Rev. 207. 5. Sparrow, ibid. at 1108. 6. R.v. B3adger, 119961 1 S.C.R. 771 at para. 41, 133 D.L.R. (4th) 324 [Badger cited to S.C.R.; Haida Nationv. British Columbia (Minister of Forests), 2004 SCC 73, 120041 3 S.C.R. 511 at para. 25, 245 D.L.R. (4th) 33 JHaida cited to S.C.R.]; Taku River Tlingit First Nation v. British Columbia (Project AssessmentDirector), 2004 SCC 74, 120041 3 S.C.R. 550 at paras. 24-25, 245 D.L.R. (4th) 193 ITaku River cited to S.C.R.J. As for treaty rights in particular, "the honour of the Crown infuses every treaty and the performance of every treaty obli- gation." See Mikiseiw CreeFirst Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, 120051 3 S.C.R. 388 at para. 57, 259 D.L.R. (4th) 610 [Mikisew cited to S.C.R.J. RESPECT FOR TREATY RIGHTS IN ONTARIO: THE LAW OF THE LAND? 409
the Supreme Court in Haida, Mikisewt and Taku River established that the Crown has an obligation to consult with Aboriginal peoples where its proposed actions risk vio- lating section 35 rights that have been asserted but not yet proven in court. But the Supreme Court also made clear that the Crown's obligations in relation to section 35 go beyond seeking interim accommodations to claimed rights; the Crown must act honourably in taking steps to identify and define the rights that section 35 guaran- tees.7 The implication is clear where treaties have not yet been negotiated: the gov- ernment must seek to reconcile sovereignty claims through honourable negotiation.' The writer suggests that the implication is equally clear where treaties were negoti- ated in the past: the government must act honourably in taking steps to identify, define and recognize the rights created by these historical treaties. This obligation is particularly significant where governments are aware that the scope of rights created by a treaty is the subject of longstanding dispute between the Crown and the Aboriginal signatory. And that, in turn, makes it important to review the efforts by 2008 CanLIIDocs 112 the Crown to identify and define the rights created by historical treaties. This article will focus on the Crown's response thus far to the challenge of recognizing treaty rights in Ontario. Ontario offers fertile ground for analysis because of the sheer number of treaties made in the province and because of the longevity of historical disputes over the meaning of those treaties. In recent years, Ontario has been the setting of many particularly intense confrontations over treaty and land rights. Incidents at Ipperwash Provincial Park, the town of Caledonia, the Red Hill Valley in Hamilton and BigTrout Lake are perhaps the most prominent, but more than 100 "Aboriginal critical incidents" have been reported by the Ontario Provincial Police since 1995. 9 The existence of longstanding treaty disputes appears to be a particularly important factor in accounting for such confrontations.' The question posed in this article is whether treaty disputes in Ontario are exceptional cases arising from disagreements, over particularly controversial cases of treaty interpretation, or whether they reflect a failure to bring laws and policies sys- tematically into step with the new constitutional framework of treaty rights. If there has been a systematic legal failure to identify, define and recognize treaty rights in the province, then the recently-issued recommendations of the Ipperwash Inquiry, that Ontario and Canada take specific measures to recognize treaty rights across the
7. In Haida, ibid. at para. 20, McLachlin C.J., for the Court, confirms that s. 35 represents a promise of rights recognition, and that "'lilt is always assumed that the Crown intends to fulfil its promises' . ... It is a corol- lary of s. 35 that the Crown act honourably in defining the rights it guarantees and in reconciling them with other rights and interests." lemphasis addedl. 8. Ibid. 9. A significant number of these involved blockades: see Ipperwash Inquiry, vol. 2, supra note 3 at 19-22. 10. Longstanding treaty disputes are "perhaps the most important indicator of the potential for an occupation or protest." Ibid. at 30. 410 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 39:2 39:2
province, 11 raise more than just political and moral considerations. This article will suggest that the creation of mechanisms to assist in defining treaty rights and resolv- ing treaty disputes is in fact necessary to fulfil the governments' constitutional obli- gations to ascertain and to give effect to existing treaty rights in the province. The argument will be developed in three parts. First, a brief review of the his- tory of treaty-making in Ontario will demonstrate that ambiguities as to the parties' common intent were an inevitable part of the treaty making process. Second, a review of the historical record will indicate that the Crown has failed to take steps to fulfil its obligation to honourably resolve such interpretive conflicts. The third part of this article will develop the argument that this failure to act leaves the Crown in vio- lation of its constitutional obligation to act honourably in identifying and defining treaty rights. Lastly, a note about the scope of the issues this article will address. In consid- 2008 CanLIIDocs 112 ering the possibility that there is a disjunction between the Supreme Court's insis- tence that the Crown act honourably to identify and define treaty rights and the current absence of mechanisms to do so in Ontario, this article will focus on disputes about the continuing rights provided for by treaties in relation to the traditional lands of Aboriginal nations. It will not address disputes about past transactionsin which it is alleged that the Crown illegally dispossessed a First Nation of lands or other assets. There are hundreds of such "land claims" across the country, and the Crown's obliga- tions in relation to such claims have been the subject of considerable recent analysis. 12 The focus of this article will be on efforts to resolve disputes about the rights of Aboriginal treaty parties to maintain their connection with their traditional lands and to continue to benefit economically from those lands. It will be seen that this was a key preoccupation of Aboriginal treaty negotiators and has been a persistent subject of dispute ever since.
II. THE HISTORICAL TREATIES: SYSTEMIC SOURCES OF DISPUTES ABOUT THE PARTIES' RIGHTS
In considering the nature and extent of efforts in Ontario to identify and enforce the terms of treaties with Aboriginal peoples, it is necessary to consider briefly the his- tory of treaty-making in the province. The historical treaties that underpinned the settlement of what is now Ontario by non-Aboriginal people contain a wide range of
11. Ibid.. vol.4at99-104. 12. See e.g. William B. Henderson & Derek T. Ground, "Survey of Aboriginal Land Claims" (1994) 26 Ottawa L. Rev. 187; Michael Coyle, "Addressing Aboriginal Land Rights in Ontario: An Analysis of Past Policies and Options for the Future-Part I"(2005) 31 Queen's L.J. 75; Michael Coyle, "Addressing Aboriginal Land Rights in Ontario: An Analysis of Past Policies and Options for the Future-Part I1"(2006) 31 Queen's L.J. 796. RESPECT FOR TREATY RIGHTS IN ONTARIO: THE LAW OF THE LAND? 411
engagements, relating not only to the general relations between the parties, but also to their respective rights in connection with the land and its resources. At least 35 separate agreements with Aboriginal nations about the terms of settlement of various parts of the province were reduced to writing by the Crown between 1763 and 1929.13 Over that time, the Crown and Aboriginal peoples also exchanged other solemn engagements that were not reduced to writing, but that would nonetheless be legally characterized, then and now, as treaties. 4 Finally, even where treaty agree- ments were reduced to writing, the promises made in those treaties were not restricted to the formal "treaty" documents drafted by agents of the Crown. It is clear that the Crown negotiators frequently made solemn oral assurances on matters of critical importance to the Aboriginal side. Such assurances need to be considered, together with the entire context of the treaty negotiations, in determining what appears to have been the entire set of understandings reached by the parties.15 Some sense of the variety of treaty promises historically exchanged in Ontario 2008 CanLIIDocs 112 can be gleaned from the first formal treaty reached by the British Crown with First Nations in Ontario, theTreaty of Niagara. 16The negotiations occurred at a grand coun- cilheld in July 1764 between Sir William Johnson, the Crown's Superintendent of Indian Affairs, and some 2000 representatives of Indian nations with whom the British wished to secure a lasting alliance in the uneasy aftermath of the Seven Years War.
13. Surtees lists 32 agreements relating to land between 1764 and 1862 in R.J. Surtees, Indian Land Surrenders in Ontario 1763-1867 (Ottawa: Indian and Northern Affairs Canada, 1984) at 1 (Surtees, "Indian Land"j; Treaties 3 and 9 and the Williams Treaty were entered into after Confederation, with the final adhesions to Treaty 9 occurring in 1929-30: Indian and Northern Affairs Canada, "Timeline and Maps," online: Indian and Northern Affairs Canada,
The council at Niagara ended with promises of peaceful alliance by the Indian nations represented there and corresponding assurances by the Crown that it would provide for the protection of Indian lands (at the time, all of present-day Ontario) in accor- dance with the terms of The Royal Proclamation (1763). " Another important engage- ment made at Niagara was that there would be "[firee, fair [and] open [tirade" at the British trading posts. " Finally, the same council saw a more specific agreement regard- ing the use of a particular tract of land: the Senecas agreed to allow the Crown to use land bordering the Niagara River for a portage, although not for settlement. 19 TheTreaty of Niagara was one of a series of treaties in eastern North America that focused on establishing or renewing the terms of the political and legal relation- ship between the British Crown and Aboriginal nations that the senior British colonial officials considered, at least until the end of the 18th century, to be governed inter- nally by their own laws.2 0 After the American Revolution, however, the Crown's motivation in entering new treaties focused increasingly on making land available for 2008 CanLIIDocs 112 non-Indian settlement. Dozens of treaties were signed between 1780 and 1850, pro- viding for the freeing up of Aboriginal lands for colonial settlement. Each of these agreements had different written terms, although all provided for immediate pay- ments or annuities to the Aboriginal signatories. 2 The physical environment in which these treaties were signed changed tremendously over these seven decades as waves of settlers emigrated to the province. In 1763, the settler population in Upper Canada was reported as zero. The Crown's policy of encouraging immigration to British North America meant that, by 1814, the settler population in this area had reached 95,000. By 1850, the settler population in the province was more than 950,000.22 From that point, the context of treaty-making shifted again: the govern- ments' focus in treaty-making shifted to securing access to the mineral and forestry
17. R.S.C. 1985,App. 1l, No. 1. 18. Johnson's description of the trade promise can be found in Alexander C. Flick, ed., The Papers of Sir William Johnson, vol. IV (Albany: University of the State of NewYork, 1925) at 332, 487. 19. See E.B. O'Callaghan, ed., Documents Relative to the Colonial History of the State of Newi York, vol. VII (Albany: Weed, Parsons and Company, 1856) at 621-628; Surtees, "Indian Land,"supra note 13 at 15-16. 20. For a helpful description of the series of"Covenant Chain" treaties and the recorded views of leading colo- nial officials in the 18' century on the independent status of Indian nations, see Walters, "Covenant Chain," supra note 16; James js~kij lYoungblood Henderson, "EmpoweringTreaty Federalism" (1994) 58 Sask. L. Rev. 241. In Sioui, supra note 14 at 1053, the Supreme Court of Canada recognized that, at the time of the Treaty of Niagara, the British Crown "felt that the Indian nations had sufficient independence and played a large enough role in North America for it to be good policy to maintain relations with them very close to those maintained between sovereign nations." In fact, councils expressly modeled on the relationship affirmed at Niagara continued to occur between senior colonial officials and Indian nations in Upper Canada until the 1820s. See Walters, "Covenant Chain,"supra note 16 at 111-119. 21. For an overview of the various treaties signed with the Mississaugas and Chippewas between 1818 and 1850 see Surtees, "Indian Land," supra note 13 at 67-100. 22. Statistics Canada, "Censuses of Canada 1665 to 1871 ," online: Statistics Canada
resources present on Aboriginal lands in northern Ontario. The Robinson treaties, Treaty 3, Treaty 5 and Treaty 9 all purported to secure for the Crown clear title to tens of thousands of square miles of land in exchange for promises of continued rights of the Aboriginal peoples to use those lands.23 As stated, this article will focus on the relationship between historic treaty promises and the ability of Aboriginal peoples in Ontario to continue to sustain themselves-spiritually, culturally and economically-from the lands that were the subjects of the treaties. From the perspective of the Aboriginal treaty parties, it is diffi- cult to overstate the significance of assurances that they could continue to maintain these connections with their traditional lands after the signing of a treaty. It seems like- ly that Aboriginal peoples entered treaties with the Crown precisely so that they could be assured of the right, in the face of increasing European settlement, to carry on a viable existence in a manner that maintained their cultural integrity and reflected their strong attachment to the land.24 In light of Aboriginal spiritual and cultural traditions 2008 CanLIIDocs 112 and their economic and physical interests as peoples, it would be logical to treat this as the default hypothesis in relation to their intentions in entering a particular treaty. That is, in the absence of persuasive evidence to the contrary, the conclusion that an Aboriginal nation intended, in entering into a treaty, to sever all links with a significant portion of their traditional lands seems an unlikely one.25 In any event, the documentary record makes clear that Crown assurances of continued harvesting rights on traditional lands were vital to the conclusion of many, if not all, of the treaties. The minutes of the 1818 Chippewa Nation treaty negotiation, for example, make clear the importance to the Chippewa of being guaranteed the con- tinuing right to hunt and fish on the territory covered by the treaty.2 6 In connection with the 1850 Robinson-Huron Treaty, William Robinson advised his superiors:
23. For the texts and Crown negotiation records of the Robinson Huron and Robinson Superior Treaties of 1850 and ofTreaty 3, seeThe Hon. Alexander Morris, P.C., The Treaties of Canada with the Indians of Manitoba and the North-West Territories, Including the Negotiations on Which They Were Based, and Other Information Relating Thereto (Toronto: Belfords, Clarke & Co., 1880) reprinted (Toronto: Coles Publishing Company, 1971) at 302-309, 320-329. For the text ofTreaty 9, seeTreaties and Historical Research Centre, Indian and Northern Affairs Canada, Treaty Research Report: Treaty No. 9 (1905-1906): TheJames Bay Treaty by James Morrison (Ottawa: Indian and Northern Affairs Canada, 1986) at 88, online: Indian and Northern Affairs Canada
In allowing the Indians to retain reservations of land for their own use I was governed by the fact that they in most cases asked for such tracts as they had heretofore been in the habit of using for the purposes of residence and cultivation, and by securing these to them and the right of hunting and fishing over the ceded territory, they cannot say that the Government takes from their usual means of subsistence ....27
Similarly, Duncan Campbell Scott, federal Treaty Commissioner in the negotiation of Treaty 9 in 1905, recorded concerns expressed by Aboriginal leaders that by signing the treaty they would be confined to their reserves and lose their hunting and fishing rights on their traditional territories. Scott reported that the Crown's commissioners replied that such concerns were "groundless, as their present manner of making their livelihood would in no way be interfered with ... ."28 Assurances like those offered by the Treaty 9 commissioners are recorded as having been proffered in treaty nego- tiations across the province.29
We have seen that the honour of the Crown imposes on the Crown a legal obli- 2008 CanLIIDocs 112 gation to identify, define and implement the rights created for Aboriginal peoples under the treaties it entered. In assessing the historical record in this regard, it is nec- essary to consider, first, the interpretive questions raised by historical treaty negotia- tions, and the initiatives of the Crown, if any, to resolve such interpretation issues honourably. It is also necessary to consider the initiatives taken by the Crown to ensure that the rights created under the treaty, as defined by the Crown, acting honourably, were given full effect. It is clear that, unless the Crown fulfils both roles in relation to each treaty right, its claim to recognize treaty rights will be a hollow one, inconsistent 30 with its obligations to act honourably in making and implementing treaties. The varied contexts of historical treaty-making mean that identifying and defining the rights secured by each party to a particular treaty is not now, and never has been, a straightforward task. However, three main causes of conflict arose repeat- edly in connection with interpretation of the treaty agreements. First, disputes arose where oral promises differed from the written text of a treaty. Second, in many cases the brevity of written treaty terms made the written text itself ambiguous. Third, the
27. Morris, supra note 23 at 19. Entire Robinson report appears at 17-2 1. 28. Morrison, supra note 23 at 38. 29. In relation to the treaties prior to 1850, see e.g.Treaties and Historical Research, Indian and Northern Affairs Canada, Treaty Research Report: The Robinson Treaties (1850) by Robert J.Surtees (Ottawa: Indian and Northern Affairs Canada, 1986) at 3, online: Indian and Northern Affairs Canada
presence of significant cultural and linguistic differences between Crown and Aboriginal negotiators frequently appear to have caused each party to come away with a different understanding of what had been agreed upon. All of these factors created problems from the outset in defining the parties' common intent under the treaties. The most obvious type of interpretation problem arose in relation to harvest- ing rights when written terms conflicted with oral agreements reached during the negotiations. In many such cases, the Aboriginal negotiators would have bad no rea- son to suspect that the written version of the treaty would later be considered more important by the governments than the promises made directly to them during the negotiations."' We know about the problem of variance between oral and written assurances, because oral promises were frequently recalled by Aboriginal elders and documented by the Crown's negotiators in their own reports of the negotiations. In some cases, as with a treaty involving the Chippewa Nation from 1818, in which the Chippewas are described as surrendering some two million acres of land, an oral 2008 CanLIIDocs 112 promise to allow the Aboriginal people to continue harvesting food on their tradi- tional lands was simply not mentioned in the written text.32 In other cases, the oral assurances offered by government representatives were much broader than the terms of the written treaty ultimately prepared by the Crown. For example, the differences between the breadth of the Crown's oral promises about continuing Aboriginal har- vesting rights and the written restrictions on those rights in the Robinson treaties, Treaty 3 and Treaty 9 have been well documented.33 Similar discrepancies between oral and written assurances regarding harvesting are documented in connection with the later numbered treaties in the Prairies,3 4 and there is no reason to suppose the problem was not rife in treaties negotiated earlier in Ontario.
31. Consider, in this context, the explanation of Wiliam Claus to the Chippewas of the significance of the writ- ten text of Treaty 20 (for which the Chippe was required translation). Claus described the written text as follows: "We will now sign the Paper, it is merely to shew your Great Father our work, & when he agrees to our proceeding, you will then have to sign another Paper . . . ." Taylor and Williams, supra note 15 at 364. 32. This was the background to the dispute in Taylor and Williams, ibid., an unsuccessful prosecution of a First Nations member for catching bullfrogs out of season. In that case, an oral assurance of continued hunting and fishing rights was recognized as a treaty right by the Ontario Court of Appeal, which found that no other interpretation of the parties' agreement would uphold the honour of the Crown. 33. In each of these cases, despite assurances by Crown negotiators that the traditional activities of the Aboriginal peoples would not be impeded, the written treaty texts contained limitations on harvesting rights so broadly drafted that by the treaty's literal terms, the harvesting rights could be rendered useless by Crown actions after the treaty.The Robinson Treaties provided that the right to hunt and fish extended throughout the lands covered by the treaty, except on "such portions of the said territory as may from time to time be sold or leased to individuals or companies of individuals, and occupied by them with the consent of the Provincial Government." Morris, supra note 23 at 306. However, Rosinson himself had orally assured the Aboriginal leaders that significant settler occupation in the area was unlikely: Morris, supra note 23 at 17. For a discussion of the written restrictions on harvesting inTreaty 9, considered in light of the Crown's oral assurances during the negotiations, see Morrison, supra note 23 at 33-35. See also Macklem, supra note 25; Imai, "Treaty Lands," supra note 25. 34. See e.g. the Crown's record of negotiation in relation toTreaty 8: Badger, supra note 6 at paras. 38-40, Sopinka J. 416 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 39:2 39:2
The second main cause of difficulty regarding the meaning of treaty agreements was the presence of ambiguities in the written texts themselves. The problem here, as the majority of the Supreme Court recently acknowledged in R. v. Morris, is the "lean and often vague vocabulary of historic treaty promises."3" The brevity of certain terms used in the written documents, such as the right to hunt and fish "as formerly," or "sub- ject to such regulations as may from time to time be made," inevitably gave rise to dis- putes as settler interests encroached more and more on the Aboriginal nations' traditional lands. Similarly, the manner in which Aboriginal harvesting guarantees were expected to coexist with the right of the Crown, as stated in some of the treaties, to take up lands for settlement and resource development, could not help but raise questions about the parties' intentions as to their respective treaty rights in the future.36 After 1867, the division of jurisdictions between the federal and provincial governments raised further questions-even in relation to the treaties entered earlier-about which level of government could exercise the Crown's rights under the 2008 CanLIIDocs 112 treaties and which was responsible for ongoing Crown obligations under the treaties. Some sense of the scope of the challenges created by textual ambiguities in the historic treaties can be gleaned from Patrick Macklem's summary of the questions raised at the outset by the wording of the hunting and fishing guarantee in Treaty 9:
[Njowhere in the treaty is there any description of the extent of the discretion accorded to the 'Government of the Country' to regulate the exercise of hunting, trapping, and fishing rights. To whom does the phrase 'Government of the Country' apply? To what types of governmental action does it refer? Nor is there any clarification of the ambigui- ties contained in the second qualification placed upon the exercise of hunting, trapping, and fishing rights, namely, that those rights do not extend to tracts of land 'as may be required or taken up from time to time for settlement, mining, lumbering, trading and other purposes.' By what means are lands to be 'taken up for settlement' or other pur- poses? It is also unclear what 'other purposes' can serve to restrict the exercise of hunt- 37 ing, trapping, and fishing rights.
Keep in mind that the treaty referred to here was one of the most recent of the his- torical treaties entered in Ontario, and its written text among the lengthiest. The modern rules of treaty interpretation indicate that the response to Macklem's ques- tions should be found by choosing among the possible interpretations "the one which best reconciles the interests of both parties at the time the treaty was signed."38 This challenge, in turn, requires an examination of the historical, political and cultural contexts of the treaty in question. Fierce debate continues to this day about how to
35. 2006 SCC 59, [200612 S.C.R. 915 at para. 18, 274 D.L.R. (4th) 193 lMorris cited to S.C.R.. 36. See Macklem, supra note 25 at 127; Imai,"Treaty Lands,"supra note 25. 37. Macklem, ibid. at 11I. 38. Marshall I, supra note 15 at para. 78. RESPECT FOR TREATY RIGHTS IN ONTARIO: THE LAW OF THE LAND? 417
interpret the parties' stated rights in connection with the taking up of treaty lands and 3 9 the governments' discretion to enact regulations limiting treaty harvesting rights. And, as we shall see, acrimonious disputes about the effect of such treaty terms on harvesting rights first surfaced early in the treaty-making period. A closely related problem arising from the brevity and ambiguities of histori- cal treaties is whether terms not stipulated in the treaty text should properly be inferred to give effect to the apparent purposes of the agreement. Recent judicial decisions ruling that particular treaties contain such implied terms have caused con- troversy. In Marshall I, the implied term involved an unstated Aboriginal right to har- vest a limited amount of fish and wildlife for trade. 40 In Sioui and Morris, the Supreme Court was prepared to consider whether Aboriginal harvesting practices were sub- ject to an implied "internal limit" restricting such practices in ways that would respect settler interests in the territory.4 1 Similarly, in Mikisew, the Court determined that the federal Crown's use of treaty lands was subject to what amounts to an implied obli- 2008 CanLIIDocs 112 gation to consult with the Aboriginal party about the potential impact of its propos- al on the latter's interests. In Marshall I and Mikisew, the Court ruled that "implying" a treaty term was necessary to fulfil the honour of the Crown. In Sioui and Morris, the Court indicated that it would be acceptable to imply a treaty term in order to meet the parties' presumed intentions in relation to their future coexistence. In all of these cases, the modern courts' recognition of "implied" terms amounts to an acknowl- edgement of the significance of the ambiguities that were frequently present in his- toric treaty arrangements. Finally, a systemic subject of textual ambiguity in the historical treaties is how the parties intended their obligations to be interpreted in the distant future. It is well documented that Crown negotiators regularly emphasized that treaty arrangements and relationships would endure into the unknown future-"as long as the sun goes round and the water flows," as Alexander Morris reported promising in the negotia- tion ofTreaty 3 .42However, while Aboriginal peoples had traditions of "polishing" or renewing formal relations of respect and friendship, the historic treaty documents prepared by the Crown tended to be silent as to how the arrangements would be
39. See e.g. Imai, "Treaty Lands,"supra note 25; Macklem, supra note 25; Mikisew, supra note 6 at paras. 32, 56 (finding that the right to "take up" land in Treaty 8 is subject to the obligation of the Crown to act hon- ourably); Morris, supra note 35 at para. 28 (interpreting whether hunting at night was protected by a treaty right to hunt "as formerly"); and Keewatin. v. Ontario (Minister of Natural Resources) (2006), 32 C.P.C. (6th) 258 at paras. 126-218 (Sup. Ct. J.) lKeewatini. 40. Supra note 15 at para. 7. 41. See Sioui, supra note 14 at 1067; Morris, supra note 35 at para. 37. 42. A. Morris, The Treaties of Canada with the Indians of Manitoba and the North-West Territories: including the negoti- ations on which the),were based and other information relating thereto (Prospero Books:Toronto, 2000) at 75 (in connection with Treaty 3) and 96, 202 (for similar language used in connection with Treaty 4 and Treaty 6, respectively). 418 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 39:2 39:2
amended to meet future circumstances and as to how disputes between the parties would be resolved. Further, the written treaties typically defined the parties' obliga- tions to each other in narrow, functional terms specific to the era in which the treaty was entered-a far cry from the type of drafting seen in constitutional documents intended to provide flexible guidance for the future relationships of bodies politic within Euro-Canadian society. This failure to provide for changes in the parties' cir- cumstances made future conflict over the parties' rights inevitable, as the Supreme Court of Canada suggested recently in Mikisew. The Court's comments in that case in relation to Treaty 8, signed in 1899, could be applied to most of the historical treaties in Ontario:
There was thus from the outset an uneasy tension between the First Nations' essential demand that they continue to be as free to live off the land after the treaty as before and the Crown's expectation of increasing numbers of non-aboriginal people moving into the
surrendered territory. 2008 CanLIIDocs 112
[Nlone of the parties in 1899 expected that Treaty 8 constituted a finished land use blue- 43 print. Treaty 8 signalled the advancing dawn of a period of transition.
Absent willingness from both parties to renegotiate the treaties in accordance with the underlying principles of their original arrangements, the question of how to reconcile the parties' rights in new circumstances (like the destruction of habitats that made the original arrangements acceptable to both sides) would inevitably lead to significant disagreements about how the parties' rights should be implemented 44 in the future. The third obstacle to ascertaining the rights created by historical treaties is perhaps even more profound. The process of treaty interpretation involves an attempt to discern the parties' common intent in relation to the issues covered by the treaty. Modern interpretation principles call for a context-based effort to find an interpre- tation of common intention that best reconciles the parties' interests at the time of
43. Alikisew, supra note 6 at paras. 25, 27. 44. Hence the prominence of litigation and continuing uncertainty about the types of modern Aboriginal activi- ties that should be deemed protected by the treaties, evidenced by Marshall 1, supra note 15; R. v. Marshall, 1199913 S.C.R. 533, 179 D.L.R. (4th) 193 (Marshallll; and R. v. Marshall;R. v. Bernard, 2005 SCC 43, 120051 2 S.C.R. 220, 255 D.L.R. (4th) 1. Of course, the use of narrowly defined and historically limited descriptions of Aboriginal rights under the treaties suited the Crown drafters, who proceeded to define Aboriginal land releases in the broadest possible terms, with few or no prescribed limits on the future activ- ities permitted to the Crown and to settler populations and resource companies. Concerns about the speci- ficity and historicity of the rights guaranteed to Aboriginal peoples under the historical treaties led the Royal Commission on Aboriginal Peoples to recommend a formal process for updating those treaties in accordance with the "spirit and intent" of the treaties. See the recommendations in Report of the Royal Commission on Aboriginal Peoples: Restructuring the Relationship, vol. 2 (Ottawa: Canada Communications Group, 1996) at 64-93 [RCAP Report]. RESPECT FOR TREATY RIGHTS IN ONTARIO: THE LAW OF THE LAND? 419
the treaty.4 Where necessary, the courts will resort to the presumed perspective of an "officious bystander" to ascertain the parties' likely intention. However, in most, if not all of the historical treaties, even where the parties appeared to have agreed on the terms reduced to writing by the Crown, the presence of language, cultural and experiential differences during the negotiations raises questions for the independent observer about how to define the parties "common intent."46 The understandings of the Mississaugas and Chippewas in entering early land treaties in Upper Canada are a case in point. At the time of these treaties, the Aboriginal peoples involved likely did not and could not conceive of the practical implications of mass European style set- tlement on their traditional lands.47 Thus, it seems likely that, in some cases, funda- mental terms regarding each party's future rights may never in fact have been the subject of a "common intent"-each party holding different views on the paths that 4 would be permitted to them in the future. 1 The significance of this problem in relation to the historical treaties did not escape 2008 CanLIIDocs 112 the attention of Crown negotiators. A particularly eloquent example of' such recognition occurred in the context of Treaty 9. Recall that Treaty 9, which was negotiated in 1905-1906, was one of the last treaties to be signed in Ontario. A year later, Treaty Commissioner Duncan Campbell Scott reflected on the treaty negotiations as follows:
ITlhe Indian people were to make certain promisesl and we were to make certain prom- ises, but our purpose and our reasons were alike unknowable .... What could they grasp of the pronouncement on the Indian tenure which had been delivered by the law lords of the Crown, what of the elaborate negotiations between a dominion and a province which had made a treaty possible, what of the sense of traditional policy which brooded over the whole? Nothing. So there was no basis for argument. The simple facts had to be stated and the parental idea developed that the King is the great father of the 49 Indians, watchful over their interests, and ever compassionate.
45. Marshall I, ibid. at para. 78. 46. See Gordon Christie, "Justifying Principles ofTreaty Interpretation" (2000) 26 Queen's L.I. 143 JChristie, "Treaty Interpretation"]. See also Leroy Little Bear, "Aboriginal Paradigms: Implications for Relationships to Land and Treaty Making" in Wilkins, "Advancing Aboriginal Claims," supra note 24, 26 at 37, where Little Bear describes a key difference in Aboriginal and settler perspectives on the issues at stake in treaty-making, as follows: "[The Aboriginal perspectivel results in viewing land as a place for relating to 'all my relations.' The relational expectation arising out of this philosophy is that strangers who come into the territory of a Plains Indian tribe will respect the relational network in place in the territory. In contrast, Europeans, with their linear, dichotomous ways of thinking, used the British Crown as their referent, believing that it was the source of title for lands in the Americas .... " 47. See Surtees, "Indian Land," supra note 13 at 9-10; Donald B. Smith, Sacred Feathers: The Reverend PcetcrJones (Kahkewaquonab)) &the Alississauga Indians (Lincoln and London: University of Nebraska Press, 1987) at 24-27. 48. See Walters' analysis of this phenomenon in connection with the "Covenant Chain" set of treaties between the Crown and the Haudenosaunee: Walters,"Covenant Chain," supra note 16 at 128-29, where Walters notes that, not only did both sides have different understandings of how their relationship affected the sover- eignty of each, but the Crown's officials alone held diverse views on the issue and those views evolved over the years covered by the treaties. The Supreme Court has recognized this challenge to the task of finding common intent in a case where the negotiators apparently knew they had failed to provide a clear blueprint for the future: see Alikisewr, supra note 6 at paras. 25-27. 49. Morrison, supra note 23 at 32. 420 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 39:2 39:2
After examining the evidence in relation to these negotiations, the historian James Morrison concluded that differences in the parties' understandings of what the Crown proposed, together with the Commissioners' tact, meant that the Aboriginal negotiators seemed to have no conception of the extent to which the written treaty document purported to extinguish their rights to hunt, fish, trap and manage their traditional lands.50
III. PAST CROWN TREATY POLICIES IN ONTARIO
If the historic treaty-making process itself sowed the seeds of conflict about the rights created by the treaties, it cannot be said that the Crown was long unaware of the caus- es and nature of such interpretative conflicts. Duncan Campbell Scott's comments on the Indians' dependence on the Crown's goodwill, rather than on the terms ofTreaty 2008 CanLIIDocs 112 9, and the parties' lack of a common understanding on the purposes of that treaty were made soon after the treaty was signed. Explicit Aboriginal protests that settler or government activities violated their understanding of their treaty rights were wide- spread in the 19th century, beginning with the Mississaugas' protests at the beginning of the century about settler interference with their hunting rights,"' to the protests of the Saugeen Anishinabek about settler interference with their fishing rights under their treaty with the Crown in 1836,52 to the protests of the Chief at Osnaburgh in 1913 that the province was violating his people's treaty right to sell the furs they trapped." As for ambiguities in the treaty texts, even the question of which level of government had the right to take up lands under the treaties-whether for settlement or for 4 resource development-was left open by a decision of the Privy Council in 1888.1 This important question, together with the question of the circumstances in which a government can exercise this right, is still the subject of legal controversy today."5 The history of the Crown's treatment of treaty rights prior to the enactment of the Constitution Act, 1982 has been detailed elsewhere, as have the Crown's historic policies regarding access to resources on treaty lands.5 6 No ongoing mechanisms were
50. Ibid. at 46-47. 51. Ibid. at 48. 52. See Mark D. Walters, "Aboriginal Rights, Alagna Cata and Exclusive Rights to Fisheries in the Waters of Upper Canada" (1998) 23 Queen's L.J. 301 at 306-312 [Walters, "Aboriginal Rights"]. 53. Morrison, supra note 23 at 64. 54. St. Catherine's Milling &Lumber Co. v. R. (1889), 14 A.C. 46, 10 C.R.A.C. 13 (P.C.) [St. Catherine's Milling cited to A.C.1. 55. See Imai, "Treaty Lands," supra note 25; Keewatin, supra note 39. 56. See e.g. RCAP Report, supra note 44 at 421-548. See also Frank Tough, Ontario's Appropriation of Indian Hunting: Provincial Conservation Policies vs. Aboriginal and Treaty Rights, ca. 1892-1930 (Toronto: Ontario Native Affairs Secretariat, 1991); jean Teillet, "The Role of Natural Resources Regulatory Regime in Aboriginal Rights Disputes in Ontario," CD-ROM: Hon B. Sidney Linden, Report of the Ipperwash Inquiry: Research Papers and Part), Projects (Ottawa: Queen's Printer, 2007), online:The Ipperwash Inquiry
established by either government to resolve treaty disputes or to clarify the meaning of treaties where ambiguities were known to exist. The Crown's primary energies in defining treaty rights seem to have focused on court battles between the province and the federal governments over who was entitled to benefit from resource licenses issued on surrendered lands. 57 After some early efforts by the Crown to protect Aboriginal lands and fisheries,5" both the federal and provincial governments came to see even explicit treaty promises as covenants that withered in the face of legislation that advanced inconsistent government policies.59 Thus, through the 19th and most of the 20th centuries, the provincial and federal governments passed game and fish laws that did not give effect to treaty harvesting promises.' During this time, Aboriginal people in Ontario were regularly prosecuted when they attempted to exercise what they understood to be their treaty harvesting rights.6 Indeed, in at least two cases, despite express treaty harvesting promises made only years earlier, the government of Ontario established large game preserves surrounding lands selected for reserve, mak- 2008 CanLIIDocs 112 ing all fishing and hunting there illegal .62Finally, although hunting, fishing and trading in game and fish had long been the mainstay of First Nation economies, it appears that, in general, Aboriginal peoples were not permitted to hunt or fish commercially and were largely excluded from allocations of commercial hunting and fishing licenses.63
57. This was the motive for litigation in St. Catherine's Milling,supra note 54 and Ontario Mining Company, Limited, and Attorney-Generalfor Canada v. Seybold and Others and Attorney-Generalfor Ontario, 119031 A.C. 73, 13 C.R.A.C. 75 (P.C.) ISeybold]. In neither of these cases did Aboriginal treaty signatories participate in the litigation. 58. SeeWalters,"Aboriginal Rights,"supra note 52 at 311. In 1850, the Legislative Assembly of the Province of Canada enacted legislation to prevent settler encroachment on Indian lands: An Act for the protection of the Indians in Upper Canada from imposition, and the property occupied or enjoyed by them fom trespass and injury, S. Prov. C. 1850, c. 74, 59. For the attitudes of federal and proivincial officials at the end of the nineteenth century regarding treaty rights to fishing and hunting, see RCAP Report, supra note 44 at 490-499;Teillet, supra note 56 at 24-28. 60. Even the present Fish and Wildife Conservation Act, 1997, S.O. 1997, c. 41, makes no provision for treaty rights. Since 1952, the enactment ofs. 87 (now s. 88) of the Indian Act, R.S.C. 1985, c. 1-5, hasprevented provincial legislation from infringing upon treaty rights in a significant manner: see Morris, supra note 35 at paras. 95-100. 61. One particularly tragic example is the case of Pierre Hunter, an Ojibwe from Sioux Lookout who was jailed in 1915 for selling moose. He was then released from prison with no money some 200 miles from home and froze to death trying to make his way back. Asked to file a report after the death, the Ontario game officer who had arrested him reportedly indicated that he "had no regrets, as 'sending him to jail done him no harm.. .but it (lidthe Indians around here considerable good.'" See Sidney L. Harring, "'The Liberal Treatment of Indians': Native People in Nineteenth Century Ontario Law" (1992) 56 Sask. L.R. 297 at 327. For more information on the effect of Ontario's game and fish policies on Aboriginal people, see Tough, supranote 56. 62. This was the situation of the Lac La Croix First Nation in Treaty 3 and the Brunswick House First Nation in Treaty 9. The Brunswick House community, unable to survive without hunting and persuaded that it would receive another reserve, was induced to surrender its reserve. It spent the next 19 years without any land. See DavidT. McNab, "The Chapleau Game Preserve and New Brunswick House Indian Reserve: No. 76 Treaty 9"(research report prepared for the Ontario Native Aff'airs Secretariat, 1980). 63. For a general review of the harm caused to First Nations hy Ontario's historical game and fish policies, see RCAP Report, supra note 44 at 498-499;Tough, supra note 56. 422 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 39:2 39:2
Access to other resources on their traditional lands, like timber and minerals, was also an important focus of the First Nations in entering treaties, as the govern- ment negotiation record of the RobinsonTreaties andTreaty 3 makes clear. However, First Nations in Ontario were largely excluded from the wealth generated by these resources on their traditional lands. 64 Indeed, in many cases that exclusion extended even to the small parcels of land allotted for reserves. In 1874, for example, the fed- eral cabinet instructed the Crown officials responsible for determining the location of the reserves under Treaty 3 to ensure that they did not include "any land known • . . to be mineral lands" or any lands for which mining patents had been sought by 65 either the provincial or federal government. The first major court cases interpreting treaties offered little solace to First Nations seeking to enforce the Crown's treaty promises. In 1888, the Privy Council decided in St. Catherine's Milling that the First Nation signatories to Treaty 3 retained no proprietary interest in the traditional lands covered by the treaty and retained no 2008 CanLIIDocs 112 rights to the timber on those lands. 66 Further, although the Privy Council declared that Parliament had the exclusive jurisdiction to regulate treaty hunting and fishing rights, the court did not suggest that it had any obligation to use this power to imple- ment its treaty promises. 67 Fifteen years later, in another case considering the same treaty, the Privy Council ruled that the Indians did not even have an enforceable right to obtain the reserves that had been promised to them under the treaty or to profit 68 from valuable minerals taken from their allotted reserves. Until the latter half of the 20th century, several obstacles impeded Aboriginal access to the courts. In addition to the fact that the spending of band funds was con- trolled by the federal government, federal control even extended, from 1927 to 195 1, to the First Nations' ability to engage legal counsel. During that period, it was a summary conviction offence for a lawyer to take money from an Indian band for the 69 advancement of any claim, unless the federal government consented in advance.
64. See e.g. Ontario, Interim Report of the Royal Commission on the Northern Environment by Mr. Justice E.P. Hartt (Toronto: Royal Commission on the Northern Environment, 1978) IRoyal Commission Interim Report]. For a description of the history of Aboriginal use of the forests and their subsequent exclusion from Ontario timber opportunities, see Decision of the Environmental Assessment Board on the OMNR Timber Class Environmental Assessmentfor Timber Management on Crown Lands in Ontario (May 1994), Environmental Assessment Board Decision EA-87-02, online: OMNR
The cumulative result: since the signing of the treaties, the main forum in Canada for judicial determinations of First Nations' treaty rights has been the criminal courts, in the context of prosecutions of individual First Nation members. With the arrival of constitutional protection for Aboriginal and treaty rights in 1982, it appeared that the rules had changed. Treaty relationships, which had for so long been pushed to the margins of Canadian law and policy, might now be rein- vigorated. The governments that had ratified the protection of treaty rights might now be inclined to address First Nation concerns that the Crown had failed to hon- our the spirit and intent of the treaties. At the least, constitutional recognition of existing treaty rights arguably meant that the Crown would be obliged to deal with its treaty promises, regardless of whether those promises were enforced by existing federal legislation. Post-1982 judicial decisions have done much to create incentives for the
Crown to resolve section 35 claims through dialogue. In Sparrow, the first decision of 2008 CanLIIDocs 112 the Supreme Court to interpret section 35 of the Constitution Act, 1982, the Court made clear that the rules of the game had indeed changed. Chief Justice Dickson declared that "Ibly giving aboriginal rights constitutional status and priority, Parliament and the provinces have sanctioned challenges to social and economic pol- icy objectives embodied in legislation to the extent that aboriginal rights are affect- ed."70 In subsequent decisions regarding treaty rights, the Supreme Court has offered considerable guidance regarding what constitutes a treaty and how treaties are to be interpreted. It is now clear, moreover, that the federal and provincial governments are legally obligated to address even reasonably grounded claims to treaty rights through consultation and, where appropriate, accommodation of Aboriginal interests if the government proposes to make a decision that would significantly interfere with the claimed rights.7 Finally, and perhaps most importantly in terms of the Crown's positive obligations to implement the rights guaranteed by section 35, the Supreme Court of Canada has declared that "Itihe honour of the Crown requires that these 72 rights be determined, recognized and respected." In addition to the principles set out by the Supreme Court since 1982 on the application of treaty rights, there has been considerable academic analysis of the
70. Sparrow, supra note 4 at 1110. 71. Mikisew, supro note 6. 72. Haida, supra note 6 at para. 25, McLachlin C.j. While this comment focuses on the Crown's obligations in claims of Aboriginal rights or title, it is clear that the same principle must apply to questions about existing treaty rights. Earlier, at para. 19, the Chief justice notes: "The honour of the Crown also infuses the processes of treaty making and treaty interpretation. In making and applying treaties, the Crown must act with honour and integrity, avoiding even the appearance of'sharp dealing.'" As well, at para. 20: "It is a corollary of s. 35 that the Crown act honourably in defining the rights it guarantees and in reconciling them with other rights and interests. This, in turn, implies a duty to consult and, if appropriate, accommodate." [emphasis addedj. 424 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 39:2 39:2
nature of those principles and their implications.73 The period since 1982 has also seen considerable judicial and academic discussion of the respective authority and responsi- bility of the federal and provincial governments to regulate and to implement treaty rights.74 While such analysis is critically important for the future elaboration of the treaty relationship, it is equally important that future discussion be grounded in an under- standing of the current treatment of treaty rights by legislation and government policies. Accordingly, the remainder of this article Will focus on the extent to which the federal and provincial governments have actually moved since 1982 to define and imple- ment treaty rights in Ontario. Considerable attention will be drawn to the activities of the province for two reasons. First, the federal government has generally failed to inter- vene in Ontario to implement treaty rights through either legislation or policy. Second, in the absence of federal intervention, provincial activities have considerable potential to affect the implementation of treaty rights and treaty rights claims, particularly in the area of resources and land use. 2008 CanLIIDocs 112
IV. CURRENT CROWN TREATY POLICIES IN ONTARIO
It is clear that the federal government has the exclusive constitutional jurisdiction to regulate the exercise of treaty rights. 75 As we have seen, the federal government also has a constitutional obligation when making and implementing treaties to do so in accordance with the "honour of the Crown."76 Nonetheless, there is currently no fed- eral policy applicable in Ontario for the determination or protection of existing treaty rights. While the federal government does have a policy for negotiating the res- 77 olution of claims relating to its historic treatment of First Nation lands and assets,
73. On the constitutional principles applicable to treaty interpretation and the regulation of treaty rights, see e.g. Bruce H.Wildsmith, "Treaty Responsibilities: A Co-Relational Model" (Special Ed. 1992) 26 U.B.C. L. Rev. 324; Henderson, supra note 20; Leonard 1. Rotman, "Taking Aim at the Canons of Treaty Interpretation in Canadian Aboriginal Rights Jurisprudence" (1997) 46 U.N.B.L.J. II at 13; Macklem, supra note 25; Catherine Bell and Karin Buss, "The Promise of Marshall on the Prairies: A Framework for Analyzing Unfulfilled Treaty Promises" (2000) 63 Sask. L. Rev. 667; Christie, "Treaty Interpretation," supra note 46; lmai, "Treaty Lands," supra note 25. 74. For the Court's guidance on the issue of the respective jurisdictions and responsibilities of the federal and provincial governments to address treaty and aboriginal rights, see e.g. Dick v. R., 11985] 2 S.C.R. 309 at 323-330, 23 D.L.R. (4th) 33; Saanichton Marina Ltd. v. Tsawout Indian Band (1989), 57 D.L.R. (4th) 161, 36 B.C.L.R. (2d) 79 (C.A.); Delgamuukw Y. British Columbia, [19971 3 S.C.R. 1010 at paras. 172-183, 153
D.L.R. (4 a) 193 [Delgamuukw cited to S.C.R.1; Paul v. British Columbia (Forest Appeals Commission), 2003 SCC 55, 120031 2 S.C.R. 585 at paras. 11-31, 231 D.L.R. (4th) 449; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31,1200212 S.C.R. 146 at paras. 51-77, 210 D.L.R. (4th) 577; Haida, supra note 6; Taku River, supra note 6. For an analysis of the jurisdictional issues, see Nigel Bankes, "Delgamuukw, Division of Powers and Provincial Land and Resource Laws: Some Implications for Provincial Resource Rights" (1998) 32 U.B.C. L. Rev. 317; Kerry Wilkins, "Of Provinces and Section 35 Rights" (1999) 22 Dal. L.J. 185; lmai, "Treaty Lands,"supra note 25. 75. St. Catherine's Milling, supra note 54 at 59. 76. Haida, supra note 6 at para. 20. 77. Indian Affairs and Northern Development, Outstanding Business: A Native Claims Policy: Specific Claims (Ottawa: Minister of Supply and Services Canada, 1982). RESPECT FOR TREATY RIGHTS IN ONTARIO: THE LAW OF THE LAND? 425
that policy does not extend to treaty grievances relating to harvesting rights, access to resources, or to other treaty disputes. In 1996, the Royal Commission on Aboriginal Peoples conducted an extensive review of treaty-making and the record of treaty enforcement in Canada. The Commission made detailed recommendations to the federal government that it exer- cise its jurisdiction to establish a tribunal, in partnership with Aboriginal peoples, to implement the spirit and intent of the treaties. 8 The federal Crown has not acted on those recommendations. Current federal policy does not provide for the government to reconsider the status of its treaty relationship with First Nations or to negotiate modern implementation of the original spirit and intent of the treaties."9 In fact, the only permanent forum in Ontario for discussing issues of mutual concern to First Nations and the Crown, the Indian Commission of Ontario, was closed by a unilat- eral federal government decision in 2000.80 In sum, Canada does not have a formal policy in relation to implementation of treaty rights in Ontario and there are no 2008 CanLIIDocs 112 negotiations in progress aimed at addressing differences of view about the meaning of treaty promises in Ontario. 81 Like the federal government, the province has no general framework designed to clarify and protect the rights contained in treaties. As will be seen, since 1991, the province has had an "Interim Enforcement Policy" 2 designed to protect Aboriginal food harvesting from prosecution, yet it has no general policy for determining, iden- tifying or protecting other treaty rights. Nor has the province established any negoti- ations for that purpose with the Crown's treaty partners in Ontario. Instead, certain Aboriginal interests in the use of their traditional lands have been the subject of spo- radic protection by a variety of provincial ministries. Moreover, Ontario's land claims policy, like the federal claims policy, does not address claims of existing treaty rights.83 With the exception of the Interim Enforcement Policy and a recently issued
78. RCAP Report, supra note 44. 79. The federal "specific claims" policy provides for Canada to recognize claims that disclose a "lawful obliga- tion," defined to include "Itihe non-fulfillment of a treaty or agreement between Indians and the Crown": Indian Affairs and Northern Development, supra note 77 at 20. However, in practice, the government does not accept claims relating solely to the denial of treaty harvesting rights or other treaty rights unrelated to land or assets. See Indian Commission of Ontario, Discussion Paper Regarding First Nation Land Claims in Indian Claims Commission, Indian Claims Commission Proceedings: Special Issue on Land Claims Reform (Ottawa: Canada Communications Group, 1995) 157 at 218-220. The government's approach has not changed in this regard since the publication of the Indian Commission's report. Personal communication: Ralph Brant, Director- General, Specific Claims Branch (July 3, 2008). 80. For a brief description of the history of this unique tripartite body, see lpperwash Inquiry, vol. 2, supra note 3 at63-64, 67-68. 81. Interview of SandraWahegijig, Treaty Policy Directorate, Department of Indian and Northern Affairs Canada (15June 2007). 82. This policyis discussed below, see Interim Enforcement Policy,infra note 85. 83. See Ministry of Aboriginal Affairs, "Aboriginal Affairs: Negotiations," online: Ontario Ministry of Aboriginal Affairs
set of draft consultation guidelines,' it does not appear that any provincial ministry has adopted a detailed proactive approach, through legislation or otherwise, to guide its managers and personnel through their constitutional obligations where their deci- sions might affect existing Aboriginal or treaty rights.
A. Hunting and Fishing Rights Off-Reserve Following the decision in Sparrow, the Ministry of Natural Resources ("MNR") issued its Interim Enforcement Policy on Aboriginal hunting and fishing.85 The terms of this policy were finalized in 1991 after discussions between the MNR and First Nations representatives. The policy provides that Aboriginal8 6 persons harvesting game or fish for personal consumption or social or ceremonial purposes in their treaty areas or traditional lands will generally not be prosecuted. Exceptions are provided for hunt- ing in an unsafe manner, hunting or fishing in a way that puts conservation or habitat 2008 CanLIIDocs 112 at risk, and hunting or fishing on private land without the consent of the owner.8 7 The Policy also provides for the MNR Deputy Minister to screen all proposed MNR enforcement activities against Aboriginal people who appear to be harvesting game or fish for commercial purposes.8 By its terms, the Interim Enforcement Policy was clearly intended to be an interim measure for recognizing Aboriginal and treaty rights. The Policy expressly provided for immediate negotiations with Aboriginal people across the province about the MNR's enforcement procedures. It also committed the province to enact appropriate legislation regarding Aboriginal harvesting of wildlife and fish. 9 However, when the province enacted a new Fish and Wildlife Conservation Act,90 neither it nor the detailed regulations under it made any reference to treaty or Aboriginal harvesting rights, nor does the legislation make any special arrangements to protect Aboriginal harvesting. The current situation, then, is that Ontario's fish and game laws do not gener- ally recognize Aboriginal harvesting rights and the province's enforcement guidelines guarantee protection only for harvesting for food, social, or ceremonial purposes. The
84. The guidelines are discussed below, see Guidelines, infra note 130. 85. Ontario, Ministry of Natural Resources, Interim Enforcement Policy on Aboriginal Right to Hunt and Fishfor Food (Toronto: Ministry of Natural Resources, 1991) lInterim Enforcement Policy]. 86. In response to the ruling in R. v. Powley 2003 SCC 43, 120031 2 S.C.R. 207, [200314 C.N.L.R. 32 1, the Interim Enforcement Policy was amended in 2005 to include Aboriginal people other than status Indians. For a general discussion of the Policy and its evolution, see Ipperwash Inquiry, vol. 2, supra note 3 at 120-23. 87. Interim Enforcement Policy, supra note 85, ss. I-2. 88. Ibid., s. 3(a). 89. See the preamble and s. 6 of the Interim Enforcement Policy, ibid. 90. Fish and Wildlife Conservation Act, 1997, supra note 60, amended in 2002, replaced the earlier Game and Fish Act, R.S.O. 1990, c. G.1. RESPECT FOR TREATY RIGHTS IN ONTARIO: THE LAW OF THE LAND? 427
guidelines do not protect harvesting intended to provide a moderate subsistence to Aboriginal people, a right that has been recognized in various specific contexts by a series of court decisions beginning in the early 1990s.91 It appears that, since 1990, the province has frequently resorted to prosecutions of Aboriginal people, rather than consultation in seeking to clarify the existence and extent of treaty rights. On at least three occasions since the Interim Enforcement Policy was adopted, Ontario courts have criticized the province's limitation of Aboriginal harvesting opportunities and its 92 reliance on prosecution in relation to Aboriginal constitutional rights. It should be noted that since the 1990s, the MNR has implemented a number of specific initiatives in various parts of the province to allocate commercial fishing opportunities to First Nations. For example, following the court decision in Jones, the MNR acquired one hundred percent of the commercial fishing quota around the Bruce Peninsula and allocated it to the Saugeen Ojibway First Nations. In addition, the MNR has allocated fifty percent of the commercial fishing quota in the north 2008 CanLIIDocs 112 channel of Lake Huron to local First Nations. Finally, First Nations now have virtual- ly all of the commercial fishing quotas on northern Ontario lakes, including lakes Nipissing, Nipigon and Lake of the Woods. 93
B. Forestry Rights Lack of access to commercial forestry opportunities has long been a source of griev- ance for First Nations in Ontario. At the time they first met Europeans and when most of the treaties in Ontario were signed, Aboriginal people lived off the resources of the forest. Medicinal plants, berries, wood for fuel, shelter, hunting tools, canoes and trade were all taken from the forest. The Ojibwe of Northern Ontario, for exam- ple, were actively involved in selling lumber to non-Aboriginal enterprises prior to enteringTreaty 3.94 Although Aboriginal people argue that the signing of treaties was intended only to permit European settlement and a sharing of the resources on their traditional lands, 95 it appears that Aboriginal people have been largely excluded from
91. See for example Marshall I, supra note 15 (decided in the context of a Maritime treaty); R. v. Jones (1993), 14 O.R. (3d) 421, 1199313 C.N.L.R. 182 (Prov. Div.) [Jonesl (Aboriginal right of the Saugeen Ojjbway to fish commercially); R. v.Jackson, 1199214 C.N.L.R. 121 (Ont. Ct. (Prov. Div.)) [Jackson] (fishing rights of the Kettle & Stony Point First Nation). 92. For commentary on Ontario's enforcement tactics, see Jackson, ibid. at 138; R. v. Powley (2000), 47 O.R. (3d) 30 at para. 87, 120001 2 C.N.L.R. 233 (Sup. Ct. J.);Joncs, ibid. at 448-52. 93. Personal communication: Dave Loftus, MNR District Office, Peterborough. (June 2007). 94. Class Environmental Assessment, supra note 64 at 347-49. After four years of hearings, the Board's order approved the MNR's undertaking of timber management in Ontario, subject to 115 conditions. These condi- tions are legally binding on the government. The Approval, which lasted fbr 9 years, was revised and renewed in 2003. Condition 77 remains (now renamed Condition 34). 95. See e.g. the testimony of Chief George Kakeway before the Environmental Assessment Board, Class Environmental Assessment, ibid. at 347 and the Board's findings at 351-52. 428 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 39:2 39:2
the Ontario forestry industry since the treaties were signed. This was the conclusion of the Environmental Assessment Board in its 1994 environmental assessment of for- est management on Crown lands in Ontario:
We are convinced by the evidence we have discussed in this chapter that Aboriginal com- munities have historically been and are today excluded from sharing in the social and economic benefits accruing to non-native communities from the planning and conduct of 96 timber operations on Crown land.
The Board noted that the province had not even identified Aboriginal com- munities as stakeholders with an interest in forest management in its early drafts of the environmental assessment. 97 In the end, the Environmental Assessment Board ordered, as a condition of its assessment approval, that MNR District Managers nego- tiate with Aboriginal peoples to "implement ways of achieving a more equal partici- pation by Aboriginal peoples in the benefits" of forest management planning.98 The 2008 CanLIIDocs 112 Board's concerns extended beyond the lack of proportional participation by Aboriginal people in the forest industry. According to the Board:
We are convinced, however, that the desperate situation of our First Nations and Aboriginal communities cannot improve unless the Ontario and federal governments engage in serious negotiations to resolve treaty and Aboriginal rights and land claims by 99 Aboriginal peoples in the Area of the Undertaking.
Although the Board found that individuals within the MNR had made "tremendous efforts" to assist First Nations to develop economic opportunities, it noted that negotiations with Aboriginal people regarding their constitutional rights "have been dragging on for years."' ° The Board recommended that Ontario and Canada do "whatever is necessary to conclude various processes under way to define treaty and Aboriginal rights.'' The Board also recommended that Ontario review its timber licensing policy as it relates to Aboriginal peoples, investigate any barriers to their obtaining timber licenses, and consider what remedies may be required.'02 Since the Board's order, it appears that Ontario has established no negotia- tions, either locally or provincially, to determine the treaty rights of Aboriginal com-
96. Ibid. at 372. The Board also concluded that Canada's historic policies had unduly restricted First Nations' access to timber on their own reserves: ibid. at 353-355. For more information on Canada's historic prac- tices in relation to timber cutting on reserve lands, see Mark Kuhlberg, "'Nothing It Seems Can Be Done About It': Charlie Cox, Indian Affairs Timber Policy, and the Long Lac Reserve, 1924-40" (2003) 84(l) The Canadian Historical Review 33. 97. Class Environmental Assessment, ibid. at360. 98. Ibid. at 374. 99. Ibid. at 375. 100. Ibid. at 375. 101. Ibid. at 375. 102. Ibid. at 375-76. RESPECT FOR TREATY RIGHTS IN ONTARIO: THE LAW OF THE LAND? 429
munities in relation to the forestry industry.The Crown Forest SustainabilityAct, 1994101 provides that, at a minimum, the Act not derogate from Aboriginal or treaty rights recognized by the Constitution and it permits agreements with First Nations in the area of forestry planning.1' 4 The MNR has developed a consultation program for Aboriginal communities early in the timber management process to better protect Aboriginal cultural values in the course of timber harvesting, and now includes Aboriginal representatives on forest management planning teams.I' Aimed at pro- tecting medicine plants and unique Aboriginal values during timber harvesting, the program does not address the issue of treaty rights.
C. Other Provincial Decisions That May Affect Traditional Uses of Treaty Lands There are a large number of other areas in which provincial decisions about the man- agement of lands in Ontario can affect the ability of Aboriginal peoples to carry on 2008 CanLIIDocs 112 traditional activities, including activities that may be protected by treaty rights. These include decisions by the MNR to set aside provincial parks and to regulate the use of Crown lands. The creation of a provincial park, for example, will normally limit or prohibit traditional harvesting activities. Also, decisions by environmental tribunals 0 6 may authorize land developments or industrial projects that will alter the habitat.1 Land use approvals issued under provincial planning legislation may have the same effect. Decisions by provincial Conservation Authorities may affect watersheds in areas used by Aboriginal people. In none of these cases do the applicable legislation or ministry policies currently take into account, as a matter of course, a need to assess possible impacts on Aboriginal peoples' enjoyment of their constitutional rights to harvest plants, fish or wildlife. 107
103. S.0. 1994, c. 25. 104. Ibid., ss. 6, 23. 105. The main elements of this consultation program were approved by the Board in its "Reasons for Decision," Class Environmental Assessment, supra note 64 at 370-371. 106. The Ministry of the Environment is responsible for conducting environmental assessments where significant undertakings are proposed in the province. The relevant legislation, the Environmental AssessmentAct, R.S.O. 1990, c. E-18, appears to make no special provision for notice to Aboriginal groups where a proposed undertaking might interfere with treaty rights. Nor does the Act refer to the existence of treaty rights as a factor to be considered in decisions under the Act. Indeed, during the 1994 Forest Management Assessment described above, the province argued that the Environmental Assessment Board had no jurisdiction to con- sider Aboriginal or treaty rights: see Class Environmental Assessment, ibid. at 372. 107. One apparent exception is a general strategy announced by Ontario in 1999 to guide the management of Crown lands covering 45 percent of the province. The document outlining the strategy indicates that Ontario is committed to consulting with Aboriginal peoples where land use decisions may affect existing Aboriginal and treaty rights. It states that Ontario intends, among other things, to consult with local com- munities before new land areas come under protection. See MNR, "Ontario's Crown Land Use Policy Atlas: Approved Land Use Strategy," online: OMNR
It should be noted that some provincial ministries, particularly the MNR, have nevertheless engaged in a number of initiatives to recognize specific interests of indi- vidual First Nations in the use of their traditional lands. Thus, MNR officials have negotiated co-management or "co-existence" agreements with certain First Nations, as at Quetico Provincial Park. Recently, MNR officials have also organized First Nation participation in deer culls at certain provincial parks (including the Rondeau, Pinery and Algonquin Parks). In another initiative, the MNR has recognized the Curve Lake First Nation as the custodian of historic Aboriginal petroglyphs, or "Teaching Rocks," at the nearby Petroglyphs Provincial Park. 10 All of these initiatives demonstrate sensitivity to particular First Nations' relationships with their tradition- al lands. They were not, however, the product of a centralized Ontario government policy to protect First Nations' activities on their traditional lands or to protect treaty rights across the province. 2008 CanLIIDocs 112
V. DEFINING AND IMPLEMENTING TREATY RIGHTS: THE CROWN'S OUTSTANDING OBLIGATIONS
Between 1982 and 1985, the provincial and federal governments engaged in a com- prehensive legislative review, pending the proclamation of section 15 of the Canadian Charter of Rights and Freedoms.'"9 That review was intended to ensure that all provin- cial and federal statutes were consistent with the requirement that all individuals be treated equally under the law and receive the equal benefit of the law.1 10 Further, key judicial decisions about the scope of Charter rights have been deemed by both gov- ernments to necessitate systematic legislative review to ensure their implementation. In 1999, for example, the governments of Ontario and Canada reviewed their exist- ing legislation and introduced omnibus amendments in order to ensure that their laws fully reflected the newly declared rights of same sex couples recognized in M. v. H. "I In contrast, neither the federal nor the provincial government has engaged in a simi- lar process to ensure that applicable legislation is compatible with, and applied in a manner that is consistent with, existing treaty rights in Ontario. Nor has either gov-
108, For more information on the roles of the MNR and the Curve Lake First Nation in this park, see Ontario Ministry of Natural Resources, News Release "Ontario Opens New Interpretive Centre at Petroglyphs Provincial Park" (27 September 2002), online: OMNR < www.mnr.gov.on.ca / MNR /csb /news /sep27nrO2.html>. 109. Part I of Constitution Act, 1982, supra note 2; Peter W. Hogg, ConstitutionalLaw of Canada, 2004 student ed. (Scarborough: Thomson Carswell, 2004) at 711, 1083. 110. Hogg, ibid. See also Constitution Act, 1982, ibid., s. 15. III. 119991 2 S.C.R. 3, 171 D.L.R. (4th) 577.The provincial Act, which amended 67 statutes, was entitled Amendments Because of the Supreme Court of Canada Decision in A. v. H. Act, 1999, S.O., 1999, c. 6. In 2000, the federal Parliament amended dozens of its own statutes with Bill C-23, An Act to modernize the Statutes of Canada in relation to benefits and obligations, 2d Sess., 36th Parl., 2000 (assented to 29 June 2000), S.C. 2000, c. 12. RESPECT FOR TREATY RIGHTS IN ONTARIO: THE LAW OF THE LAND? 431
ernment established policy mechanisms aimed at identifying and defining the scope of treaty rights in the province. The federal government, with exclusive constitution- al jurisdiction to regulate treaty rights," 2 has taken no steps to implement those rights in Ontario. The province, whose jurisdiction over natural resources and public lands makes its activities most likely to come into conflict with claimed treaty rights, has established no institutional means outside the courts for addressing treaty har- vesting claims. If the affirmation of existing treaty rights in the Constitution Act, 1982 did not already make this clear, the Supreme Court of Canada clarified in Haida that the Crown must act honourably in implementing treaty rights and addressing Aboriginal claims." 3 In Ontario, the extent of protection offered by treaty promises to Aboriginal people has never been systematically investigated. Worse, although dis- putes regarding the rights intended to be guaranteed under the treaties were inevitable from the outset, the primary mechanism adopted by the Crown to resolve 2008 CanLIIDocs 112 those disputes has been the use of criminal prosecutions against Aboriginal persons seeking to exercise their rights. "4 Resort, as a matter of course, to arresting individ- uals who attempt to exercise their constitutional rights hardly seems an honourable approach to clarifying the uncertainties inherent in historical treaties, One can legit- imately debate what kind of ongoing Crown initiatives would be sufficient to fulfil its obligation to act honourably in defining and implementing treaty rights. However, it is difficult to argue that failure to engage in any such initiatives will suffice. Viewed in this light, recommendations that the Crown establish ongoing mechanisms to effect treaty implementation need to be carefully considered as a legal, and not simply political, imperative. This article has noted the concerns raised by the Royal Commission on the Northern Environment" 5 and by the Environmental 6 Assessment Board" 1 about the federal and provincial governments' failure to deal with treaty rights claims. The Canadian Bar Association's Committee on Aboriginal Rights in Canada" 7 and the Royal Commission on Aboriginal Peoples" 8 have echoed these criticisms, in both cases recommending that the federal government create a Royal Commission tasked with supervising a process to implement the spirit and
112. Aorris, supra note 35. 113. Haida, supra note 6 at para. 17. 114. For two recent examples, see R. v. Mleshake, 2007 ONCA 337, 85 O.R. (3d) 575, 219 C.C.C. (3d) 175; R. v. Shipman, 2007 ONCA 338, 85 O.R. (3d) 585, 219 C.C.C. (3d) 161. Both cases involved the issue of whether the proper interpretation of a treaty protected hunting within the treaty area by an Aboriginal per- son from a different treaty territory. 115. See Royal Commission Interim Report, supra note 64. 116. See Class Environmental Assessment, supra note 64. 117. Report of the Canadian Bar Association on Aboriginal Rights in Canada: An Agenda for Action (Ottawa: Canadian Bar Association, 1988) at 58-59. 118. RCAP Report, supra note 44 at 48-94. 432 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 39:2 39:2
intent of the treaties. The recent Ipperwash Inquiry also reached the conclusion that the Crown in Ontario has failed to adequately recognize treaty rights. "19 This chorus of independent bodies who have reached the conclusion that the Crown has failed to adequately identify and define existing treaty rights, contests the proposition that, in Ontario, the Crown's obligations in relation to existing treaty rights have already been fulfilled. The practical importance of the Crown's failure was emphasized in the report of the Ipperwash Inquiry. The Report noted that Ontario is the province "in which the federal government is least involved in Aboriginal affairs" 2 ', despite its historic role as the Crown party to treaties and its exclusive constitutional jurisdiction in the area. Of the three areas of urgent reform identified by the Justice Linden, the first two involved "disputes over treaty rights with respect to lands and waters" and the "regu- lation and development of natural resources on Aboriginal traditional lands and waters."'' On the latter issue, Justice Linden concluded that provincial management 2008 CanLIIDocs 112 22 of natural resources must take effective account of the rights of Aboriginal peoples. 1 On the issue of treaty rights, Justice Linden was explicit about what is at stake: "I believe that unless a fair, expeditious, and adequately supported approach is estab- lished, involving both the provincial and federal governments, Ontarians can reason- ably expect to see more incidents such as occurred at Ipperwash and Caledonia."'2 3 After canvassing the constitutional and political background to recent confrontations, justice Linden recommended the creation of a "Treaty Commission of Ontario," 24 established by statute, to assist the Crown in discharging its treaty responsibilities. 1 Justice Linden urged both the federal and provincial governments to act in coopera- tion with First Nations in the province in establishing such a commission.125 To date, the courts have stopped short of insisting that the Crown create per- manent institutions to facilitate the implementation of section 35 rights or to resolve disputes about rights claimed under section 35.126 It is clear, however, that the feder- al government has jurisdiction to establish a body to adjudicate or implement treaty rights. It is also clear that the province has the constitutional authority to endow provincial administrative tribunals with the capacity to consider questions of treaty
119. Ipperwash Inquiry, vol. 2, supra note 3 at 54-58. 120. Ibid. at 44 121. Ibid. 122. Ibid. 123. Ibid. 124. Ibid. at 68-72, 365. 125. Ibid. at 367. 126. However, the Supreme Court has suggested that administrative bodies might be among the tools created by the Crown to fulfil its consultation obligations: Haida, supra note 6 atpara. 44. RESPECT FOR TREATY RIGHTS IN ONTARIO: THE LAW OF THE LAND? 433
rights in the course of carrying out their mandates.'27 Further, the Supreme Court has made clear that governments may not simply adopt unstructured discretionary administrative regimes that risk infringing section 35 rights.'28 Where section 35 rights are at stake, government decision-makers must be given sufficiently clear direction to enable them to make decisions that respect those rights. This article will return shortly to the proposition that the Crown has an obligation to establish ongo- ing mechanisms for the identification and implementation of treaty rights. First, how- ever, it is necessary to address the argument that suitable consultation policies would be sufficient to satisfy the Crown's obligations in this regard. The consultation requirements set out in Haida, Taku River and Mikisew pro- vide a clear incentive for the Crown to address Aboriginal assertions that government-authorized activities may infringe upon existing treaty rights. That incentive to dialogue was built upon earlier judicial exhortations that outstanding section 35 rights claims are better resolved through negotiation than litigation. 12 9 2008 CanLIIDocs 112 Ontario's response has been to promulgate draft consultation guidelines intended to assist provincial ministries in determining their consultation obligations in relation to conduct that might adversely affect Aboriginal or treaty rights. 130 The draft guidelines are currently the subject of consultation themselves, but it is intended that provincial ministries develop their own consultation processes consistent with the guidelines. 3' It might be argued that consulting with Aboriginal peoples on a case-by-case basis regarding potential treaty claims fulfils the Crown's obligation to define and implement treaty rights in the province. However, being willing to consult a party about rights they claim to hold is not the same as actively recognizing and respecting those rights as a matter of course. Consider the case of a state that is legally commit- ted to respecting the equality of women under the law. In such a state, there will be a significant difference between a government that adopts laws and policies to ensure that it does not discriminate against women and a government that takes no such ini- tiatives but promises to listen to individual women who complain that their rights have been violated. It would be difficult to argue that a process of mere consultation
127. Paul v. British Columbia (Forest Appeals Commission), 2003 SCC 55, 120031 2 S.C.R. 585 at para. 46, 231 D.L.R. (4th) 449. 128. R. v. Adams, 1199613 S.C.R. 101 at para. 54, 138 D.L.R. (4th) 657. 129. See e.g. Sparrow, supra note 4 at I 105; Delgamuukw, supra note 74 at para. 186; Shin lmai, "Creating Disincentives to Negotiate: Alitchell s'. Al. N. R. 's Potential Effect on Dispute Resolution" (2003) 22 Windsor Y.B. Access Just. 309. Nevertheless, to address concerns about access to justice, Aboriginal claimants may be awarded interim costs to pursue their claim in court. See British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, 1200313 S.C.R. 371, 233 D.L.R. (4th) 577; Keewatin, supra note 39. 130. Ontario, Draft Guidelines for Ministries on Consultation with Aboriginal Peoples Related to Aboriginal Rights and Treaty Rights (June 2006) at 3-4, online: Ontario Secretariat for Aboriginal Affairs
amounts to an honourable effort to define and implement those rights, particularly if there have been no systemic efforts in the past to identify and recognize women's equality rights. Finally, where a historically disempowered minority is involved, and there are significant transaction costs to each complaint process, the difference in impact of the two approaches will be profound. The conclusion that consultation and actual recognition of section 35 rights are two discrete and independent obligations of the Crown is made clear by the con- text in which the Supreme Court enunciated the two obligations. Recall that the Haida and Taku River judgments were issued in the context of Aboriginal rights claims in British Columbia. Haida, in particular, indicated that the Crown's obligation to consult is required as an interim measure to protect Aboriginal interests pending the final determination of a rights claim.'32 The Crown has a separate obligation to par- ticipate honourably in negotiations to resolve those claims. 3 3 The Court has never suggested that the Crown can fulfil its obligations in Aboriginal rights cases by devel- 2008 CanLIIDocs 112 oping consultation policies and never seeking to define the Aboriginal rights them- selves. Both are required to achieve the reconciliatory purpose of section 35 and a just and permanent accommodation of the constitutional rights. Once it is recognized that consultation alone is insufficient to satisfy the Crown's obligation to define and implement treaty rights, it becomes necessary to consider a variety of options for ensuring effective treaty implementation. These include a Crown commitment to engage in joint research with Aboriginal peoples to assess the evidence of intent in relation to each of the historical treaties. To make that research meaningful, the federal and provincial governments could commit to joint- ly negotiate adequate mechanisms to implement those understandings that best rec- oncile the parties' intentions and interests at the time the treaties were made. Alternatively, consistent with the recommendations of the Royal Commission on Aboriginal Peoples, 3 4 and with a view to renewing the treaty relationship, the gov- ernments could agree to a framework for implementing, in a modern setting, the spirit and intent of their existing treaty relationships. Finally, in the same manner as they approached the legislative implementation of equality rights, the federal and provincial governments could agree to review existing legislation and regulations in relation to lands and resources to ensure that they include mechanisms for identify- ing treaty rights and accommodating the continued exercise of those rights. In the absence of such initiatives by the Crown, it is open to the courts to inter- vene to ensure that systematic efforts are taken to identify and implement treaty rights
132. Haida, supra note 6 at para. 44. 133. Ibid. at para. 20. 134. RCAP Report, supra note 44. RESPECT FOR TREATY RIGHTS IN ONTARIO: THE LAW OF THE LAND? 435
in the province. Upon proof that the Crown has failed to make reasonable efforts to ful- fil its legal obligations, the court could issue a declaration or a mandatory order to require the Crown to take appropriate corrective action. Such court intervention would need to be carefully calibrated. The variety of treaties, the challenges involved in defining treaty rights where the original documents are ambiguous or inconsistent with oral promises, and the multitude of contexts in which modern activities may come into conflict with historic rights, all raise issues of remedial complexity. To justify the issuance of a remedy applicable across the province, the onus would be on the applicant to provide evidence of a systematic failure by the Crown to act honourably in defining and enforcing treaty promises. The latter burden should not be difficult to discharge if, as is currently the case, the Crown continues to take no initiative whatsoever to imple- ment and identify its treaty obligations. Two remedial options are most likely to be considered by a court that concludes that the Crown has failed to act honourably in implementing treaty rights in Ontario. 2008 CanLIIDocs 112 The first option would be for the court to fashion an order requiring the parties to negotiate a framework under which treaty rights would be identified, defined and implemented. Kent Roach has argued that this kind of order is particularly well-suited to the nature of section 35 rights and its overarching purpose of reconciliation. 35 The parameters of such an order would not, after all, be dramatically different from the parameters already specified by the Supreme Court in relation to the Crown's obliga- tions to consult. At least one Ontario court has recently issued an order requiring the parties to negotiate an interim arrangement to address a treaty claim. 3 6 The challenge involved with this type of remedy would be to determine the default order that should be made by the court if the parties are unable to reach a negotiated solution. A second, more conventional, remedy would be for the court to issue a decla- ration that the Crown is in breach of its obligation to define and implement treaty rights in the province. This approach would have the relative merit of placing the onus on the Crown to fashion an appropriate response designed to comply with its obligations.' Permitting the Crown flexibility in designing its response would have the benefit of respecting the division of roles between the legislature and the judiciary. It would also
135. Kent Roach,"Remedies in Aboriginal Litigation" in Dwight A. Dorey & Joseph Eliot Magnet, eds., Aboriginal Rights Litigation (Markham: LexisNexis, 2003) 321 at 326-30. 136. Platinex Inc. v. Kitchenubmaykoosib Inninuwug First Nation (2006), 272 D.L.R. (4th) 727, 1200614 C.N.L.R. 152 (Ont. Sup. Ct. J.). In a subsequent order, Smith J. addressed the failure of the parties to reach agree- ment: see Platinex Inc. r. Kitchrnuhmaykoosib Inninuwug First Nation (2007), 29 C.E.L.R. (3d) 116, [20071 3 C.N.L.R. 181 (Ont. Sup. Ct. J.). Ultimately, six members of the First Nation, including its Chief, were found in contempt for violating Smith l's order and sentenced to 6 months in jail. See Platincx Inc. v. Kitchenuhmaykoosib Inninuwug First Nation, 120081 O.J. No. 1014, 120081 2 C.N.L.R. 301. 137. See Eldridqe v. British Columbia (A.G.), 1199713 S.C.R. 624 at para. 96, 151 D.L.R. (4th) 577, where La Forest J. indicated, "lal declaration . . . is the appropriate remedy in this case because there are myriad options available to the government that may rectifv the unconstitutionality of the current system. It is not this Court's role to dictate how this is to be accomplished." 436 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 39:2 39:2
take advantage of the expertise of the Crown in policy development and permit a rem- edy to be fashioned through consultation with Aboriginal peoples. While it would be difficult for the court to define in detail the criteria by which compliance should be measured, the courts have in the past granted declarations in sufficiently broad terms to allow a government to determine the exact details of its response.' 8 The issuing of a declaration could be used to order the creation of an inde- pendent mechanism capable of ensuring reasonable efforts to identify and implement treaty rights. There is precedent for such an approach in several recent Supreme Court decisions.' 9 In the Reference re Remuneration of Judges, the Supreme Court declared that judicial independence required the creation of an independent com- mission to make recommendations in relation to provincial judges' compensation. The majority of the Supreme Court held that no less was required of the provincial government to give effect to constitutional principles, and the Court set out five 2008 CanLIIDocs 112 parameters for governments to take into account in creating the new institutions. 40 In Mahe, the Supreme Court found the province of Alberta to be in violation of the minority language provisions of the Constitution, and issued a declaration that fran- cophone parents in Edmonton were entitled to management and control over their children's education. In particular, the Court ordered that the province "enact legis- lation (and regulations, if necessary) that are in all respects consistent with the pro- visions of section 23 of the Charter.'41 As in Reference re Remuneration ofJudges, the Court issued general directions as to what was required for the province to comply with its constitutional obligations. 142 Of particular importance in the present context is the Court's emphasis in Mahe (and subsequently in Arsenault-Cameron) on the rationale for requiring proactive gov- ernment protection of minority language rights. According to the Court, the require- ment for government to proactively implement its constitutional obligations springs from the purposes of section 23.The true purpose of section 23 is to redress past injus- tices, "to correct, on a national scale, the historically progressive erosion of official lan- guage groups and to give effect to the equal partnership of the two official language
138. Kent Roach, Constitutional Remedies in Canada, Iooseleaf (Aurora: Canada Law Book, 2006) at 3.560-3.850, 12.400-12.430. 139. Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island; Reference re Independence and Impartiality ofJudges of the Provincial Court of Prince Edward Island, 119971 3 S.C.R 3, (sub nom. Reference re: Public Sector Pay Reduction Act (P.E). s. 10; Reference re: ProvincialCourt Act (P.E.I.); R. v. Campbell; R. v. Ekmecic; R. v. Wickman; Manitoba ProvincialJudgesAssn. v. Manitoba (Minister ofJustice)) 150 D.L.R. (4th) 577 [Reference re Remuneration ofJudges cited to S.C.R.1; Mahe v. Alberta, 1I9901 I S.C.R. 342, 106 A.R. 321 JAlahe cited to S.C.R.]; Arsenault-Cameron v. Prince Edward Island, 2000 SCC 1, 120001 I S.C.R. 3, 184 Nfld. & P.E.I.R. 44 [Arsenauit-Cameron]. 140. Reference re Remuneration ofJudges, ibid. at para. 287. 141. Mahe, supra note 139 at 389. 142. Ibid. at 391-92. RESPECT FOR TREATY RIGHTS IN ONTARIO: THE LAW OF THE LAND? 437
groups in the context of education."14'The similarities to the purposes of section 35 and the affirmation of treaty rights therein are obvious. The promise of section 35, accord- ing to the Supreme Court of Canada, is that it recognizes the Aboriginal "contribution to the building of Canada, and the special commitments made to them by successive governments."' Section 35 was the result of an "arduous effort" by peoples whose rights were often ignored in the past and whose minority status today means that they must"look to the Constitution of Canada for the protection of their rights"' 4 In short, the rationale for proactive judicial assistance appears equally applicable to the securing of treaty right implementation as to the enforcement of minority language rights.
VI. CONCLUSION
The Crown has a legal duty to deal honourably with Aboriginal peoples in relation to 2008 CanLIIDocs 112 historical treaties. That duty includes the obligation to identify and define the exist- ing treaty rights of Aboriginal peoples, as recognized in section 35 of the Constitution Act, 1982. That task of identification and definition is not a simple one, particularly in relation to the subsequent rights the parties intended Aboriginal peoples to enjoy on their traditional lands. Discrepancies between written terms of the treaties and oral assurances made by Crown representatives and ambiguities in the written terms and unresolved differences in the parties' understandings as to their future rights-all have given rise to persistent disputes over the rights created by treaties in Ontario. Although aware of those disputes, and of the factors that made such disputes inevitable, historically, the Crown developed no ongoing processes in Ontario for reconciling the parties' interpretations of the treaties. Regulatory prosecution remains the primary mechanism relied on by the Crown to address disputes over the extent to which harvesting practices by Aboriginal peoples are protected by treaty. In declining to establish any ongoing mechanisms for identifying and defining treaty rights where the meaning and effect of treaty promises are in dispute, the federal government and the government of Ontario have failed in their obligations to act honourably in implementing the Crown's treaty promises. The current draft consultation guidelines of the Ontario government seek to respond to the Supreme Court's injunction in Haida regarding the need for interim consultation in relation to section 35 rights; they do not respond to the requirement that the underlying rights be defined and honourable efforts be
143. Arscnauh-Cameron, supra note 139 at para. 26. 144. Rcference reSecession of Quebec, 119981 2 S.C.R. 217 at para. 82, 161 D.L.R. (4th) 385 IReference re Secessionof Quebec cited to SC.R.I. 145. Ibid. at para. 96. 438 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 39:2 39:2
made to resolve disputes regarding those rights. Several independent commissions have identified the need to address treaty rights and have offered specific recommen- dations for corrective action by the Crown. To date, the governments of Canada and Ontario have chosen not to adopt those recommendations. The conclusions of the Ipperwash Inquiry regarding the importance of permanent measures by the Crown to implement treaty rights, and the recent wellspring of Aboriginal protests in rela- tion to treaty rights, may give rise to reflection within governments about whether to adopt a new approach. If the Crown does not take any proactive steps to identify, define and implement treaty rights in Ontario, particularly where Crown represen- tatives know that the Crown's treaty interpretation has long been disputed, the courts will have a legal basis for intervening to require systemic action by government to preserve the honour of the Crown. 2008 CanLIIDocs 112 RESPECT FOR TREATY RIGHTS IN ONTARIO: THE LAW OF THE LAND? 439 2008 CanLIIDocs 112 2008 CanLIIDocs 112