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BITTERNOSE-THESIS.Pdf (1.420Mb) KIHCI-ASOTAMÂTOWIN (THE TREATY SOVEREIGNS’ SACRED AGREEMENTS) AND THE CROWN’S CONSTITUTIONAL OBLIGATIONS TO HOLDERS OF TREATY RIGHTS THROUGH CONSULTATION AND RESTORATION OF TREATY CONSTITUTIONALISM. 1 A Thesis Submitted to the College of Graduate Studies and Research In Partial Fulfillment of the Requirements For the Degree of Masters of Laws In the College of Law University of Saskatchewan Saskatoon By Leah M. Bitternose April 2014 © Copyright Leah M. Bitternose, 2014. All Rights Reserved 1 Treaty 3 Medallion signed on October 3, 1873 between the Saulteaux, Ojibway Nations and the Crown depicting Kihci-Asotamâtowin, The Treaty Sovereigns’ Sacred Undertakings to each other with the enduring symbolism of the sun shining, the grass growing and the river flowing. PERMISSION TO USE In presenting this thesis in partial fulfillment of the requirement for a Postgraduate degree from the University of Saskatchewan, I agree that the Libraries of this University may make it freely available for inspection. I further agree that permission for copying of this thesis in any manner, in whole or in part, for scholarly purposes may be granted by the professor who supervised my thesis work, or, in his absence, by the Dean of the College of Law. It is understood that any copying or publication or use of this thesis or parts thereof for financial gain shall not be allowed without my written permission. It is also understood that due recognition shall be given to me and to the University of Saskatchewan in any scholarly use which may be made of any material in my thesis. Requests for permission to copy or to make other use of material in this thesis in whole or part should be addressed to: Dean of the College of Law 15 Campus Drive University of Saskatchewan Saskatoon, Saskatchewan, S7N 5A6 Canada i ABSTRACT The purpose of this thesis is to assess the Crown’s Constitutional duty of consultation and its application on the holders of Treaty rights. Indigenous legal and Constitutional orders are the underpinning of the consensual Treaties. They were negotiated by sovereign nations through mutual consent and established a distinct Constitutional authority establishing rights, responsibilities and rules of coexistence. Their implementation is a Crown Constitutional obligation. This thesis argues that the duty to consult jurisprudence reveals systemic colonial problems in the common law Treaty rights paradigm by colonial interpretation, unilateral abridgement and justified infringement of the consensual Treaty. Further, judicial and politically created doctrines of the honour of the Crown and reconciliation are rendered meaningless when used as part of the ongoing colonial paradigm and abridgement of Treaties. This thesis argues that Canada must enter a post-colonial era by giving content to Indigenous legal and Constitutional orders by implementing Treaty through Treaty Constitutionalism. This requires Canada to undertake a Constitutional paradigm shift to accord the sacred and inviolable Treaties their proper place as foundational instruments in the building of Canada. This means, as well, that the only forum for proper consultation on the numbered Treaties is through Constitutional conferences with full and equal participation of Treaty First Nations. ii ACKNOWLEDGEMENTS My hands are held high in gratitude to the many good people for their knowledge, dialogue, recommendations and patience. To my supervisor, Dr. James Sakej Henderson who I am very proud and honoured to been the recipient of his wise counsel, endless patience, encouragement and gentleness. Indigenous nations are fortunate to have you as our word warrior. My committee members Professor Norman Zlotkin, Professor Dwight Newman and Professor Barbara Von Tigerstrom, for your valuable time, feedback, efforts, advocacy and supported environment. Much gratitude as well, to my external examiner Professor Michael Coyle for his time. To Madisun Browne for your tireless efforts, encouragement and valuable suggestions. To my many friends in law for their valuable discussions and passion for Treaty rights. To my Tribal Council who assisted me by managing my Treaty Right to Education. To my family for their unconditional support and love. Finally, I dedicate this thesis to all Treaty people. iii TABLE OF CONTENTS PERMISSION TO USE……………………………………………………….……………..……i ABSTRACT……………………………………………………………………………..…….….ii ACKNOWLEDGEMENTS…………………………………………………….………………..iii TABLE OF CONTENTS……………………………………………………..………………….iv INTRODUCTION………………………………………………………….……………………..1 CHAPTER 1 INDIGENOUS LEGAL ORDERS AND KIHCI-ASOTAMÂTOWIN: THE TREATY SOVEREIGNS’ SACRED AGREEMENT 1.0 Introduction……………………………………………….………………………6 1.1 Indigenous Legal and Constitutional Orders………………………..……………7 1.2 Indigenous Nationhood……………………………………………………….....10 1.3 The Royal Proclamation 1763..…………………………………………………12 1.4 The Sacred and Inviolable Treaties…………………………………………..…15 1.5 Indigenous Consultation through Indigenous Legal Orders…………….………27 1.6 Conclusion………………………………………………...…………………….29 CHAPTER 2 KIHCI-ASOTAMÂTOWIN AND THE CROWN’S DUTY TO IMPLEMENT THE SACRED AGREEMENTS 2.0 Introduction…………………………………………..………………………….31 2.1 Treaty First Nations Sovereign Nations under Protection of the Crown………..31 2.2 Constitutional Entrenchment of the Sacred & Inviolable Treaties……………...34 2.3 The Treaty Order and Constitutional Supremacy…………………….…………39 2.4 Legislation and The Treaty Order……………………………….………………40 2.5 Unilateral Infringement of the Sacred and Inviolable Treaties……………….…46 2.6 Conclusion………………………………………………………………………51 CHAPTER 3 THE HONOUR OF THE CROWN PRECEPT REQUIRES TREATY IMPLEMENTATION 3.0 Introduction………………………………………...……………………………53 3.1 The Origins of the Honour of the Crown Doctrine…………………..………….54 3.2 The Judicial Evolution of the Crown’s Fiduciary Duty to the Honour of the Crown Precept………………………………………………….………………59 3.3 The Honour of the Crown and the Treaty Order…………………..……………71 3.4 Conclusion………………………………………………………………………76 CHAPTER 4 THE CROWN’S DUTY OF CONSULTATION TO TREATY RIGHTS HOLDERS 4.0 Introduction……………………………………………………...……………....78 4.1 The Crown’s Failure to Consult Treaty Rights Holders………………...………79 4.2 The Judicial Genesis of the Duty of Consultation………………..…………..…84 4.3 The Supreme Court of Canada’s Framework on The Duty to Consult Treaty Rights Holders : Mikisew Cree First Nation v The Minister of Heritage 4.3.1 Federal Court Trial Division……………………………………………89 4.3.2 Federal Court of Appeal…………………………………………..……93 4.3.3 The Supreme Court of Canada…………………………………………95 4.4 Consultation: Protection or Avenue of Infringement?........................................100 4.5 Conclusion………………………………………………………………..……110 iv CHAPTER 5 TREATY CONSTITUTIONALISM WITH CONSTITUTIONAL CONFERENCES AS MODELS OF CONSULTATION 5.0 Introduction…………………………………………………….………………112 5.1 Restoration of Treaty Constitutionalism…………………………………….…113 5.2 Treaty Constitutionalism as Reconciliation……………………………………115 5.2.1 Reconciliation of Federal Power & Duties: Sparrow………………...117 5.2.2 Reconciliation of Indigenous People to Crown Sovereignty: Van der Peet Trilogy…………………………………………………………………118 5.2.3 Reconciliation of Indigenous Rights by Unlimited Infringement: Delgamuukw……………………………………….………………….121 5.2.4 Reconciliation of Indigenous Rights through the Duty to Consult: Haida…………………………………………………………...……..122 5.2.5 Reconciliation as Managing the Treaty Relationship: Mikisew………………………………………………………......……123 5.3 The Convergence of the Treaty Order through Treaty Constitutionalism……..128 5.4 Constitutional Conferences as Models of Consultation…………………..……134 5.5 Conclusion……………………………………………………………..………138 BIBLIOGRAPHY………………………………………………………...…………………… 141 v INTRODUCTION Indigenous legal and constitutional orders provide the authority for the Treaty First Nations to enter into Treaty and create Kihci-Asotamâtowin, the sacred agreements made to one another. The Treaty order, entered into between two foreign, yet sovereign nations, created a distinct federalism where each maintained their respective sovereignty, nationhood and way of living. Indigenous Legal and Constitutional orders are the underpinning of the consensual Treaties. They were negotiated by sovereign nations through mutual consent and established a distinct Constitutional authority establishing rights, responsibilities and rules of coexistence. The implementation of treaty is a Crown Constitutional obligation. However, instead of fulfilling the spirit and intent of the Treaty, unilateral Canadian laws were created and enforced to prevent Treaty First Nation people from asserting rights over their territories and to make their governance systems and laws illegitimate. Today, Indigenous people find themselves in a fierce struggle to protect their rights and lands which is nothing short of a struggle to survive as nations. First Nation Governments regularly face a lack of process and inclusion before land and resources deals are struck that effect traditional territories and economies. The policy of denying Indigenous legal orders, rights and interests largely persists as the Crown continues to issue interests in Indigenous lands and resources. Canada and commercial sectors have become wealthy from the resources harvested while Treaty First Nations live in utter poverty through the dispossession of their land and the lack of full recognition and implementation of Indigenous and Treaty Rights. In 1985 the Supreme Court of Canada began to flesh out a requirement on Government to consult with Aboriginal people of Canada when impacting their
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