University of Alberta Faculty of Law Blog

Aboriginal Rights: An Introduction

Image retrieved from http://indigenousfoundations.web.arts.ubc.ca/r-v-sparrow-press/ 

Tansi Nîtôtemtik,

        As we discussed in an earlier post about Canadian constitutional law, Indigenous affairs fall under federal jurisdiction and Aboriginal rights were officially recognized and affirmed in 1982. Of course, these rights were not invented at this time; rather, section 35 functionally constitutionalized the pre-existing rights of Indigenous peoples. Today’s post will explore the ways that courts have developed on the unique (or sui generis) nature of Aboriginal rights.

        The leading case on Aboriginal rights in Canadian jurisprudence is R v Sparrow.[1] Ronald Sparrow, a member of the Musqueam Indian Band (located in the lower mainland of British Columbia), was arrested for violating restrictions set out in the regulations of the province’s Fisheries Act. The offence was fishing with a drift-net longer than the terms of the band’s fishing license permitted.[2] Following his arrest, the members of Sparrow’s community joined together to argue, among other things, that they had an Aboriginal right to fish, that section 35 protected that right, and that the net length restriction constituted an unjustifiable infringement on the Musqueam band’s Aboriginal rights.

        The case’s significance is many-fold. In it, the Supreme Court of Canada affirmed that section 35 “prevented the extinguishment of Aboriginal rights found to exist on or after April 17, 1982. It also affirmed that section 35(1) was not subject to the limitation on rights provided by section 1 of the Canadian Charter of Rights and Freedoms. Nevertheless, it did allow for the infringement of Aboriginal rights on or after April 17, 1982 through the justificatory test it created.”[3]

        Shortly after Sparrow, Dorothy Van der Peet, a member of the Stó:lō First Nation (also located British Columbia’s lower mainland region) was similarly arrested for violating restrictions within the Fisheries Act. The charge against Ms. Van der Peet, however, was for the offence of selling fish caught under the authority of an Indian food fish license.[4] This license “permitted Aboriginal people to fish solely for the purposes of sustenance and ceremonial use, [but] prohibited the sale of fish to non-Aboriginal people. Van der Peet challenged the charges, arguing that as an Aboriginal person, her right to sell fish was protected under Section 35 of the Constitution Act.”[5] The decision in this case significantly narrowed the approach to characterizing Aboriginal rights that had been put in place by Sparrow a few years earlier.

        Ten years later, this culturally distinctive narrowing was affirmed in R v Sappier.[6] Dale Sappier and Clark Polchies, Maliseet individuals from the Woodstock First Nation located in the province of New Brunswick, and Darrell Joseph Gray of Mi’kmaq heritage, were charged with “unlawful possession or cutting of Crown timber.”[7] They claimed Aboriginal rights to harvest timber for personal use – because their planned uses had no commercial element, the Supreme Court found that the respondents had successfully made out their defence. The trend seems to be in the direction of never allowing Indigenous groups to financially benefit from their rights.

        Together, these cases have evolved into the test we use today to interpret the scope of Aboriginal rights and to determine whether government interference with these rights is justified. In simplest terms, the test is as follows. The claimant must prove that there is legislation or a governmental decision that interferes with an Aboriginal right. To do this, it is necessary to characterize the Aboriginal right in question: exactly what activity, for what purpose, and where? They must prove that the practice was integral to the distinctive culture or way of life at the time of contact/control. The right must not have been extinguished by the expression of clear intent prior to 1982. Finally, they must prove that the legislation or governmental decision interferes with the exercise of that Aboriginal right by imposing undue hardship or denying preferred means of exercising the right.

        If the claimants are successful, the burden shifts to the government to justify the interference. In doing so, they must demonstrate that the restriction has a valid legislative objective and is consistent with the fiduciary duty of the Crown. They must also show that the claimants have been given priority allocation and or access to the resource in question. Other factors that may be relevant include whether the restriction is minimally infringing, whether the claimants have been consulted, and whether the claimants have been fairly compensated.[8]

        The Sparrow test continues to evolve as the number of Aboriginal rights claims continues to grow. Join us for the rest of the week as we distinguish Aboriginal rights from Aboriginal title and explore recent rights and title case law.

Until next time,

Team ReconciliAction YEG

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[1] R v Sparrow, [1990] SCJ No 49.

[2] Ibid.

[3] John Borrows and Leonard Rotman, Aboriginal Legal Issues: Cases, Material, and Commentary, 4th ed (Markham: LexisNexis Canada Inc., 2012) at 113.

[4] R v Van der Peet, [1996] SCJ No 77

[5] UBC Faculty of Arts Indigenous Foundations, “Van der Peet Case”, online: http://indigenousfoundations.arts.ubc.ca/van_der_peet_case/

[6] R v Sappier, [2006] SCJ No 54.

[7] Ibid.

[8] This breakdown of the Sparrow Test comes from Matthew Lewans, Course Notes from Constitutional Law 435A (Faculty of Law, University of Alberta, 2016).

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In Theory vs. Practice: The Duty to Consult

How do our perceptions shift when the duty to consult (DTC) is understood as a process of legitimizing theft and a non-combative means of dispossessing Indigenous peoples for the benefit of a settler nation?[1]

Image retrieved from http://nationalpost.com/opinion/letters/todays-letters-ideas-for-solving-the-native-issue

Tansi Nîtôtemtik,

        The perfunctory nature of the Crown DTC and accommodate Indigenous peoples in Canada is very different in theory than in practice, and in its current form, the process is designed to ensure that the claims of Indigenous groups are destined to fail.[2] Arguably, the notion of reconciliation that underlies and justifies treaties, title claims, and consultation processes “is more concerned with reconciling Aboriginal peoples to Canada than it is with reconciling Canada to the existence of different social, cultural, and political entities within the state.”[3] In its current mobilization as a mechanism of colonization, the DTC is “a systemically disempowering process”[4] that stands as a barrier to, rather than a tool for, achieving reconciliation.

        Since the protection of Aboriginal and treaty rights by the Canadian Constitution[5] in 1982, Aboriginal law in Canada has developed to include a constitutional duty of consultation. Although informal duties of consultation have been recognized in certain contexts for a longer period, “particularly as part of the justification test first set out in Sparrow[6] for infringements of Aboriginal rights protected by section 35,”[7] the DTC is generally accepted to have been concretized by the ‘trilogy’ of Haida Nation,[8] Taku River Tlingit,[9] and Mikisew Cree.[10] These decisions outline the basic legal principles of the DTC.

        The duty is grounded in the honour of the Crown and mandates fair dealing.[11] The duty arises “when the Crown has actual or constructive knowledge of the potential existence of Aboriginal rights or title and contemplates conduct that might adversely affect those rights or title.”[12] We will be discussing rights and title in more detail in next week’s blog posts, so for today’s purposes, it is enough for you to know that collective Aboriginal and treaty rights must be affected and that claims must be brought by a recognized Indigenous group; individual Indigenous persons do not have standing to raise a breach of the DTC.[13] Direct, indirect, and strategic level/legislative action can all attract a DTC.[14]

        The extent or content of the DTC is fact specific and the consultation and accommodation requirements increase or decrease depending on “the strength of the prima facie Aboriginal claim and the seriousness of the potentially adverse effect upon the claimed right or title.”[15] Weaker claims and minor infringements may trigger a duty on the lower end of the consultation spectrum, in which case the Crown may only be required to give notice of contemplated action, disclose just the relevant information, and possibly discuss issues raised in response to the notice.[16] Stronger claims and major infringements may trigger a duty on the higher end of the consultation spectrum where deep consultation will be required.[17] Although the case law does not provide a checklist for what will be required at this level, the process may entail “the opportunity to make submissions; formal participation in the decision-making process; and, the provision of written reasons to show that Aboriginal concerns were considered and how those concerns were factored into the decision.”[18] A flexible and individual approach is necessary as the requirements of the DTC will depend on the facts of each case.[19]

        As the requirements can vary, so too can the bodies involved in carrying out the procedural aspects of the DTC. It is settled law that elements of the DTC can be delegated from the Crown to non-governmental project proponents including corporations (such as municipalities or industry stakeholders) and institutions of public government (such as boards or tribunals).[20] Provincial decision-makers may be statutorily enabled with the capacity to undertake the DTC, the duty to determine whether adequate consultation has taken place, both duties, or no duty at all.[21] However, when the Crown relies on a regulatory or environmental assessment process to fulfill the DTC, this reliance is not considered a delegation of the Crown’s duty but is instead to be understood as “a means by which the Crown can be satisfied that Aboriginal concerns have been heard, and where appropriate, accommodated.”[22] Participation in a forum created for other purposes may satisfy the duty to consult “if in substance an appropriate level of consultation is provided.”[23]

        In all of this, the focus is to be placed on the process and not the outcome.[24] The process neither guarantees a specific outcome, nor provides Indigenous groups with a veto power, nor burdens the Crown with a duty to reach agreement.[25] The case law demonstrates that “perfect satisfaction is not required,”[26] as long as reasonable, good faith efforts are made to inform, consult, and sometimes accommodate Indigenous groups’ concerns.[27] The DTC is ultimately a procedural right where Indigenous peoples are only owed a process in which justice is seen to be done. Unfortunately, it does not come with a guarantee that justice will be done.

        Historically, the British Imperial Crown and its Canadian successor were overtly engaged in the colonization of Indigenous lands. People were separated from their territories, communities, and families[28] as their lands were partitioned off and given “to third parties for settlement, resource development, nation-building or other government purposes, or retained as Crown lands.”[29] In contemporary Canada, colonization takes a more latent form and the DTC is just one of many areas where the iron fist remains – it is merely shrouded by a velvet glove. Indigenous peoples refuse to disappear, and their presence continues to inconvenience the Crown.[30] Gains have arguably been made, in terms of constitutional and human rights, but “while Aboriginal peoples can now legitimately question the injustice of colonial encounters and lay claim to pre-existing rights within the nation states in which they live, it is also becoming increasingly clear that these states can extensively modify, infringe, or extinguish Indigenous rights.”[31] Indigenous land interests continue to be conceptualized as “no more than burdens on Crown title,”[32] and new legal tests create almost insurmountable hurdles for Indigenous groups to jump before proving any claim. In the creation, implementation, and adjudication of modern law and policy, the same sentiments seem to make their way from past to present.[33] Even when accommodations are made, alterations to a plan do not include questioning the larger policy.

        Throughout the blog, we've traced Crown initiatives from civilizing, to assimilative, to suppressive, to reconciliatory. In the context of the DTC, this same analysis allows for the interpretation that the discourse of “reconciliation may simply be another masked attempt to silence Indigenous resistance.”[34] Is this really a “new relationship”[35] between Indigenous peoples and the Crown? The same vision of land use is pushed through now as it was before section 35 and the DTC. Aboriginal title jurisprudence is still based on precedents that rely on concepts such as “terra nullius and the Doctrine of Discovery.”[36] The Crown is still profiting at the expense of Indigenous peoples.[37] The “disparity in the wealth and resources of Aboriginal groups and non-Aboriginal stakeholders continues to grow”[38] and “all the while, life gets worse for most Indigenous people. In day-to-day terms, the Constitution has little relevance for improving the health, welfare, and security”[39] of Indigenous individuals or communities. Rather, they are simply (sometimes) given warning when their rights will be infringed and when their lands will be used to benefit someone else. Operating within a colonial institution, and used to protect colonial interests, the DTC is by its very nature substantively limited.

        The DTC also contains procedural limitations. Even if the process could be considered meaningful, the unequal footing on which the parties stand is an indication of unfairness. Consultations are “technically complex and generate huge costs.”[40] Economic inequity and inadequacy of resources have “a large impact on the ability of First Nations to meaningfully participate.”[41] Industry and the Crown have deep pockets and can afford to prolong the process; Indigenous communities usually cannot. Where there are project proposals, there tend to be many, and communities are often left to deal with huge quantities of paperwork in small offices. This means that “few First Nations have the resources to review all information sent to them.”[42] Some bands see upwards of one thousand requests for consultation per year.[43] The confusion is added to by the multiple bodies involved in carrying out consultation; this can make it “difficult for an Aboriginal community to identify when it is or when it is not engaged in discussions that amount to consultations for the purposes of the DTC, [especially when] various industry representatives engage in discussions that might later be portrayed as part of a consultation process”[44] when in reality they were not.

        Further, consultation is separated into project-specific compartments that tend to make the bigger picture invisible.[45] The cumulative impacts of multiple projects are excluded from analysis by the legal limits of the DTC. Also left out of the equation are “impacts on human health deriving from effects on culture.”[46] The limited environmental assessments that are done have led to “thousands of sacred sites in Canada [being] destroyed or damaged, and thousands more threatened, by planned development.”[47] For instance:

"Bulldozing an area where there are ancient human remains of an Anishnaabeg person might register as insignificant in an assessment or be thought to be mitigated by removal of the bones. However, for Anishnaabeg First Nations, failure to protect the site from disturbance is a failure to fulfil community obligations to the dead as well as rules regarding grave construction, location, visitation, feasting, and protection. Thus, while an assessment may identify an impact to the site, it rarely identifies cultural losses that can seriously affect community well-being and exacerbate disputes with federal and provincial governments."[48]

Disturbingly, designation of sacred sites is not enough to prevent project approval. All of these procedural limits coalesce to increase the reasonable distrust that many Indigenous people harbour towards the Crown and its delegates. The DTC inevitably takes huge a toll on any Indigenous participants.

        In light of these weighty limitations, it is evident that the DTC is simply another “veneer”[49] disguising the fact that “Canada is still colonizing after all these years.”[50] Until Indigenous consent is a requirement for environmental development to move forward, this will not change. In two weeks, we will examine how the United Nations Declaration on the Rights of Indigenous Peoples offers one such paradigm for mandating consent. In the meantime, stay tuned for the rest of this week as we find out more about the ‘the honour of the Crown,’ the concept of fiduciary duty, and the latest DTC case law.

Until next time,

Team ReconciliAction YEG

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[1] Caleb Behn, “The Duty to Consult” (Consultation in Environmental Legal Issues: Aboriginal Law Speaker Series delivered at the Faculty of Law, University of Alberta, 9 March 2017) [unpublished].

[2] In the province of Alberta, Indigenous opposition has never resulted in a development project being cancelled.

[3] John Borrows, “Domesticating Doctrines: Aboriginal Peoples after the Royal Commission” (2001) McGill Law Journal 46:3 615 at 10 [Borrows, “Domesticating Doctrines”].

[4] Behn, supra note 1.

[5] Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 at s 35 [Constitution].

[6] R v Sparrow, [1990] 1 SCR 1075.

[7] Dwight G. Newman, The Duty to Consult: New Relationships with Aboriginal Peoples (Saskatoon: Purich Publishing, 2009) at 9 [Newman].

[8] Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 [Haida Nation].

[9] Taku River Tlingit First Nation v British Columbia (Project Assessment Director), 2004 SCC 74 [Taku River Tlingit].

[10] Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69.

[11] See Haida Nation, supra note 8 at para 32.

[12] Ibid, at para 35.

[13] See Behn v Moulton Contracting Ltd., 2013 SCC 26 at para 42.

[14] Richard Raffai, “The Duty to Consult” (presentation in LAW 599:B16 Indigenous Peoples, Law, Justice, and Reconciliation, University of Alberta) 3 April 2017 (unpublished).

[15] Haida Nation, supra note 8 at para 39.

[16] Ibid, at para 43.

[17] Ibid, at para 44.

[18] Ibid, at para 44.

[19] Ibid, at para 45.

[20] Newman, supra note 7 at 67.

[21] See Carrier Sekani Tribal Council v British Columbia (Utilities Commission), 2010 SCC 43 at paras 55-65.

[22] Haida Nation, supra note 8 at para 53.

[23] Taku River Tlingit, supra note 9 at para 39.

[24] See Haida Nation, supra note 8 at para 63.

[25] Ibid, at para 42.

[26] Ibid, at para 62.

[27] Ibid, at para 62.

[28] Hadley Friedland, “The Blanket Exercise” (presentation in LAW 599:B16 Indigenous Peoples, Law, Justice, and Reconciliation, University of Alberta) 18 January 2017 (unpublished). For more information, see KAIROS Blanket Exercise Workshop, online: http://www.kairoscanada.org/what-we-do/Indigenous-rights/blanket-exercise.

[29] Mary Eberts, “Still Colonizing after All These Years” (2013) University of New Brunswick L J 64 123 at 124 [Eberts].

[30] See Thomas King, The Inconvenient Indian, (Toronto: Anchor Canada, 2012). See also Wilkins, supra note 38 at 63 and 66.

[31] Borrows, “Domesticating Doctrines” supra note 3 at 1.

[32] See Gordon Christie, “A Colonial Reading of Recent Jurisprudence: Sparrow, Delgamuukw and Haida Nation” (2005) Windsor Year Book Access to Justice 23 17 at 35 [Christie].

[33] Land development and resource extraction is only one example. This phenomenon can also be seen in the contexts of Aboriginal child welfare (where the infamous mantra of “Kill the Indian in the child” becomes “in the best interests of the child”), criminal justice (where complex and varied Indigenous legal systems are wrongly equated with and limited to basic conceptions of restorative justice), missing and murdered Indigenous women (where perpetrators go unpunished and cases go uninvestigated), and legislation such as the Indian Act (where the federal government maintains control over Indigenous peoples’ identities and jurisdictional gaps lead to inertia).

[34] Behn, supra note 1.

[35] See Newman, supra note 7 at title.

[36] Brenda L. Gunn, “Protecting Indigenous Peoples' Lands: Making Room for the Application of Indigenous Peoples' Laws Within the Canadian Legal System” (2007) Indigenous Law Journal 6 31 at 40 [Gunn].

[37] See Deborah M. I. Szatylo, “Recognition and Reconciliation: An Alberta Fact or Fiction? The Duty to Consult in Alberta and the Impact on the Oil and Gas Industry” (2002) Indigenous Law Journal 1 201 at 204 [Szatylo].

[38] Ibid, at 204.

[39] John Borrows, “Challenging Historical Frameworks: Aboriginal Rights, The Trickster, and Originalism” (2017) Canadian Historical Review 98:1 114 at 121 [Borrows, “Challenging Historical Frameworks”].

[40] Newman, supra note 7 at 38.

[41] Timothy Huyer, “Honour of the Crown: The New Approach to Crown-Aboriginal Reconciliation” (2006) Windsor Review of Legal and Social Issues 21 33 at 45.

[42] Ibid, at 45.

[43] Newman, supra note 7 at 38.

[44] Ibid, at 36.

[45] Behn, supra note 1.

[46] Sari Graben, “Resourceful Impacts: Harm and Valuation of the Sacred” (2014) U of Toronto Law Journal 64 64 at 103 [Graben].

[47] Ibid, at 65.

[48] Ibid, at 66.

[49] Jenna Broomfield, “The Treaty Relationship” (presentation in LAW 599:B16 Indigenous Peoples, Law, Justice, and Reconciliation, University of Alberta) 13 March 2017 (unpublished).

[50] Eberts, supra note 29 at 125.

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Oh Canada! Your home's on Native Land!

Dear Sirs and Madams:

Did you know that Canada’s parliamentary buildings sit on unceded Algonquin land?[1] “The House of Commons, the Senate, and the Supreme Court of Canada make laws for all Canadians while situated on land that was never lawfully purchased”.[2] This contravenes formal legal rules established for encroaching on Indigenous lands. Today’s post reviews significant Aboriginal jurisprudence from the Supreme Court of Canada (SCC) that interpreted the BNA Act and the Constitution Act, 1982 with respect to the Crown’s negotiations with Indigenous groups.

On Monday, we discussed the Royal Proclamation of 1763. It essentially allowed the Crown to encroach on “Indian Territory” through negotiations or treaties. Because the Crown retains sovereignty, the Royal Proclamation established an orderly transition of control rather than assured Indigenous sovereignty over “Indian Territory”. At Confederation, s. 91(24) of the BNA Act gave Parliament exclusive jurisdiction to make laws respecting “Indians, and Lands reserved for the Indians” but did not recognize inherent or existing Indigenous rights. Section 35 of the Constitution Act, 1982 protects existing “aboriginal and treaty rights” and s. 35.1 guarantees aboriginal participation in the discussion respecting Indigenous rights.

Canadian common law jurisprudence has attempted to solve some of the conflict arising when federal and provincial legislation affects Indigenous land or interests in land. In Calder et al v. Attorney-General of British Columbia, the SCC held that Indigenous land rights survived European settlement unless a treaty extinguished such rights.[3] In Guerin v. The Queen, the SCC determined that the Crown’s fiduciary duty arises from the nature of Indian title and that Indian land interests are only transferable to the Crown.[4] However, the Court in R. v. Sparrow also asserted that rights could be extinguished by the Crown without consent by clearly expressed legislation before the 1982 Constitution and with consent or by constitutional amendment after the 1982 Constitution because s. 35 entrenched those rights[5].

The Court in Sparrow also held that the government could infringe on indigenous rights and title to land with a “compelling and substantial” rationale. The SCC maintained that the Crown still has to act in accordance with the fiduciary duty it owes Indigenous groups and must act honourably in light of the historical and future relationship with Indigenous peoples. The Court expanded on the principle in R. v. Van der Peet that pre-contact Indigenous claims are not frozen in time.[6] Indigenous rights are flexible in that they are not simply the same as rights were in the 1700s. This means that that the Crown has to consider needs that are unique to Indigenous peoples in today’s society.

In Delgamuukw v. British Columbia, the SCC held that Indigenous land rights and the Crown’s obligations are unique because they predate Crown sovereignty.[7] It also allowed a more flexible evidentiary standard to accommodate oral history traditions that were more prominent in Indigenous cultures than in the English common law system. The Court specified that Indigenous perspectives needed equal weighting to Canadian common law perspectives on property ownership. However, this “equal weighting” did not amount to giving a veto power to indigenous voices and there is a broad range of legislative objections that can justify infringement. The Court held that indigenous rights involve exclusive use and occupation but, again, the Crown can infringe on these rights if they exercise their duty to consult and accommodate affected communities. This is necessary even where aboriginal title is asserted but not yet proven. The duty to consult is flexible: its intensity increases with significant infringement and with a strong indigenous claim to title.

The Court also expanded on the principle of the honour of the Crown in negotiations regarding resource development in areas where aboriginal title and rights are asserted but not established. The honour of the Crown requires consultation and accommodation in good faith and actual consent, not just consultation, may be required in some circumstances where title is officially established.

Most recently, in 2014, the Tsilhqot’in Nation v. British Columbia decision made headlines for several reasons.[8] The Court declared indigenous title to off-reserve lands for the first time. It extended the title to a large area that an Indigenous group used regularly and exclusively at Confederation. It asserted that Indigenous rights are exclusive to all others including provincial and federal legislation.[9] Pam Palmater, a lawyer and chair of Indigenous Governance at Ryerson University, suggests that there remain large areas in Canada that have never been ceded, negotiated, or compensated for.[10] Palmater further asserts that indigenous human rights have suffered as a direct result of being subject to government control over their lives and territories.[11] The Tsilhqot’in decision, she points out, clarified that consent, versus mere consultation, is required.[12]

Treaty negotiations are not just part of Canada’s colonial history. Concerns about Indigenous land rights and title are currently at issue in Ontario. The provincial and federal governments’ consultation process with members of the Ontario Algonquin nation affects a land claim that includes Canada’s capital. Despite an Agreement-in-Principle ratified by the Algonquins of Ontario, some scholars argue that this is a continuation of the government’s colonial management of a group of people.[13] The Agreement-in-Principle is not binding but forms the framework for negotiations.[14] The region under dispute is approximately 36,000 km² with a population of about 1.2 million. Both Indigenous and non-Indigenous Canadians could be affected in the short term and the long term. By revisiting the errors made under colonial practices, Canada will be in a better position to address Indigenous claims.

Your humble servant,

The Dominion

[1] “Chiefs say Proposed Algonquin Land Claim Deal Illegal, Fraudulent” (3 Mar 2016), CBC News, online: <www.cbc.ca/news/indigenous/algonquin-land-deal-illegal-1.3475359>; Lynn Gehl, “‘Oh Canada! Your Home is Native Land’: The Algonquin Land Claims Process”, Atlantis 20:2 (2005), online: <www.lynngehl.com/uploads/5/0/0/4/5004954/51.pdf>.

[2] Robert Potts, “Algonquin Land Claim, a Journey of Reconciliation” (28 Jun 2013), The Hill Times, online: <https://www.hilltimes.com/2013/06/28/algonquin-land-claim-a-journey-of-reconciliation/25205>.

[3] [1973] SCR 313, 34 DLR (3d) 145.

[4] [1984] 2 SCR 335, 13 DLR (4th) 321.

[5] [1990] 1 SCR 1075, 70 DLR (4th) 385 [Sparrow].

[6] [1997] 3 SCR 1010, 153 DLR (4th) 193 [Delgamuukw].

[7] [1996] 2 SCR 507, 137 DLR (4th) 289.

[8] [2014] 2 SCR 257, [2014] 2 SCR 257

[9] “Pam Palmater on Court Rulings Impacting Aboriginal Rights” (2 Jun 2015), CBC

[10] Ibid.

[11] Ibid; Pam Palmater, “Canada’s State of Emergency” (10 Mar 2005), TedxRyersonU, Tedx Talks, YouTube, online: <https://www.youtube.com/watch?v=lrd4848Q064>.

[12] Lynn Gehl, “Canada’s Interim Comprehensive Land Claims Policy is No More than Colonial Policy” (27 Nov 2014), Anishinabek News, online: <anishinabeknews.ca/2014/11/27/algonquin-chiefs-say-tsilhqotin-supreme-court-decision-is-no-more-than-colonial-policy/>.

[13] Lynn Gehl, “Why I’m Hoping the Algonquin Land Claim Proposal is voted Down” (23 Feb 2016), Ricochet Media, online: <https://ricochet.media/en/970/why-im-hoping-the-algonquin-land-claim-proposal-is-voted-down>; Potts, supra note 2.

[14] Algonquins of Ontario Agreement-in-Principle Executive Summary (2016), Indigenous and Northern Affairs Canada, online: <www.tanakiwin.com/wp-system/uploads/2015/06/Frequently-Asked-Questions-and-Executive-Summary.pdf>.

Judging the Constitution: How Precedents Affect Powers

Dear Sir or Madam,

 

Yesterday, we wrote of constitutional conventions. There was some mention made of Re: Resolution to Amend the Constitution, in which the Supreme Court ruled on how conventions would determine how to amend the soon to be patriated Constitution.¹ This is an example of a reference case. A reference case is when a government goes to the Supreme Court and requests that they rule whether or not a certain policy that they wish to turn into law is constitutional.

 

One of the most important references cases was Re: Secession of Quebec. This case filled an important gap left in the British North America Act in 1867. Once Confederation was established there was no way to deconfederate and allow a province to split off. Given how hard it was to establish Confederation this is actually quite reasonable. However, this meant that as tensions rose between Quebec and the federal government there was no process in place to determine what was an acceptable method for Quebec to leave. The Supreme Court was asked whether unilateral secession was possible, and ruled that secession could only happen after negotiations with the federal government. This was ruled on the grounds that one province leaving Confederation would affect all other provinces, so it would be undemocratic to allow it to do so.²  More importantly, the RSQ highlighted four fundamental tenets of the constitution: Federalism, Democracy, Constitutionalism and the Rule of Law, and Protection of Minority Rights.  While the others are also enumerated in statute, much ink has been spilled with regards to the meaning and application of “Rule of Law”.  To put it succinctly, it establishes a hierarchy of laws, with constitutional law at the top, being supreme over all others.  Additionally, it requires adherence to principles such as predictability, in order to prevent arbitrary uses and abuses of power.

 

Highlighting the importance of federalism, the Supreme Court hears reference cases to decide jurisdiction. One example is  Reference re: Regulation & Control of Aeronautics in Canada, decided by the British Privy Council in 1931 (that was our highest court at the time. To find out when and why that practice ended, make sure you keep reading: Judiciary Week is coming up!). This case established federal, rather than provincial, control over the then-new field of commercial aviation. The Privy council gave two major reasons for their decision. First, section 132 of the British North America Act gives the federal government power over everything related to international treaties. Since 1919, aviation was affected by international treaties, so it made sense for the federal government to regulate it in accordance with those treaties. Secondly, the beginning of s. 91, the “POGG clause”, charges the federal government "to make Laws for the Peace, Order and good Government of Canada, in relation to all Matters not coming within the classes of Subjects by this Act assigned exclusively to the Legislatures of the provinces". This catch-all means that anything that does not fit into a s. 92 provincial power must fit under federal jurisdiction.³ The “POGG” Power refers to the “Peace, Order, and Good Governance” of Canada.

 

The POGG Power is one of the most contested areas in Constitutional law. Often this comes down to an analysis of the POGG Power, which has been defined in three distinct branches. The original use of the POGG was for emergencies such as war and natural disasters. However, economic crises were added to the definition of “emergency” by the Supreme Court in 1975.⁴ The second, covered by the Aeronautics Reference, is the gap branch. New issues, such as technological innovations which were not discussed in the original BNA Act, are given to the federal government.⁵ The third branch, national concern, applies to anything that the federal government can prove is an issue that affects all Canadians and therefore cannot be decided on a provincial level. A good example of this is environmental legislation. This was declared federal jurisdiction by the Supreme Court in R v Crown Zellerbach, in which a company accused of polluting a waterway disputed the federal law it was charged under.⁶ This case is also interesting because it shows how the Supreme Court can shape constitutional interpretation at any time, even when it is not an official reference case.

 

Even when the text of the Constitution is left unchanged, its interpretation can make a great deal of difference to what governments are or are not allowed to do. There are gaps to fill and vague clauses to define. When Parliament finds themselves unsure as to how to proceed, these roles are taken on by the Supreme Court.

 

Your Humble Servants,

The Dominion

 

 

 

¹Reference re: Resolution to Amend the Constitution, [1981] 1 SCR 753, 1 CRR 59 [Patriation Reference].

²Reference re: Secession of Quebec, [1998] 2 SCR 217, 51 CRR (2d) 1 [RSQ].

³Regulation and Control of Aeronautics, Re, [1932] AC 54, 39 CRC 108 [Aeronautics Reference].

⁴Reference re: Anti-Inflation Act, [1976] 2 SCR 373, 68 DLR (3d) 452.

⁵Aeronautics Reference, supra note 3.

⁶[1988] 1 SCR 401, 49 DLR (4th) 161.

Law and Social Media - Meet the Team - Alexander Brophy

How much do people really know about The British North America Act, 1867 (BNA Act), the founding document and first Constitution of our country? The answer is often “not very much”. We are generally aware that Canada was established in 1867, and may know the name of the document, but we have little to no understanding of what that document contains and how it has and continues to affect our society. Before studying it in law school, I certainly didn't. This project, leading up to and during the 150th anniversary of this historic document, will hopefully change that for some people.

My name is Alexander Brophy. As a second year law student at the University of Alberta I have chosen to enroll in the Law and Social Media class that will be writing this blog. I'm excited to be a part of this because I understand the value of ensuring that people have legal knowledge. My interests skew towards matters of criminal law and civil rights, where it is so important that everyone in our society have as much knowledge as possible. This project will give me good experience writing about the law in an accessible and hopefully engaging way. I look forward to this opportunity to engage with and educate the public.

The BNA Act might seem dry at first, especially compared the more talked about American Constitution. As a document it is primarily concerned with division of powers between the Federal Government and the Provinces, as well as other structural issues such as courts. Most people really don't have much knowledge about how important such structural issues are in their lives. I plan to put my educational background in History to work this year. A lot of my output will be sharing stories with you. The various provisions of the BNA Act have affected many important events in the last 150 years, and continue to have an effect today. Liquor laws (and soon, marijuana laws), obscenity, the FLQ crisis, wartime emergencies, and even something as banal as whether one can believe that margarine is butter have all related in some way to the BNA Act. I hope that readers will come away feeling that they know a bit more about why things in our country are the way they are.

To receive daily alerts to our blog, email the words "add me" to TheDominion@gmail.com, follow us on Twitter @Dominion_2017, and like our Facebook page /Dominion2017.

A (veiled) hint at the future of Canadian corporate law jurisprudence?

Please check out my case comment on the SCC's recent decision in Chevron Corp. v. Yaiguaje in the Canadian Business Law Journal - you can read the decision here and the comment here. The Court's decision is primarily concerned with affirming and clarifying a liberal approach to the recognition and enforcement of foreign judgments pursuant to an equally liberal conceptualization of comity. But the Court's decision also offers an intriguing (if veiled) hint at the near future of Canadian corporate law jurisprudence, including the possibility of recognizing the principle of enterprise liability in respect of close corporate groups.

10 Things You Didn't Know About the Magna Carta!

Ms. Magna Carta is thrilled to be holding two events on November 26th featuring Dr. Carolyn Harris, author of Magna Carta and Its Gifts to Canada: Democracy, Law and Human Rights.

Dr. Harris will be speaking over the lunch hour in the Law Building On November 26th, and will also be one of the presenters at the Legislative Assembly of Alberta Visitor Centre the same evening. Both presentations will will be focused on the Magna Carta’s history and present day significance.

 

To hold you over until she visits Edmonton, here are 10 interesting facts from her book; enjoy!

 

1. It is the interpretation of the document by Sir Edward Coke (1552-1634), rather than the vastly different intentions of the rebel barons who drafted it in 1215, that inform our modern perceptions of the great charter. [1]

 

2. King John, who placed his seal on the Magna Carta in 1215, was the youngest of 8 children. His eldest surviving brother (Henry) led an unsuccessful revolt against his father at the age of 18 with the support of his mother and brothers. King Henry II reconciled with his sons, but imprisoned his wife. When young Henry died of dysentery, Richard was next in line for the throne. Richard never saw eye-to-eye with King Henry II, so John left his father’s deathbed to gain favour with Richard when the time came. When King Richard was captured, John offered something of a reverse-ransom to have the King kept in captivity. Several years later, Richard died from a crossbow wound, and against all odds, John inherited the throne. [2]

 

3. The Charter of the Forest, a complementary document to the Magna Carta, takes the prize for the piece of legislation to be in force for the longest period of time: 1217 - 1971. [3]

 

4. Before the creation of the Charter of the Forest, the King controlled management and distribution of the “forest” which constituted about one third of the land. King John wielded this power to settle personal scores: “he expressed his displeasure with the Cistercian Order by forbidding the monks from pasturing their livestock in the forest until twelve abbots begged his forgiveness on their knees.” [4]

 

5. After King John’s death, his son became king at the age of nine, which may have been a key cause of the Magna Carta’s revival: “the accession of the first child-king of England since 978 provided the opportunity for senior barons and clergymen to govern the country in Henry’s name, reissue Magna Carta, and build upon the charter’s clauses to institute further reforms.” [5]

 

6. There are 24 surviving copies of the Magna Carta from the thirteenth century, and one of them was recently purchased for 21.3 million dollars! [6]

 

7. “Magna Carta experienced a period of obscurity that lasted from the mid-1400s until the early 1600s, becoming a text consulted by legal scholars alone instead of inspiring the general public.” Lucky for us, Sir Edward Coke revived interest in the document through legal text and commentary. [7]

 

8. How did the word get out about Magna Carta? “Each version of the charter was laboriously handwritten by clerks. Distribution took weeks, as the only means of transport were by horseback or riverboat. Since the literacy rate in medieval England may have been as low as 5 percent in rural areas, Magna Carta was read aloud in churches and town halls in French, Latin, and English.” [8]

 

9. It was a slow and steady process by which Magna Carta transitioned from legally binding document, to a symbolic one: “The first Statute Laws Revision Act of 1856 began the process of removing ‘obsolete’ legislation from the British statute books. ...The 1863 legislation repealed seventeen clauses from the 1225 version of Magna Carta issued by Henry III when he achieved his majority.” [9]  

 

10. The United Nations’ Universal Declaration of Human Rights was greatly influenced by the Magna Carta. The Declaration was adopted by the General Assembly with 48 countries voting in its favour, none against, and 8 abstentions. Several countries abstained due to concerns with terms such as equal marriage rights, freedom of movement, or racial equality. [10]

Want to read more? Of course you do! This book can be purchased on Amazon

 

[1] Carolyn Harris, Magna Carta and Its Gifts to Canada: Democracy, Law and Human Rights (Dundurn, Toronto: 2015) at 64.

[2] Ibid at 27-32.

[3] Ibid at 102.

[4] Ibid at 24.

[5] Ibid at 49.

[6] Ibid at 97, 105.

[7] Ibid at 60.

[8] Ibid at 47.

[9] Ibid at 91.

[10] Ibid at 100.

TBT - Last week!

This throwback Thursday will not regress too far into the past. For those who missed it - On September 8th, two candidates of the Edmonton-Strathcona district attended a debate at the Faculty of Law building. Liberal Candidate, Eleanor Olszewski QC, and NDP Candidate, Linda Duncan, provided their position on several questions which are key to the federal election. We previously posted a summary of the debate, but if you’d like to watch the full video check it out below!

 

 

Closing Remarks from the Strathcona Candidate Debate

On September 9, 2015, Strathcona candidates Linda Duncan (NDP MP) and Eleanor Olszewski (Liberal candidate) debated legal issues which are central to the upcoming federal election. Closing remarks were omitted from the debate, but the candidates were pleased to provide closing remarks for Ms. Magna Carta’s blog. Please see below, and check back tomorrow for a link to the debate video!

 

Linda Duncan

"We have witnessed a decade of Conservative regressive measures changing the face of Canada, marring our international reputation, diminishing our Charter rights, showing disregard for the rule of law and the judiciary, eviscerating our once strong environmental protection regime, and abrogating Treaty rights. It is time for a change in governance to restore our basic democratic rights beginning with an elections process that supports the right to vote and reflects all preferences through proportional representation.  Canadians are calling for a genuinely balanced and diversified economy, one that restores open transparent decision making and restores the balance between development and environment. My twice tabled Environmental Bill of Rights would enshrine those rights and duties. We need a government that honours the UNDRIP and delivers on a respectful nation to nation relationship with indigenous Canadians. We must restore our once lauded international reputation and uphold our obligations and commitments to human rights and environment, including missing and murdered indigenous women and the plight of refugees. This is your time and your choice. I encourage you to play your part in helping to deliver better governance.”

 

Eleanor Olszewski

“Thank you for inviting me to this debate in celebration of democracy's birth certificate – the Magna Carta. With the election a little over a month away, it is an optimum time to reflect upon the foundations of our government and the values that make us Canadian. I believe that Canadians' faith in government has never been lower – that unprecedented power has been concentrated in the hands of the Prime Minister and his office and that our government operates in a culture of secrecy, control, and hyper-partisanship. I also believe that a Liberal government, under Justin Trudeau, will bring about the sweeping changes that we need in order restore a sense of trust in our democracy.

This includes enhanced access to government information, restoring relevance to Question Period, electoral reform, and an end to the "first past the post" voting system, the unmuzzling of government scientists, return of the long form census, an equal number of men and women in Cabinet, and the formation of a Youth Advisory Counsel so that young people can provide advice to the PM on issues that concern them. These proposals form part of the Liberal plan for a fair and open government.

We have many challenges ahead of us – from the threat of climate change to the Syrian refugee crisis; from missing and murdered Aboriginal women to affordable housing. We can make better decisions with a fair and open government that reflects the values and expectations of Canadians. And in so doing, we can remain true to the living document that is the Magna Carta.”

Carpe Carp

Just how exactly did an invasive species known as the Asian carp manage to clog up many of America's rivers and lakes? It turns out state planning had something to do with that.

Watch the Vice News video below from its documentary about the Asian Carp, and stick to the end to see that state planning may have started a bigger issue than just monster fishes. Warning: it is a Vice News production, so some foul language here and thereand some politically incorrect language at the start:

 

 

Economic Development and Future Generations: Only an Aboriginal Concern?

On June 26, 2014, the Supreme Court of Canada made history by recognizing for the first time a claim for Aboriginal title (Tsilhqot’in Nation v. British Columbia). Having done so, the Court went on to set conditions on what Aboriginal title-holders can do with their land. These conditions include the requirement that the land cannot be “encumbered in ways that would prevent future generations of the group from using and enjoying it.  Nor can the land be developed or misused in a way that would substantially deprive future generations of the benefit of the land.”(Para 74) Whether a particular land use is consistent with this requirement was left to be determined on a case by case basis, although permanent changes and “modern” uses are not necessarily precluded. Later in her reasons, Chief Justice McLachlin states that use of Aboriginal title land “cannot destroy the ability of the land to sustain future generations of Aboriginal peoples” (para 121).

The Court then went on to discuss when infringements of Aboriginal title would be justified. The list of activities that could constitute justifiable infringements, quoted from the Court’s prior decision in Delgamuukw, includes “development of agriculture, forestry, mining, and hydroelectric power” and “the general economic development of the interior of British Columbia” (para 83). The only express mention of future generations is in relation to the Crown’s fiduciary duty to Aboriginal Peoples.

Similarly, in Grassy Narrows First Nation v. Ontario (Natural Resources), released two weeks after Tsilhqot’in, the right of the Government of Ontario to take up lands within Ojibway traditional hunting and fishing territory for settlement, mining and logging is subject to obligations regarding treaty rights and to accommodate “if appropriate” First Nations’ interests, but there is no mention of Ontario’s responsibilities to future generations of Ontarians.

The broader question of moral obligations owed to future generations with respect to land use and natural resource development was not, of course, directly before the Court in either case. But it cannot be that the obligation to authorize land use or development of natural resources in a manner consistent with the interests of future generations is an obligation owed only by First Nations governments to future generations of Aboriginal peoples and only with respect to Aboriginal title lands. On what principled basis could such a distinction rest? Surely this is an obligation owed by all levels of government in Canada to future generations of Canadians as a whole.

Whaling in the Antarctic: Part VI - What Now?

In this final installment of my assessment of Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening), I aim to provide a few thoughts on what the future holds for the International Convention for the Regulation of Whaling (ICRW) and the International Whaling Commission (ICW).

The first consideration must be whether or not Japan is going to comply with the decision of the International Court of Justice (ICJ). Japan has indicated that it will and it also does not appear that Japan is going to withdraw from the IWC in light of the decision. Does this mean that whaling in the Antarctic is done? Maybe, maybe not. Since the Whaling Case addresses permit issuance pursuant to JARPA II, the possibility remains that a new scientific research program could be developed and deployed in this region, which once again could be susceptible to challenge. Similarly, Japan’s JARPN II on-going special permit program in the North Pacific may also be scrutinized in light of the Whaling Case and the ICJ’s analysis of what is meant by “for the purposes of scientific research”. The decision may also have implications for the commercial whaling conducted by Iceland and Norway pursuant to objections that these States have lodged at the IWC if Japan seeks to supplement its diminished supply of whale meat (which may not be required given dwindling consumer demand). Alternatively, this development might similarly increase the coastal hunt of small cetaceans (dolphins and porpoises) that is not regulated by the ICRW. Or, it might mean the end of all special permit scientific whaling. It is early days yet and only the passage of time will reveal the ultimate consequences of this decision.

While the Whaling Case does not delve into the political and cultural issues that continue to prevent coherent implementation of the ICRW, it is obvious that future work and considerable compromise is needed to bridge the gap that separates those States that support the use of whales as a resource and those States that prefer preservation. Important questions remain unanswered: Should the moratorium on commercial whaling be lifted to allow for a limited take of those whale species that science suggests can bear such a take (i.e., the minke whale)? How do we account for cultural differences and preferred uses in an appropriate manner? Is it possible to reconcile these positions within the current international framework or should an alternative agreement be sought? How should the global community regulate the take of smaller cetaceans that live close to shore? And, perhaps most importantly, is enough being done to ensure that the other threats—bycatch, ship strikes, climate change, environmental pollution, habitat destruction, and even eco-tourism—are being addressed?

The Whaling Case represents an important piece of the larger marine mammal management puzzle. The puzzle is far from complete and we must continue to work to piece it together.    

Whaling in the Antarctic: Part V - Experts & Scientific Evidence

I will be exploring the issues addressed in today's post in more detail in an upcoming paper so this particular blog is going to be kept a bit shorter than the others.

First, it is important to state the obvious—international environmental law is inextricably connected to scientific and technical developments. One need look no further than climate change to understand just how connected our (changing) understanding of the natural world is to determining the appropriate form/function of the regulatory response. Further, and in addition to using and incorporating scientific knowledge during the development of international law, science and other forms of expertise have also become important aspects of international environmental dispute adjudication. Unfortunately—or fortunately, depending on your perspective—we do not have an “International Environmental Court” to deal with these increasingly technical problems. The ICJ did create a Chamber for Environmental Matters in 1993, but this chamber was effectively ended in 2006 without ever hearing a case.

Lawyers and judges may be expert in statutory interpretation but they are not, generally speaking, also expert in all things scientific or technical. Still, as identified above, it is critical that the appropriate and necessary evidence get before the Court to ensure informed decision-making and adjudication. There are different ways that this goal can be accomplished at the ICJ. The Court can arrange for the preparation of an expert opinion (Article 67 of the ICJ’s Statute), experts can appear as advocates/counsel before the court, an agent appearing on behalf of a party can become versed in the necessary scientific or technical information and present it, or a party can call experts/witnesses as part of its case (Article 65) in accordance with its declared list of intended witnesses/experts (Article 57). In the case of Pulp Mills on the River Uruguay (Argentina v. Uruguay), the Court made it apparent that it prefers the latter method because it allows the experts to be cross-examined by the opposing party and to be questioned by the Court. At paragraph 167 of the Pulp Mills judgment the Court stated:

“...those persons who provide evidence before the Court based on their scientific or technical knowledge and on their personal experience should testify before the Court as experts, witnesses or in some cases in both capacities, rather than counsel, so that they may be submitted to questioning by the other party as well as by the Court.”

This is exactly what happened in the Whaling Case. As described in paragraphs 20-21 of the Judgment, Australia called two experts during the public hearings: (1) Professor Marc Mangel (Distinguished Research Professor of mathematical Biology and Director of the Center for Stock Assessment Research, University of California, Santa Cruz); and (2) Nick Gales (Chief Scientist for Australia’s Antarctic Program). Japan also called one expert, Professor Emeritus Lars Wolloe from the University of Oslo and marine mammal advisor to the Government of Norway. Each expert was examined in chief, cross examined, and asked questions from the Court. Additionally, each expert provided a written statement that preceded their testimony.

It is obvious in reading the portion of the judgment that investigates the term “scientific research” (paragraphs 73-86) and the term “for purposes of” (paragraphs 87-97), and more importantly part 3 of the judgment titled “JARPA II in light of Article VIII of the Convention” (paragraphs 98-227), that the Court utilized and worked with the evidence presented by the experts. This decision may very well represent a model for the preferred use of experts in this judicial forum moving forward.

#ICJWhalingCase   

Whaling in the Antarctic: Part III - Jurisdiction

As described in my introduction to jurisdiction of the International Court of Justice (ICJ) in yesterday’s blog titled Nature of the Challenge & the Outcome, Australia based its application to the Court on the basis of each State’s optional declaration of compulsory jurisdiction. Japan asserted in its Counter-Memorial and during oral argument that the ICJ lacked jurisdiction to hear the case based on its interpretation of Australia’s optional declaration. Essentially, States can craft their declarations such that certain types of disputes are excluded from compulsory jurisdiction. And, pursuant to the principle of reciprocity, Japan can use Australia’s reservation to challenge jurisdiction since it only has to answer the claim if Australia has accepted the Court’s jurisdiction over the matter at hand. In short, if this claim came within Australia’s excluded type then Japan could properly assert that the Court is not entitled to adjudicate the dispute. So, what exactly does Australia’s declaration exclude? It reads:

“[A]ny dispute concerning or relating to the delimitation of maritime zones, including the territorial sea, the exclusive economic zone and the continental shelf, or arising out of, concerning, or relating to the exploitation of any disputed area of or adjacent to any such maritime zone pending its delimitation.”

This reservation relates to the delimitation of the maritime zones memorialized and/or created in the United Nations Convention on the Law of the Sea, with delimitation referring to the determination of the limits of each zone when there are competing or overlapping claims (i.e., two adjacent or opposite States are geographically close enough that each cannot claim the full extent of various maritime zones without both claiming the same area). Such disputes are often settled through bi-lateral treaties or recourse to international dispute resolution, with the result being division of the contested area. Does this situation qualify? The ICJ decided that it did not, dismissing Japan’s argument.

At this point you might be wondering what maritime zone is potentially engaged since the dispute is occurring in the Southern Ocean around Antarctica. Good question! The treaty system that is in place in the Antarctic prevents novel claims for territorial sovereignty on the continent of Antarctica but remains neutral with respect to its impact upon pre-existing sovereignty claims. Australia made such a sovereignty claim in the 1950s prior to the current treaty system taking effect. Australia has also claimed an exclusive economic zone based on this pre-existing territorial claim. This claim has been hotly contested and opposed.

Japan interpreted Australia’s reservation such that the scientific whaling issue did relate to a disputed area (owing to the fact that Japan does not recognize Australia’s exclusive economic zone claim) that is sufficiently linked to exploitation of the whale resource through JARPA II in or adjacent to this disputed area. In considering this interpretation and coming to its conclusion on jurisdiction, the ICJ noted that the reservation requires a maritime delimitation dispute which simply does not exist in this situation (see paragraphs 38-40 of the Judgment). As such, Japan’s jurisdictional challenge was unsuccessful and the Court proceeded to adjudicate the claim.

#ICJWhalingCase

Whaling in the Antarctic: Part II - Nature of the Challenge & the Outcome

Disputes between States can be brought before the International Court of Justice (ICJ)—the dispute resolution organ of the United Nations—in three ways. First, a treaty may expressly provide that disputes between States Parties, being those members of the treaty that have signed and ratified the treaty thereby creating binding legal obligations, shall be submitted to the Court for resolution. Second, States can agree to accpt the ICJ’s jurisdiction for a discrete issue through Special Agreement. Third, and pursuant to Article 36(2) of the ICJ's Statute, States “may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes” relating to: treaty interpretation; questions of international law; whether a fact exists that proves a breach of an international obligation; or the sort of reparation owed due to a breach of an international legal obligation. Sixty-nine States have made an optional declaration.

In the Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening), Australia utilized the third option and initiated its challenge by written application to the Registrar of the ICJ. This option was available because both Japan (in 2007) and Australia (in 2002) had made the requisite optional declarations accepting compulsory jurisdiction (see more here).

Australia’s Application asserts that the second phase of Japan’s Antarctic research program (JARPA II, as described in yesterday’s blog Setting the Scene) violates key provisions of the regulatory Schedule of the International Convention for the Regulation of Whaling (ICRW). Specifically, that JARPA II, as proposed and implemented, violates the Schedule’s prohibition on killing whales for commercial purposes found in paragraph 10(e) and the prohibition on commercial whaling in the Southern Ocean Sanctuary found in paragraph 7(b) (see paras. 35-36 of Australia’s Application). Australia’s written argument (called a Memorial) also sought relief for an alleged breach of paragraph 10(d) of the Schedule, which prohibits the use of “factory ships or whale catchers attached to factory ships” for killing/treating whales, excepting out the minke whale (see page 276 of Memorial).

At its core, argument and analysis into the allegations set out above would turn on a detailed assessment of Article VIII of the ICRW. Article VIII(1) provides that:

Notwithstanding anything contained in this Convention any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit, and the killing, taking, and treating of whales in accordance with the provisions of this Article shall be exempt from the operation this Convention. Each Contracting Government shall report at once to the Commission all such authorizations which it has granted. Each Contracting Government may at any time revoke any such special permit which it has granted. [emphasis added]

In short, this “special permit” potentially exempts lethal take from operation of the Schedule provisions described above so long as it is “for purposes of scientific research”. The national permits for minke, fin, and humpback whales that I described in yesterday's post were granted by the Japanese government to a not-for-profit research organization called the Institute for Cetacean Research, which further contracted out each annual take.  

And the core issue emerges: are the permits issued for JARPA II “for the purposes of scientific research” and consequently exempt from operation of the Schedule? If Article VIII is not satisfied then Japan is exposed for Schedule breaches.

The ICJ ultimately declared that Japan violated the three paragraphs of the Schedule identified above and, owing to JARPA II’s ongoing status as a program, ordered that any existing permit be revoked and that it not be granted any other permits under Article VIII (para. 245 of the Judgment).

Starting tomorrow, I will explore certain key aspects of the decision in more detail.

#ICJWhalingCase

Whaling in the Antarctic: Part I - Setting the Stage

On 31 March 2014, the International Court of Justice (ICJ) delivered its judgment in the case of Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening). The decision comes nearly four years after Australia’s Application to the ICJ in May 2010. This decision is attracting considerable attention from the international community and popular media owing to the fact that whaling is a ‘hot-button’ animal welfare and international environmental law issue that has political, emotional, and cultural dimensions.

Whales have historically been valued as an important natural resource (think oil, meat/blubber, and 'whalebone'). Unfortunately, international regulation of this resource has proved ineffective for some time. After centuries of mismanagement, over-exploitation, and stock collapse resulting in species-switching (whereby industry shifted from species to species following depletion), the international community sought meaningful cooperative regulation through the 1930s and 1940s. After two failed agreements, the international community negotiated the International Convention for the Regulation of Whales (ICRW) in 1946 at an international conference convened by the United States of America. This whaling convention, which entered into force in 1948, currently has 88 Contracting Governments (i.e., States parties). Canada is not party to the ICRW.

The preamble to the ICRW indicates that the Contracting Governments seek to achieve “the proper conservation of whale stocks and thus make possible the orderly development of whaling”. This regime is implemented by the International Whaling Commission (IWC), which is “composed of one member from each Contracting Government” (Article III(1)). The ICRW purports to regulate whaling within all of the waters where whaling occurs (Article I(2)) and as a treaty, its development has been made possible by the creation and amendment of a regulatory Schedule that “forms an integral part” of the Convention. The large so-called ‘great whale’ species—including familiar species such as the blue whale, humpback whale, fin whale, minke whale, gray whale, bowhead whale, and right whale—are regulated by the ICRW/IWC regime pursuant to this Schedule. Importantly, the Schedule can be amended only by a vote of the IWC that carries a three-quarters majority (Article III(2)).

Despite the initial purpose of achieving a sustainable, orderly whaling industry, the Contracting Governments voted in favour of a temporary moratorium on commercial whaling in 1982 and this became effective in the 1986-87 whaling season when zero-catch quotas were set for the regulated species in paragraph 10(e) of the Schedule. This does not mean that all whaling stopped. Norway and Iceland continue to whale commercially by virtue of the fact that they opted out of this Schedule amendment as permitted by Article V(3) of the ICRW. Further, after Japan withdrew its initial objection to the commercial moratorium, it initiated a scientific whaling program called the Japanese Whale Research Program under Special Permit in the Antarctic (JARPA), which began its second phase (JARPA II) in 2005-06. JARPA II witnessed the annual national issuance of permits to take, hunt and kill 850 minke whales (+/- 10%), 50 fin whales, and 50 humpback whales (no humpback whales have been killed owing to political pressure). This has attracted considerable attention owing to the belief held by some nations that this was commercial whaling disguised as science when commercial whaling and specifically commercial whaling within whaling sanctuaries—which the Southern Ocean is—are both prohibited (paragraph 7(b) of the Schedule).

With this background in mind, I plan to deliver an 8-10 part series that investigates important aspects of this whaling case, some of its implications, and its relevance in the Canadian context. I hope you can follow along!

#ICJWhalingCase

Pipelines and Public Participation

The debate over recent changes to the rules governing public participation in regulatory hearings regarding pipelines and other energy projects may have obscured some important facts about the Joint Review Panel hearing on the proposed Northern Gateway pipeline, which concluded in June:

• 215 parties registered as interveners;
• the Panel heard over 1,500 oral statements;
• the Panel received over 9,000 letters of comment; and
• notwithstanding this level of public participation, the hearing process was completed successfully and on schedule.

These facts were highlighted in a talk last Thursday at the U of A Faculty of Law entitled “Public Participation in Energy Regulation Proceedings: Balancing Access, Orderliness and Effectiveness”. Speaker Rowland Harrison holds the TransCanada Chair in Administrative & Regulatory Law at the Faculty. As a permanent member of the National Energy Board from 1997-2011, Mr Harrison sat on pipeline hearings. He noted that while project proponents always want a faster process, they are well-served by an open process that gives all interested (rather than “directly affected”) parties a chance to express their views – and most proponents know this. He pointed out that “Enbridge did not object to any of the participation rights granted by the [Northern Gateway] Panel.”

The facts about public participation in the Northern Gateway hearing seem to demonstrate two things: First, concern regarding pipeline projects is not limited to so-called environmental activists, but is widespread among the public at large. Second, facilitating pipeline expansion does not necessarily imply restricting public participation; rather, it seems more likely that restricting participation will increase pipeline opposition. As Harrison noted, an inclusive process is required to ensure that pipeline and other energy projects obtain not only regulatory approval, but also the necessary “social licence” to proceed. For this reason, Harrison called for a liberal approach to the new restrictions on public participation that continue as much as possible the Board’s tradition of inclusivity, coupled with a “rigorous” approach to the conduct of the hearing itself.

In his talk and the discussion following, Harrison acknowledged that the reason pipeline hearings attract a high level of public participation has less to do with the pipelines themselves and more to do with the upstream implications for extraction and the downstream implications for continued reliance on fossil fuels. Pipeline hearings are not the best forum for debate regarding these implications, but currently, as Harrison pointed out, they are the only “structured forum” for raising these issues. And these issues need to be raised: governments at all levels and politicians of all parties must start balancing the need to create jobs and wealth in the present with the moral obligation to ensure that future generations have sufficient resources – natural or at least monetary – to create wealth for themselves. Striking the appropriate balance will require a genuine conversation in which both sides of the debate show some willingness to listen to the other.

Breakdown of Global Warming Talks

This is why we will probably never have a global agreement on global waming:

Poor countries pulled out of the United Nations climate talks during a fight over transferring wealth from richer countries to fight global warming.

The G77 and China bloc led 132 poor countries in a walk out during talks about “loss and damage” compensation for the consequences of global warming that countries cannot adapt to, like Typhoon Haiyan. The countries that left claim to have the support of other coalitions of poor nations, including the Least Developed Countries, the Alliance of Small Island States and the Africa Group.

Poor countries have demanded that the developed world give them $100 billion annually by 2020 to prepare for the impacts of global warming, such as heat waves and droughts. Brazil even put forward a proposal last week that would have made rich countries pay for historical greenhouse gas emissions.

Somehow, I don't think that will happen. 

Smooth It Out Now (or We Need Analog Climate Policy Analysis)

In my first year after university, I had five roommates who were extremely smart basketball fans.  I'm your typical Minnesotan hockey player, so I had a lot to learn about basketball.  I often asked my roommates questions like: Is Scott Pollard a good center? Are the Hornets hard to beat?  Does zone defense work?  They made fun of me, noting that all my questions reduced to: is X good or bad?

 

At the time, I thought: "Fine-grained knowledge can come later, right now I need the basics, and good versus bad is important info."  But over the years I've grown to appreciate how digital thinking--i.e. 0 versus 1, on versus off, good versus bad--can lead conversations astray.

 

Climate policy thinking is in need of more analog thinking.  That is, we need to be more careful to note the continuous gradations between total climate policy failure and climate policy success.  Analog climate policy thinking would give us a 1) clearer picture of current climate policies and likely future policies, and 2) let us design more effective climate regulations going forward.  Let me give two examples.

 

1. Current and Future Climate Policies: A Continuous Spectrum

When you talk climate policy you're usually talking about unilateral national, state, provincial, or local regulations, because there's no enforceable international greenhouse gas treaty.  At the same time, greenhouse gas emissions are global, so one of the primary goals of these domestic regulations is to encourage other countries to adopt stricter climate regulations.   

 

When I present research on domestic climate regulations around the world, I almost always get a very digital question: "How can you encourage other countries to act?  Good countries will help out voluntarily, and you'll never convince the bad actors."  When I present to an audience of U.S. generalists, they generally mention China as an example of a bad actor, and when I present outside the U.S. (or to U.S. environmentalists) they usually mention the U.S. as a bad actor.  Almost everyone mentions Europe as a good actor.

 

This question makes clear that the good actor/bad actor frame is actively confusing the questioner.   Even if we could say that some countries are doing better than others, every country is constantly striking a balance between climate and economic goals, and each could regulate incrementally more or less.  Europe has a cap & trade system, it's true; but it doesn't cover all emissions, and its permit price to emit a ton of carbon has fallen below 5 EUR.  (That's less than half Alberta's 15 CAD carbon price, although Alberta's regulation applies to far fewer emissions.)  And on the flip side, China has adopted numerous policies that will slow its rising greenhouse gas emissions, including massive deployment of renewable energy.  (Here's a useful Congressional Research Service summary from 2011: http://bit.ly/1dIi1Je).  Even Saudi Arabia is planning a gigantic expansion of clean energy. (http://bit.ly/1dIi1Je).  Digital thinking is giving academics an inaccurate view of the world.

 

2. Climate Policy Mechanisms: Encouraging More Action in a Continuous Climate Policy World

Digital on/off thinking has infected our climate policy design as well.  Again, one of the most important goals for unilateral climate regulations is encouraging action elsewhere.  And one of the most promising ways to do that is with matching commitments: adopting climate regulations that automatically grow more strict when other countries strengthen their own climate regulations.  As I explain in this paper, http://bit.ly/uniclimreg (see pp. 15-21), these matching policies would encourage other countries to act by rewarding them with increased environmental benefits.  

 

But the limited attempts at using matching commitments so far have been fatally flawed by on/off thinking.  For instance, the EU has said it will increase its greenhouse gas reductions from 20% to 30% if developed nations adopt “comparable” reductions through a “global agreement.”  And Australia has a similar scheme.  But these matching commitments provide no incentive to the actual policymakers around the world who are struggling with decisions to marginally tighten or loosen greenhouse gas regulation almost every day, because no individual regulator can secure a global agreement.  These on/off commitments should be replaced with matching commitments that target climate regulations that foreign regulators can actually deliver, and smoothly ratchet up in response to stricter commitments.  Perhaps the EU could commit to match a specific percentage of reductions in the US, Canada, or Australia.  And these commitments could even target regulators in important states or provinces like California and Alberta that are calibrating the strictness of their climate policies.

 

Analog thinking also reveals the problems with the current global treaty paradigm. No country can credibly commit to years of "good" climate regulation in a single treaty.  Climate policy is too complex and covers too many politically-charged areas.  Often even countries that have "model" policies, like Australia's ill-fated carbon tax, have found loopholes with major climate impacts, such as coal exports.  (See also, British Columbia's carbon tax and its proposed LNG exports.)  And even on their own terms emissions pledges will always be fragile in a democracy, as has been repeatedly shown in Australia, Canada, and Japan.  

 

This same problem will likely hamper more modest plans for climate clubs.  I share the general interest in the recent climate pact between California, Oregon, Washington, and British Columbia.  But remember the Western Climate Initiative: it was formed by Arizona, California, New Mexico, Oregon, and Washington in 2007 . . . and then abandoned by Arizona, New Mexico, Oregon, and Washington in 2011.  Fool me twice, shame on me:  analog climate thinking says we cannot be surprised when other states and countries do not live up to their climate commitments.  We need to find ways to continuously encourage them to adopt somewhat stricter regulation, whether or not they are living up to the terms of these commitments.  We need to focus more on analog matching commitments and less on promises to be good.

 

_____________________

 

And yes, I'm still working on my analog basketball analysis.  But my former roommates still make fun of me.  After watching this recent clip (starting at 1:30), one told me I was simply ahead of my time: http://watch.thecomedynetwork.ca/the-daily-show-with-jon-stewart/full-episodes/the-daily-show-with-jon-stewart---october-29-2013/#clip1033595. (U.S. version: http://huff.to/18Tm0xu.)

 

   - James Coleman

 

Cross posted at Energy Law Prof blog: http://energylawprof.wordpress.com/2013/11/04/smooth-it-out-now-or-we-need-analog-climate-policy-analysis/

Suzuki on economics

David Suzuki thinks economists are brain dead. No biggie - economics has been called the dismal science for over a century now, although when it was called so, it was because Thomas Malthus predicted that overpopulation would stretch the world's food resoruces beyond their limits ( a modern day David Suzuki in a sense).

Mike Moffat from the Ivey School makes some more obvious points in his rejoinder.