Self-Government by Side Agreement?
Timothy Dickson*
to
the
This
in 2000,
the Nisga’a
article discusses
reconcile Aboriginal
use of non-
constitutionally entrenched agreements as part of a
treaty package
interests,
especially self-government. With the ratification of the
Nisga’a Treaty
received
constitutional entrenchment of their right to self-
government. Other First Nations, especially
those
involved in the British Columbia treaty process, also
benefited insofar as they received a model for self-
government centered on constitutional protection. The
2002 BC referendum on treaty principles introduced
into
style of self-
government, however, and the overwhelming voter
support that model received requires that it must be
seriously considered. First Nations have matched the
enthusiasm of BC voters with adamant rejection of the
municipal model, and thus the self-government issue
threatens to drag the negotiations down into deadlock.
the discussions a municipal
side
agreements can provide
The author examines whether self-government by
way of non-constitutionally entrenched side agreements
can provide a viable compromise. The author concludes
that while
some
constitutional protection,
this protection must be
explicitly written into the treaty. The danger posed to
core Aboriginal interests by the reconciliation of self-
government
through a non-constitutionally
entrenched agreement further requires that courts hold
government parties to high standards of good faith
during the negotiations.
rights
celles
6tablis
comme
participant
particuli~rement
Cet article discute l’utilisation des accords non
constitutionnellement
pattie du
raglement global
tenant compte des inttr~ts des
autochtones, particulirement en mati~re d’autonomie
gouvernementale. Avec la ratification du Trait6 Nisga’a
en 2000, les membres de la nation Nisga’a ont obtenu
l’6tablissement dans la constitution de leur droit A
l’autonomie gouvemementale. Les autres Premires
Nations,
au
processus de conclusion de traitts en Colombie-
Britannique, en ont aussi b6n6fici6 dans la mesure oti
elles se sont vu offertes un modele d’autonomie
gouvernementale
protection
constitutionnelle. Toutefois, le referendum de 2002 sur
les principes a introduit un mod~le d’autonornie
gouvernementale inspir6 du module municipal, et le
support considerable qu’il a requ des 6lecteurs exige
qu’il soit s~rieusement consider6. Les PremiEres
Nations ont repondu A l’enthousiasme 6lectoral par un
rejet categorique du modele municipal, craant ainsi un
risque que les questions d’autonomie gouvernementale
ne conduisent les n~gociations h l’impasse.
fond6
sur
la
L’auteur se demande si accorder l’autonomie
gouvemementale par le biais d’accords collatdraux non
sanctionns par
la constitution pourrait 8tre un
compromis viable. LUauteur soutient que si de telles
ententes offrent un certain niveau de protection
constitutionnelle, cette protection doit nianmoins etre
explicitement accordee dans le texte du traitS. De plus,
le danger pour les int~r~ts autochtones de reconnaitre le
droit I I’autonomie gouvernementale par
le biais
d’accords
la
constitution exige que les tribunaux tiennent les parties
gouvemementales I un haut standard de bonne foi dans
le deroulement des ntgociations.
sanctionnts par
collatraux
non
B.A. (McGill); LL.B. (Toronto); law clerk, BC Court of Appeal, 2003-2004. I am grateful to
Patrick Macklem for his guidance during the writing of this article and to Kate Stoeckel, the
anonymous reviewers, and the editors of the McGil Law Journal for their helpful comments. I would
also like to thank the British Columbia Treaty Commission for their support. Any errors of form or
substance are mine alone. This article was written in my personal capacity prior to my clerkship with
the Court of Appeal.
McGill Law Journal 2004
Revue de droit de McGill 2004
To be cited as: (2004) 49 McGill L.J. 419
Mode de rf6rence : (2004) 49 R.D. McGill 419
420
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 49
Introduction
I. Negotiations Between Government and First Nations
A. The Treaty Processes
B. Side Agreements
II. Side Agreements as Contractual Relationship
A. The Rule of Law
B. The Fiduciary Duty
Ill. Side Agreements and the Treaty Relationship
A. Justification as Right
B. The Variable Content of Justificatory Rights
IV. Side Agreements and the Duty to Negotiate in Good Faith
A. Justificatory Rights as the Minimum Measure of Protection
B. The Requirement of Flexibility
Conclusion
421
422
426
429
435
438
443
449
452
454
459
461
463
465
2004]
T DICKSON – SELF-GOVERNMENT BY SIDE AGREEMENT?
Introduction
In 1990, the Council for Yukon Indians and the Canadian and Yukon governments
ratified the Yukon Umbrella Final Agreement (“UFA”).’ The UFA specified the terms
to be included in the eventual treaties signed by the First Nations involved in the
treaty process. Under the UFA system, provision can be made for self-government,
but not within the treaty itself. Rather, self-government is negotiated under a separate
side agreement, which is not constitutionally protected. Under this system, the self-
government powers of First Nations are apparently not shielded from unilateral
repudiation by a legislature exercising its legislative sovereignty.
Recently, a similar model has been introduced to the bargaining table in the
British Columbia treaty process. The referendum on treaty principles launched by the
BC government in the summer of 2002 indicated, amid a storm of protest from First
Nations, overwhelming support for a non-constitutional model of self-government. It
seems self-government by side agreement will be a defining issue in the BC treaty
negotiations for at least the next few years.
In this paper, I explore the perils and possibilities of using side agreements as a
tool in the project of reconciling First Nation and state interests through negotiation.
The motivation for the study is a belief that a greater variety of tools in this project
may-if used in good faith-lead to deals that better reflect the real preferences of the
parties. A central justification of negotiations as a means of reconciliation is the
assertion
to that
maximization is the existence of a variety of choices from which the appropriate good
can be selected.
individually-defined goods, and crucial
that
they maximize
While the discussion is relevant to side agreements concerning any subject matter,
the focus of the paper is on self-government because it most directly engages the
threat that side agreements pose to Aboriginal sovereignty. In exploring these
questions, I do not suggest that First Nations do not have existing constitutional rights
to self-government that ought to be the subject of constitutionally protected treaties.
Rather, my intention is to search for means by which the deep lack of mutuality
implicit in side agreements might be mitigated, so that First Nations may have another
viable option within the negotiation process. If side agreements can be rendered
consistent with the nation-to-nation relationship, then they might be appropriate
instruments for some First Nations in certain situations. Counterintuitively, this may
especially be the case in the context of self-government, given the present BC
government’s high level of resistance
to the constitutional model. If the BC
government is willing to pay dearly for a delegated model, side agreements may be a
rational choice for some First Nations.
‘Infra note 5.
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My examination of side agreements is structured around the observation that they
are contracts arising out of a treaty relationship. In Part I, I discuss the relationship of
side agreements to modem treaty negotiation processes, and outline two opposing
views on whether side agreements are appropriate in the context of self-government.
In Part II, I examine the perils that the contractual relationship poses to Aboriginal
sovereignty. The specific threat is the modification or cancellation of the side
agreement through legislation, but the deeper threat is the subjection of First Nations’
interests to the policy preferences of the majority. I examine two arguments that might
be launched against legislative cancellations and demonstrate why arguments not
grounded in a constitutional relationship ultimately fail. In Part Il, I explore aspects
of side agreements that incorporate the treaty relationship and the possibilities they
yield for mitigating the threat to Aboriginal sovereignty posed by the contractual
model. I find that side agreements can be shielded by a treaty, such that legislated
interference with an agreement is valid only if the aggrieved First Nation is
accommodated in specific ways. Nonetheless, I emphasize in Part IV that the value of
side agreements lies in the expansion of choice for First Nations and urge that such
choice is dependent upon the government parties being held to their duties to
negotiate in good faith.
I. Negotiations Between Government and First Nations
The relationship between First Nations and the Canadian state has its roots in
treaties. Between the early seventeenth century and 1921 almost five hundred such
treaties were formed.’ Some of these treaties contained mutual promises of peace and
friendship. In others, the First Nation was required to “cede, release and surrender”
land in exchange for money, goods, and recognized rights to smaller plots of land.
Treaties of the latter kind opened Canada up to European settlement and agricultural
development. Formed mainly after 1850, these treaties secured for the Crown
unencumbered title throughout most of the country. In British Columbia, the Yukon,
and the Northwest Territories, however, much of the land was left unsettled by the
treaty process. In BC, only five treaties were formed covering a minority of the
province.
After many decades of inactivity, governments and First Nations have begun to
sign treaties once again. Beginning with a national process, the modem phenomenon
of treaty making has increased in both size and political importance, such that there
the
now also exists a specialized BC process. The national process, styled
2 Most of these treaties, of course, were not signed by Canada, but were concluded by colonial
powers occupying parts of the territory now called Canada. See Canada, Report of the Royal
Commission on Aboriginal Peoples: Looking Forward, Looking Back, vol. 1 (Ottawa: Canada
Communication Group, 1996) at 29-244; James [Sdkfj] Youngblood Henderson, “Empowering
Treaty Federalism” (1994) 58 Sask. L. Rev. 241.
2004]
T DICKSON – SELF-GOVERNMENT BY SIDE AGREEMENT?
423
“Comprehensive Claims Process”, was initiated in 1974 as a direct result of the
Supreme Court of Canada’s decision in Calder v. A.G.B.C.3 rendered the previous
year. That decision marked the formal introduction of Aboriginal title as a concept
with real substantive content in Canadian law. While the Court split evenly on the
question of whether title continued to exist, the case cast previous assumptions about
the status of lands across parts of Canada into doubt. That uncertainty was the
underlying motivation for the establishment of the federal treaty process. The primary
goal of the process is “to negotiate modem treaties which will provide a clear, certain
and long-lasting definition of rights to lands and resources for all Canadians.” ‘4 The
national process has resulted in thirteen comprehensive
treaties,’ involving First
Nations in Quebec, the Yukon, the Northwest Territories, and British Columbia.
While the Calder decision gave substance to the concept of Aboriginal title, it
also made clear that title was susceptible to extinguishment by legislation with a
sufficiently “clear and plain” intention to do so and passed by a “competent legislative
authority”, meaning Parliament. Other decisions of the Court stated a similar
‘[1973] S.C.R. 313, 34 D.L.R. (3d) 145 [Calder cited to S.C.R.].
4 See Indian and Northern Affairs Canada, Comprehensive Claims Branch, online: Comprehensive
Claims Branch-Indian and Northern Affairs Canada
‘ See James Bay and Northern Quebec and Complementary Agreements, 11 November 1975
(Sainte-Foy, Que.: Les Publications du Qu6bec, 1998), online: Indian and Northern Affairs Canada
[James Bay Agreement]; The Northeastern
Quebec Agreement, 31 January 1978 (Ottawa: Indian and Northern Affairs Canada, 1984), online:
Agreement, 5 June 1984 (Ottawa: Indian and Northern Affairs Canada, 1984), online:
1992 (Ottawa: Indian and Northern Affairs Canada, 1992), online:
Northern Affairs Canada, 1993), online:
Umbrella Final Agreement Between the Government of Canada, The Council for Yukon Indians and
the Government of the Yukon, 29 May 1993, online:
First Nation (1993), the Champagne and Aishihik First Nations (1993), the Teslin Tlingit Council
(1993), the First Nation of Na-cho Ny’a’k Dun (1993), the Little Salmon-Carmacks First Nation
(1997), the Selkirk First Nation (1997), and the Tr’ondek H’wechin First Nation (1998)); Sahtu Dene
and Metis Comprehensive Land Claim Agreement, 6 September 1993 (Ottawa: Public Works and
Government Services Canada, 1993), online:
Nisga’a Final Agreement, 27 April 1999, online:
Comprehensive Claims (Modern Treaties) in Canada, online:
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vulnerability on the part of treaties.’ The introduction of section 35 into the
constitution therefore marked a dramatic shift in the relationship between First
Nations and the Canadian state.7 With respect to treaties, section 35 reformulated
treaty federalism in two directions. First, subsection 35(1) recognized and affirmed
the constitutional status of those historical treaties that had not been extinguished or
surrendered, and so were still in existence at the passage of the Constitution Act,
1982. Those treaties can no longer be infringed without just cause.! Thus, section 35
had a retrospective effect on Aboriginal-state relations. Added three years later in a
subsequent constitutional conference, subsection 35(3) also opened the door to future
constitutional negotiations. That subsection clarifies subsection 35(1), stating that the
“treaty rights” it refers to “includ[e] rights that now exist by way of land claims
agreements or may be so acquired.”‘9
Just as the Calder decision provoked the establishment of the federal treaty
process, so the Supreme Court’s Sparrow decision” spurred the initiation of a British
Columbian treaty process. Prior to that decision, the BC government had persistently
refused to deal with First Nations. As Governor Douglas refused to sign treaties
despite overwhelming national pressure, the BC government of the 1970s and 1980s
6 Simon v. The Queen, [1985] 2 S.C.R. 387 at 406, 24 D.L.R. (4th) 390; R. v. Sioui, [1990] 1 S.C.R.
1025 at 1061, 70 D.L.R. (4th) 427; Calder, supra note 3 at 404; and R. v. Badger, [1996] 1 S.C.R. 771
at para. 41, 133 D.L.R. (4th) 324 [Badger cited to S.C.R.].
7 Constitution Act, 1982, s. 35, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
‘ See Badger, supra note 6 at para. 85 where Cory J., for the majority, stated that “the recognized
principles to be considered and applied in justification [of an infringement of a treaty] should
generally be those set out in Sparrow.” The Sparrow test was articulated in R. v. Sparrow, [1990] 1
S.C.R. 1075, 70 D.L.R. (4th) 385 [Sparrow cited to S.C.R.]. Under the Sparrow test, those impugning
a statute or regulation must prove that there has been prima facie infringement, after which the Crown
bears the onus of proving that it was justified. In determining whether there has been prima facie
infringement, the Court should consider these questions: “First, is the limitation unreasonable?
Second, does the regulation impose undue hardship? Third, does the regulation deny to the holders of
the right their preferred means of exercising that right?” (ibid. at 1112). To prove that an infringement
is justified the Crown must show, first, that it was enacted pursuant to a valid legislative objective, and
second, that it is consistent with the Crown’s fiduciary relationship with Aboriginal peoples. The
analysis of this latter question should be guided by such questions as: “whether there has been as little
infringement as possible in order to effect the desired result; whether, in a situation of expropriation,
fair compensation is available; and, whether the aboriginal group in question has been consulted with
respect to the conservation measures being implemented” (ibid. at 1119).
Section 35, subsections (1) and (3), state:
(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are
hereby recognized and affirmed.
(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now
exist by way of land claims agreements or may be so acquired.
“‘Sparrow, supra note 8.
2004]
T DICKSON – SELF-GOVERNMENT BY SIDE AGREEMENT?
425
did not participate with First Nations and the federal government in a claims process.
In light of the Court’s holding in Sparrow that subsection 35(1) “affords aboriginal
peoples constitutional protection against provincial legislative power,”‘ the provincial
government relented. The British Columbia Claims Task Force'” was established the
following year, and a province-wide claims process, supervised by the British
Columbia Treaty Commission, commenced in 1993. There are currently fifty-five
First Nations involved in the process organized around forty-five negotiation tables.3
While obiter comments in Calder stated that Aboriginal title would theoretically
exist as long as it remained unsurrendered or unextinguished by Parliament, that
decision did not conclude whether Aboriginal
title continued to exist in British
Columbia as a matter of fact. The Sparrow decision held that at least some fishing
rights continue to exist and are constitutionally protected, but it failed to clarify
whether title continues under section 35. It was not until the Court’s decision in
Delgamuukw v. British Columbia” in 1997 that the debate was resolved. The Court’s
holding-that title continued to exist, that it is “a right to the land itself’ rather than a
“mere bundle of rights”, and that it is now constitutionally protected-again
dramatically reformulated
the relationship between BC First Nations and the
Canadian state.
The most significant effects of Delgamuukw, however, will not be subsequent
cases where First Nations are successful in proving title. Rather, its most far-reaching
implications will lie in the mere threat of such litigation, and the consequent increase
in bargaining power for First Nations involved in treaty negotiations. In Delgamuukw,
the Court explicitly preferred constitutional negotiations to litigation as the best means
for achieving the purpose of section 35. That purpose was identified in the 1996
Supreme Court case of R. v. Van der Peet as “the reconciliation of the pre-existence of
aboriginal societies with the sovereignty of the Crown.”‘”
In Delgamuukw, the
majority decision of the Court ended with a resounding endorsement of negotiations.
While the Court ordered a new trial, it baldly urged the parties to settle through
negotiations:
mhis litigation has been both long and expensive, not only in economic but in
human terms as well. By ordering a new trial, I do not necessarily encourage
the parties to proceed to litigation and to settle their dispute through the courts.
As was said in Sparrow, at p. 1105, s. 35(1) “provides a solid constitutional
“Ibid. at 1105.
2 See BC Treaty Negotiations Office, The Report of the British Columbia Claims Task Force,
online: Treaty Negotiations Office
Claims Task Force].
” See BC Treaty Commission, Negotiation Update, online: BC Treaty Commission
‘[1997] 3 S.C.R. 1010, 153 D.L.R. (4th) 193 [Delgamuukw cited to S.C.R.].
[1996] 2 S.C.R. 507 at 539, 137 D.L.R. (4th) 289.
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base upon which subsequent negotiations can take place”. Those negotiations
should also include other aboriginal nations which have a stake in the territory
claimed. Moreover, the Crown is under a moral, if not a legal, duty to enter into
and conduct those negotiations in good faith. Ultimately, it is through
negotiated settlements, with good faith and give and take on all sides,
reinforced by the judgments of this Court, that we will achieve what I stated in
Van der Peet, supra, at para. 31, to be a basic purpose of s. 35(l)–“the
reconciliation of the pre-existence of aboriginal societies with the sovereignty
of the Crown”. Let us face it, we are all here to stay.’ 6
Thus, political negotiations have usurped litigation as the judicially preferred means
of achieving reconciliation.
A. The Treaty Processes
While modem treaty negotiations are largely political in nature, they are guided
by a legal framework. As the Court indicated in Delgamuukw, once the Crown enters
into negotiations it must conduct itself in good faith.” Other courts have since
reinforced this view of negotiations, acknowledging that while they are political, the
courts do have a supervisory role. Chemainus First Nation v. British Columbia Assets
and Lands Corporation reaffirmed the Crown’s duty once it entered negotiations to
“genuinely negotiate … without oblique motive.””s
In Gitanyow First Nation v.
Canada, Williamson J. rejected the Crown’s contention that “the B.C. process is a
political exercise, encouraged by the courts, and not amenable to judicial supervision
or the ‘supplanting’ of the Treaty Commission by the courts.”‘” Rather, Williamson J.
favoured a view of the courts’ role as delineating the appropriate duties of the parties,
arguing that “while the courts should be chary of interfering in the process itself, it is
appropriate for the courts to assist in determining the duties of the parties involved in
that process, in particular when the obligations of the Crown in dealing with
Aboriginal peoples have been recognized only after judicial pronouncement.
20
A legal framework also informs treaty negotiations in that First Nations come to
the table bearing credible assertions of constitutionally protected rights. That is, the
federal and provincial Crowns have more than merely humanitarian reasons for
forming treaties. Those tracts of land throughout Canada, including most of BC, that
were not the subject of the historical treaties have had their status rendered uncertain
by the passage of section 35 and its subsequent judicial interpretation. The threat of
many rounds of prolonged litigation in which First Nations might succeed in proving
‘6 Delgamuukw, supra note 14 at 1123-24.
‘7 Ibid.
“[1999] 3 C.N.L.R. 8 at para. 26, [1999] B.C.J. No. 682 (QL) (B.C.S.C.) [Chemainus].
“[1999] 3 C.N.L.R. 89 at para. 61, [1999] B.C.J. No. 659 (QL) (B.C.S.C.) [Gitanyow cited to
C.N.L.R.]. These words are Wiliamson J.’s paraphrase of the Crown’s argument.
20Ibid. at para. 63.
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T DICKSON – SELF-GOVERNMENT BY SIDE AGREEMENT?
title, coupled with the present loss of investment due to the uncertainty of the lands,
combine to provide governments with a powerful incentive to settle. Section 35 and
Delgamuukw have made First Nations with outstanding claims forces that must be
reckoned with. As the Court stated in Sparrow and reconfirmed in Delgamuukw,
section 35 “provides a solid constitutional base upon which subsequent negotiations
can take place.”2’
Central to the negotiations is the constitutional status of the resulting treaties. This
constitutional status flows from a single provision of the treaty, usually in the
“General Provisions” chapter, which declares that the agreement is “a treaty and a
land claims agreement within the meanings of Sections 25 and 35 of the Constitution
Act, 1982 “‘2′ Rights contained within the treaty are then protected through a
combination of subsections 35(1) and 35(3) from unilateral government infringement
to the degree that the infringement is unjustified. While debate continues over the
appropriate standard of justification to which government should be held, it is
generally agreed that the standard should be at least as strenuous as that for
Aboriginal rights. 3 That latter standard was outlined by the Court in Sparrow and has
been affirmed and applied numerous times since, both to Aboriginal and treaty
rights. 4
The Sparrow two-pronged justificatory test is very similar to the justificatory test
applied under section 1 of the Canadian Charter of Rights and Freedoms.” The
Crown must first demonstrate that its interference with the Aboriginal or treaty right is
pursuant to a valid legislative objective, and second, that the manner in which that
objective is attained is in keeping with the Crown’s fiduciary duty to Aboriginal
people. In Sparrow, the Court noted three factors relevant to this latter analysis:
“whether there has been as little infringement as possible in order to effect the desired
2, Sparrow, supra note 8 at 1105; Delgamuukw, supra note 14 at 1123.
22 See e.g. Nisga’a Final Agreement, supra note 5, c. 2, s. 1; Umbrella Final Agreement, supra note
5 (the Yukon final agreements state (at c. 2) that they “shall be land claims agreements within the
meaning of section 35 of the Constitution Act, 1982”).
23 See Halfway River First Nation v. B.C. (Minister of Forests) (2000), 178 D.L.R. (4th) 666 at para.
127, [1999] 4 C.N.L.R. 1 (B.C.C.A.) [Halfway River] for a recent application of the view that the
Sparrow test applies to treaty rights. But see Leonard I. Rotman, “Defining Parameters: Aboriginal
Rights, Treaty Rights, and the Sparrow Justificatory Test” (1997) 36 Alta. L. Rev. 149 (for the
opposing view that the Sparrow test should not be applied to treaty rights given their consensual
nature).
24 On the application of the Sparrow test to treaty rights, see R. v. Joseph, [1990] 4 C.N.L.R. 59 at
67, 69, [1990] B.C.J. No. 1749 (QL) (B.C.S.C.); R. v. Bombay, [1993] 1 C.N.L.R. 92 at 94, [1993]
O.J. No. 164 (QL) (Ont. C.A.); R. v. Jones (1993), 14 OR. (3d) 421 at 431, [1993] 3 C.N.L.R. 182
(Ont. Prov. Div.); R. v. Gladue, [1994] 2 C.N.L.R. 101 at 103, [1993] A.J. No. 1063 (QL) (Alta. Q.B.);
R. v. Fox, [1994] 3 C.N.L.R. 132 at 136, [1994] O.J. No. 667 (QL) (Ont. C.A.); and Badger, supra
note 6 at para. 85.
25 Part I of the Constitution Act, 1982, supra note 7.
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result; whether, in a situation of expropriation, fair compensation is available; and,
whether the aboriginal group in question has been consulted with respect to the
conservation measures being implemented.” 2
respect Aboriginal
Those who advocate the treaty process as a suitable means for First Nations to
gain recognition of their rights emphasize the potential to build a new relationship
with the state based on “mutual trust, respect, and understanding”.27 Others assert that
treaties
sovereignty by embodying a “nation-to-nation”
relationship. 28 However, while treaties recognize some rights of the First Nation and
grant them constitutional protection, they also define and limit those rights in an
attempt to eliminate uncertainty over jurisdiction and the status of lands and
resources. Provisions that restrict the rights of the First Nation to those defined in the
treaty are generally referred to as the “certainty” provisions.
Federal policy on certainty, developed for the Comprehensive Claims Process,
originally adopted the “cede, release and surrender” requirement of the historical
treaties. The James Bay and Northern Quebec Agreement contains this language.9
Vehement opposition to this extinguishment policy has prompted changes to the
federal approach. Recent alternatives include “modifying” Aboriginal title or stating
that the parties agree that the Aboriginal rights of the First Nation are limited to those
defined in the treaty.’ Despite these new approaches, however, some BC First Nations
Sparrow, supra note 8 at 1119.
27Report of the BC Claims Task Force, supra note 12, Recommendation 1.
See Canada, Report of the Royal Commission on Aboriginal Peoples: Restructuring the
Relationship, Part One, vol. 2 (Ottawa: Supply and Services Canada, 1996) at 18.
29Supra note 5. Section 2.1 states
In consideration of the rights and benefits herein set forth in favour of the James
Bay Crees and the Inuit of Quebec, the James Bay Crees and the Inuit of Quebec
hereby cede, release, surrender and convey all their Native claims, rights; titles and
interests, whatever they may be, in and to land in the territory and in Quebec, and
Quebec and Canada accept such surrender.
o See e.g. Nisga’a Final Agreement, supra note 5 at c. 2, s. 24:
Notwithstanding the common law, as a result of this Agreement and the settlement
legislation, the aboriginal rights, including aboriginal tide, of the Nisga’a Nation, as
they existed anywhere in Canada before the effective date, including their attributes and
geographic extent, are modified, and continue as modified, as set out in
this
Agreement.
3′ See e.g. Nisga’a Final Agreement, ibid., c. 2, s. 23. A new model developed for the Innu of
Mamuitun simply relies on this kind of statement. This model is embodied in a memorandum of
understanding called the “Common Approach”. Indian and Northern Affairs Canada, Common
Approach at 5.1, online:
In order to attain the desired degree of legal certainty, the treaty shall contain a clause to
the effect that the title and rights defined and confirmed in the treaty constitute the
rights of the Innu of Mamuitun on the territory of Quebec that are referred to in section
2004]
T DICKSON – SELF-GOVERNMENT BY SIDE AGREEMENT?
429
remain opposed to the treaty process on the basis that the rights limitation language
constitutes a fundamental lack of mutuality between the parties. The Union of BC
Indian Chiefs (“UBCIC”), which represents some of these First Nations, has
denounced certainty as inherently assimilative:
Canada’s striv[ing] for certainty reflects a desire that Indigenous Peoples
assimilate into Canada, that we sever our connection to the Land. Canada asks
that we dig up the roots connecting us to the Land and replant them through
treaties. This lack of understanding and fear about our connection to the Land
is what Canada strives to address through certainty.”
Whereas government stresses the need for finality on the question of Aboriginal rights
and title, many First Nations urge that the aim of treaty negotiations should be a
constitutional relationship that is capable of ongoing growth.
B. Side Agreements
While constitutionally protected treaties are generally regarded as the primary
instrument for reconciliation within modem land claims processes, they are not the
only instrument. Not all agreements between parties are included in the treaty so as to
receive section 35 protection. There is another species of agreement-called side
agreements-that are alluded to within the treaty, but that have their specific terms
defined in another agreement that remains outside the treaty. Side agreements are a
means of attaching a contractual relationship to an overall treaty relationship.
It is quite common for modem treaties to anticipate one or more side agreements.
The Nisga’a Final Agreement (“Nisga’a Treaty”) contemplates four side agreements:
an own source revenue agreement, a fiscal financing agreement, a taxation agreement,
and a harvest agreement.33 The agreement-in-principle, called the Tlicho Agreement,
recently signed by the Dogrib Treaty 11 Council and the federal and NWT
governments, anticipates two types of side agreement: intergovernmental services
35 of the Constitution Act of 1982 and that these rights shall be exercised within the
exclusive terms and conditions and land area set out in the treaty.
32 See Union of British Columbia Indian Chiefs, Certainty: Canada’s Struggle to Extinguish
Aboriginal itle, at para. 3, online: Union of British Columbia Indian Chiefs
33 See generally online: Nisga’a Lisims Government
agreements can be found on the Indian and Northern Affairs Canada Web site: Indian and Northern
Affairs Canada, Nisga’a Nation Own Source Revenue Agreement, online:
Financing Agreement, online:
Indian and
Northern Affairs Canada, Nisga’a Nation Taxation Agreement, online:
Harvest Agreement, online:
[Harvest
Agreement].
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agreements and financing agreements. ‘ Lastly, in the Yukon process, which
is
conducted according to the Yukon UFA, self-government is to be concluded by way
of side agreement.”
There are three essential features of side agreements. First, they are alluded to
within the treaty. Provisions within an appropriate chapter of the treaty lay out certain
agreed-upon guidelines for the eventual side agreement and indicate whether any duty
to negotiate such agreements exists, and if so, for whom. There is a range of possible
levels of the duty to negotiate. The treaty might not place any duty on the parties to
enter negotiations and may merely delineate the guidelines for the agreement in case
both parties wish to enter into such a relationship.” Alternatively, the treaty might give
one party the right to initiate negotiations, in which case the other party or parties
have a corresponding duty to negotiate in good faith,37 or the treaty might mandate
that the parties conclude an agreement. 8
The second essential feature of side agreements is provisions within the treaty that
locate the side agreement outside the treaty, and so deny it constitutional protection.
Such provisions range in explicitness of language. The simpler provisions only
exclude the side agreement from the treaty,9 while the more complex ones specifically
exclude the agreement from the application of sections 25 and 35.’ These provisions
may or may not be repeated in the side agreement. The last essential feature of a side
agreement is, of course, the actual agreement itself. The agreement may refer to the
treaty in its recitals or in the general provisions, or it may not refer to the treaty at all.
4 Indian and Northern Affairs Canada, Ticho Agreement, online:
31 See Council of Yukon First Nations, supra note 5.
” The language of such provisions is permissive, such as the parties “may enter into an agreement.”
See e.g. Tlicho Agreement, supra note 34, s. 12.4.5 (allowing for an agreement between government
and a renewable resources board created by the treaty).
37 Such provisions might be worded this way: “Party X shall enter into negotiations with Party Y if
it so requests with a view to concluding a Z agreement.” See e.g. Umbrella Final Agreement, supra
note 5, s. 24.1.1 (apprehending the negotiation of self-government agreements).
38 These provisions are phrased in the imperative and refer to all parties, such as: “the Parties will [or
shall] enter into a Z Agreement.” Softer versions of this kind of provision might only talk of the
parties entering into negotiations “with a view to concluding a Z agreement.” See e.g. Nisga’a Final
Agreement, supra note 5, c. 8, s. 21 (for an example of strong language see the Harvest Agreement,
supra note 33).
” See Tlicho Agreement, supra note 34 in which two side agreements are apprehended (c. 7).
Sections dealing with the intergovernmental services agreements and the financing agreements have
provisions stating that those agreements “shall not form part of the Agreement” (s. 7.10.8 and s.
7.11.10, respectively).
‘ An example can again be drawn from the Harvest Agreement in the Nisga’a Final Agreement.
See Nisga’a Final Agreement, supra note 5, c. 8, s. 24 (“The Harvest Agreement is not intended to be
a treaty or land claims agreement, and it is not intended to recognize or affirm aboriginal or treaty
rights, within the meaning of sections 25 or 35 of the Constitution Act, 1982″).
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0T DICKSON – SELF-GOVERNMENT BY SIDE AGREEMENT?
Other features are common, but are not found in every case. The terms of some
side agreements state that the agreement binds the parties,” or that the agreement may
“be amended by written agreement of all the Parties.” 2 Side agreements often
incorporate dispute resolution procedures. 3 Some provide that the government parties
will “recommend”
that legislation be passed
implementing the agreement. Obviously such legislation is necessary with respect to
self-government agreements, but implementing legislation was also required in the
Nisga’a harvest and taxation agreements,”
their respective
to
legislatures
One other feature of side agreements is important. For some side agreements, the
treaty shields the agreement from unilateral government breach. The treaty provisions
that apprehend the side agreement provide that any government interference with the
agreement is only valid if the First Nation is accommodated. The only form of such
accommodation
is
consultation. 5 In Part 1I of this essay, however, I argue that such forms of
accommodation might include any of the elements of the Sparrow justification test. I
point to these justificatory rights as means of transforming side agreements from mere
contracts into more appropriate instruments of reconciliation.
that has so far been attached
to existing side agreements
For now, it is enough to observe that side agreements establish relationships that
are at once both private and constitutional in nature. They are contracts that support,
and are supported by, treaties. They are therefore a curious blend of legal regimes and
can serve as a model for observing the interaction of private and public law. Yet side
agreements possess more than academic relevance. In treaty processes in British
Columbia and other areas of Canada where the status of land remains uncertain, side
agreements are being used to define aspects of the relationship between First Nations
and the state. That these agreements arise out of treaty processes is central to their
relevance. As discussed above, many of the justifications for preferring treaty making
over litigation as a mode of reconciliation centre on the potential for nation-to-nation
relationships between the parties. The mutual respect implicit in the word “treaty” is
seen as crucial. The constitutional protection accorded treaties recognizes that the
sovereignty of Canada is inherently defined by the rights of Aboriginal peoples. In
eschewing that constitutional protection, side agreements immediately appear to
” See e.g. Tlicho Agreement, supra note 34, s. 7.10.9 (stating that an intergovernmental services
agreement shall bind the parties).
42 See e.g. Harvest Agreement, supra note 33, s. 28; Nisga’a Nation Own Source Revenue
Agreement, supra note 33, s. 47 (although slightly different wording is used).
41 See e.g. Harvest Agreement, ibid., s. 24; Nisga ‘a Nation Own Source Revenue Agreement, ibid.,
ss. 35-38; Taxation Agreement, supra note 33, ss. 41-48.
” The Nisga’a Treaty calls for legislation implementing the Harvest Agreement (ibid.) in chapter 8,
section 23. With regard to the Taxation Agreement (ibid.), the Treaty deals with the legislation in
chapter 16, section 23, and the Nisga’a Final Agreement (supra note 5) calls for it in sections 39-40.
4′ The self-government agreements concluded under the Yukon UFA are currently the only existing
side agreements that are shielded by the treaty in this way.
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abandon the mutuality that is so central to reconciliation through negotiations. If
government is not constitutionally restrained from interfering with the agreement,
then the relationship remains stubbornly vertical, with First Nations yet again at the
bottom.
Many side agreements do not merit these strong criticisms because they do not
engage the cluster of interests that surround the sovereignty of First Nations. Rather,
they deal with aspects of the First Nation-state relationship that are highly variable,
and so require an instrument more easily amendable by the parties than the treaty
itself. One such agreement, the Nisga’a Own Source Revenue Agreement, sets out
how the Nisga’a will contribute to the cost of Nisga’a government. It is designed to
guide a progressive reduction of BC and Canadian financing. In keeping with this
graduated process, the agreement has an initial term of twelve years 6 and is to be
renegotiated before the end of that term. 7 The Nisga’a Own Source Revenue
Agreement demonstrates
to define
relationships that are more dynamic than the treaty relationship. Insofar as these
relationships acknowledge the need for continued, evolving dealings between the
parties, they are somewhat akin to the vision of an ongoing relationship forwarded by
some First Nations.
the valuable potential of side agreements
Other side agreements engage interests that touch upon the sovereignty of First
Nations, and therefore merit close examination. The Harvest Agreement concluded
pursuant to the Nisga’a Treaty subsumes the Nisga’a fishery under the conservation
concerns of the federal government by giving the minister the right to set annual fish
allocations. 8 Cases such as R. v. Gladstone9 and Sparrow illustrate that for some First
Nations the right to fish according to their own community rules is important. The
Dogrib
the
intergovernmental services side agreement is “to provide for the management,
administration and delivery of health, education, welfare, family and other social
services and programs to persons other than Tlicho Citizens on Tlicho lands or in a
Tlicho community and to Tlicho Citizens.””0 The delivery of social programs such as
these is no side issue.
the primary objective of
agreement-in-principle
states
that
In the Yukon treaty process side agreements are used to address interests that go
straight to the core of Aboriginal sovereignty. Under the UFA system, governance is
defined and protected through side agreements. Thus, Yukon First Nations that
conclude such agreements enjoy some governmental powers, but those powers are not
constitutionally entrenched as treaty rights. So far, seven of eleven Yukon First
46 Nisga’a Nation Own Source Revenue Agreement, supra note 33, s. 40.
41 Ibid., s. 43.
4’ The Nisga’a Final Agreement, however, does set certain minimum allocations, and gives a right to
compensation if these levels are not met (supra note 5, c. 8, s. 22).
41 [1996] 2 S.C.R. 723, 134 D.L.R. (4th) 648.
‘ Tlicho Agreement, supra note 34, s. 7.10.3.
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Nations have signed self-government agreements.’ While the establishment of the
Nisga’a Lisims Government gained international attention, the land area subject to
their jurisdiction is minute in comparison to that at issue in the Yukon process.
The model of self-government by side agreement has relevance beyond the
borders of the Yukon Territory. The BC Treaty Negotiations Referendum (“Treaty
Referendum”) held in the summer of 2002 demonstrated that there is very significant
support in the province for a delegated model of self-government. The referendum
proposed eight principles of treaty negotiations and asked the BC electorate whether
the provincial government should
table. The
overwhelming support that all eight principles received was immediately interpreted
by Premier Gordon Campbell as “a resounding vote of confidence in both the treaty-
making process and the principles that my government will take to the table on the
people’s behalf.”2 Principle 6, which held that “Aboriginal self-government should
have the characteristics of local government, with powers delegated from Canada and
British Columbia” received 87.25 per cent of the 615,977 valid votes. 3
the bargaining
to
take
them
The Treaty Referendum is but one manifestation of long-standing opposition in
British Columbia to constitutionally protected self-government. For instance, as
leader of the official opposition, Gordon Campbell launched a legal challenge to the
Nisga’a Treaty.’ While the challenge failed, another action is now being taken
forward by different parties.5 Opposition to constitutionalized self-government is also
broadcasted through the media. Rafe Mair, a prominent BC radio commentator, has
voiced sustained criticism of the direction of the treaty negotiations for years. 6 With
“, The First Nations that have signed self-government side agreements are the First Nation of Nacho
Nyak Dun, the Champagne-Aishihik First Nation, the Vuntut Gwichin First Nation, the Teslin Tlingit
Council, the Little Salmon-Carmacks First Nation, the Selkirk First Nation, and the Trondek
H’wechin First Nation. See Council of Yukon First Nations, supra note 5.
52 Premier Gordon Campbell, “Post Referendum Press Conference” (3 July 2002), online: Office of
the Premier
51 Chief Electoral Officer, Report of the Chief Electoral Officer on the Treaty Negotiations
Referendum (Victoria: Elections BC, 2002) at 6, online: Elections BC
14 Campbell v. British Columbia (A.G.) (2000), 189 D.L.R. (4th) 333, [2000] 4 C.N.L.R. 1
(B.C.S.C.).
51 See House of Sga’nisim, Nisibilada v. Canada, 2002 BCCA 362.
56 A good summary of Mr. Mair’s arguments aie contained within his 15 February 1998 editorial for
the Vancouver Courier.
Starting very soon, huge tracts of land in British Columbia will no longer be under the
control of Victoria even though the land is presently owned by the Crown …
These tracts of land will be under the exclusive control of Indian Bands, often under
hereditary leadership, which will determine what if any rights non natives have on
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the election of Campbell’s BC Liberals, the political price of constitutionalized self-
government has increased for First Nations.
First Nations leaders have been no less vocal in forwarding their views. The
Treaty Referendum met with sustained protest, including two legal challenges.”7
Principle 6, concerning self-government, received the most attention. The reaction of
the First Nations Summit, the collective body representing First Nations involved in
the BC process, was voiced by Herb George, one of its three commissioners. He
argued, “[i]f the mandate says that we will only negotiate with you in terms of a
municipal style of government, then we’ve got a problem.” He reiterated that “if the
inherent right [to self-government] is not on the table, then we’re not at the table.” 8
A model of self-government by side agreement lies at the point of impact
between First Nations and Canada’s competing claims to sovereignty. While many
citizens are concerned about the possibility of the “Balkanization” of BC through the
creation of dozens of constitutionally protected self-governing First Nations, a
delegated model of self-government is viewed by many First Nations as a denigration
of their nation-to-nation vision of the treaty process. Whereas treaties respect the
inherent rights of First Nations by providing them with constitutional protection
against state infringement, side agreements appear to relegate their interests once
again to the status of mere policy issues. Thus, where important interests are at stake,
side agreements can be viewed as a return to the pre-1982 era of Canada-First Nations
relations.
In the following sections, I explore how side agreements can mediate these
opposing views of the First Nation-state relationship. Side agreements are a mixture
these lands. If the proposed Nisga’a settlement is any guide, non band members will
certainly not have political or property rights.
What will this amount to?
Well, the best examples I can think of where ownership of land and the rights of
residents thereon depended upon race was in apartheid South Africa. They were called
native homelands and were rightly condemned by decent people, including
the
Canadian Government and our courts, as racist….
Welcome to British Columbia, the land of 1600 native homelands, where all rights
depend not only upon being of the correct race, but the right clan as well (Rafe Mair,
“Vancouver Courier
1998”, online: Rafe Mair Online
for February
15,
5 See Hupacasath First Nation v. British Columbia, 2002 BCSC 802; Bob v. British Columbia,
[20021 8 W.W.R. 621, 2002 BCSC 733. The UBCIC and Chief Judith Sayer of the Hupacasath First
Nation led an “active boycott” strategy, including ballot burning. See Union of BC Indian Chiefs,
“What to Do With Your Referendum Ballot”, online: Union of BC Indian Chiefs
58 CBC News Online, “B.C. Treaty Vote Results Favour Government” (4 July 2002), online: CBC
News Online
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435
of both visions insofar as they are contracts embedded within a treaty relationship.
The contractual aspects subsume Aboriginal interests under the legislative sovereignty
of the state, while the treaty defines a relationship that is more horizontal. I look at the
contractual elements first, and further elaborate on the threat they pose to Aboriginal
sovereignty. Then, in Part I, I discuss how the treaty can shield the side agreement
against this
threat by constitutionally requiring accommodation of Aboriginal
interests in the case of government or legislative breach.
II. Side Agreements as Contractual Relationship
Soon after the passage of the UK Crown Proceedings Act of 1947, statutory
reform in every Canadian jurisdiction had abolished the requirement of receiving
permission to sue the government in contract or in tort. These statutory reforms
eliminated the “petition of right”, which required the government’s consent to be sued
through the granting of a “royal fiat”.” The capacity of subjects to sue the government
on substantially the same basis as they could sue another subject is now no longer
contingent upon the Crown’s permission.’ Crown liability in contract, however, is
subject to the saving doctrine of executive necessity, which voids government
contracts where a contract would “fetter its future executive action, which must
necessarily be determined by the needs of the community when the question arises.”‘
That doctrine has, however, largely become a dead letter, such that government
contracts are routinely enforced without real consideration of it. 2 Thus,
the
presumptive result of government breaking a side agreement with First Nations would
be their liability for damages in an ordinary court. Those damages would normally be
measured on an expectations standard, just as would a contract between two ordinary
subjects. While some commentators have argued that government should only be held
to a reliance standard of damages,” this is not the present state of the law.
Yet situations do arise when government considers that its contractual obligations
too greatly constrain its policy-making functions. While the law of contract would
hold government to the payment of damages, there is another avenue of escape
” See Peter W. Hogg & Patrick J. Monahan, Liability of the Crown, 3d ed. (Scarborough, Ont.:
Carswell, 2000) at 4-11 (for a thorough discussion of the history of Crown proceedings).
60 Before the statutory reforms, the Crown was held to the same liability as citizens. In Journal
Publishing v. The King, [1930] Ex. C.R. 197, [1930] 4 D.L.R. 644 at 649, the Exchequer Court of
Canada held that “in matters of contract the legal rights and liabilities of the Crown are substantially
the same as those arising between subject and subject.”
E.R. 542.
” This statement of the doctrine is taken from The Amphitrite, [1921] 3 K.B. 500 at 503, [1921] All
6 Hogg & Monahan, supra note 59 at 229.
63 See John Mitchell, The Contracts of Public Authorities: A Comparative Study (London: LSE,
1954); Gillian Hadfield, “Of Sovereignty and Contract: Damages for Breach of Contract by
Government” (1999) 8 S. Cal. Interdisciplinary L.J. 467.
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available. As Hogg and Monahan observe, “[lt]he solution to this case is legislation.”‘
Parliament and the provincial legislatures have
traditionally been regarded as
competent to cancel a contract and deny the aggrieved party compensation. If it is a
judicial decision that has set the cost of the contractual obligations too high, then that
decision can be modified. Neither of the civil liberties documents are of any real aid to
a plaintiff. The Charter does not protect property or contractual rights, and what
limited protections the Bill of Rights offers can be denied by Parliament in an
ordinary statute if that denial is sufficiently explicit. Thus, the legislative branch can
extract an executive that is in over its head. As the executive necessity doctrine has
withered as a means of securing the supremacy of the public will, legislation is the
last bulwark. Hogg and Monahan characterize this unfettered legislative discretion as
“the ultimate safeguard of public policy.”‘
The competence of the legislative branch to override the liability of the Crown
flows from the basic doctrine of parliamentary supremacy. That doctrine contains the
basic assertions that the executive cannot bind the legislative branch, and that
legislatures are competent to pass or repeal any law that lies within its constitutionally
granted jurisdiction.’ As one court famously put it, “The prohibition, ‘Thou shalt not
steal’ has no legal force upon the sovereign body.”7 The power to cancel a contract is,
however, somewhat constrained by the rules of interpretation used by courts.
Recently, the Supreme Court reiterated this position, holding that “clear and explicit
statutory language would be required to extinguish existing rights previously
conferred on [a] party.”‘ But if the language is sufficiently explicit, it is open to
Parliament to modify and even cancel contractual rights. The most significant
deterrents against legislative cancellations are imposed not by the courts, but by
would-be contractors and the public. It is commonsensical that were government to
routinely repudiate its contractual obligations, it would soon be unable to find anyone
to contract with. Thus, legislative cancellation or modification might preserve the
governmental budget, but
the government’s reputation.
Furthermore,
the repudiation of contractual rights by legislation can in many
circumstances appear to the public so unjust to the aggrieved party that the abstract
justification of public policy does not suffice. Thus, basic principles of good business
and political appearances constrain the government from regularly shirking its
contractual bargains.
it seriously damages
Despite these restraints, however, legislatures occasionally enact such legislation.
This is especially true of the provinces. Provincial governments have enacted
6 Hogg & Monahan, supra note 59 at 229.
65 Ibid.
66 See Reference Re Canada Assistance Plan (B. C.), [ 1991] 2 S.C.R. 525, 83 D.L.R. (4th) 297 [CAP
Reference cited to S.C.R.].
67 See Florence Mining Co. v. Cobalt Lake Mining Co. (1909), 18 O.L.R. 275 at 279 (C.A.).
6T Wells v. Newfoundland, [1999] 3 S.C.R. 199 at para. 41, 177 D.L.R. (4th) 73.
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T DICKSON – SELF-GOVERNMENT BY SIDE AGREEMENT?
437
rights,’
legislation cancelling contractual
rewriting contracts,” and modifying
collective agreements with public sector unions.7′ On the other hand, instances in
which Parliament has enacted such legislation are few. Regulations enacted pursuant
to the War Measures Act expropriated property from Japanese Canadians during the
Second World War.72 As well, in 1991, Parliament passed legislation that capped the
growth of its transfer payments to the provinces of Alberta, British Columbia, and
Ontario under the Canada Assistance Plan.73
More recently, the House of Commons passed Bill C-22 in June of 1994, which
would have cancelled a series of contracts and denied the aggrieved parties
compensation and even a cause of action.4 The contracts, which had been signed by
the federal Conservative government in the course of an election campaign, together
privatized Terminals 1 and 2 of Toronto’s Pearson International Airport. The bill,
however, caused a political firestorm at the time and it was eventually defeated in the
Senate.75 Had the bill been enacted, it would have been the last of perhaps only three
instances in the past century in which Parliament cancelled or significantly modified
specific contracts.76
While the provinces have been more willing to take the political risks associated
with legislative repudiation, it might reasonably be questioned whether contract
cancellation poses a serious threat to side agreements formed by First Nations and
69 As in Ottawa Valley Power Co. v. Hydro-Electric Power Commission (1936), [1937] O.R. 265
(Ont. CA); and Reference Re Upper Churchill Water Rights Reversion Act 1980 (Newfoundland),
[1984] 1 S.C.R. 297, 8 D.L.R. (4th) 1.
70 As in Ladore v. Bennett, [1939] A.C. 468, [1939] 3 All E.R. 98 (PC.); and Bacon v. Saskatchewan
Crop Insurance Corp., [1999] 11 W.W.R. 51,180 Sask. R. 20 (Sask. C.A.) [Bacon].
7′ For recent examples, see Education Services Collective Agreement Act, S.B.C. 2002, c. 1; Public
Education Flexibility and Choice Act, 2001, S.B.C. 2002, c. 2; and Bill 29, Health and Social
Services Delivery Improvement Act, 2d Sess., 37th Leg., B.C., 2001, all introduced by the current BC
government.
72 See e.g. P.C. 1942-1665, C. Gaz. 1942,1.3628 (11 March 1942).
” The legislation was challenged by the provinces and upheld by a unanimous Supreme Court in
CAP Reference, supra note 66.
74 Bill C-22, An Act respecting certain agreements concerning the redevelopment and operation of
Terminals I and 2 at Lester B. Pearson International Airport, 1st Sess., 35th Parl., 1994 (as passed by
the House of Commons 16 June 1994).
” See Patrick J. Monahan, “Is the Pearson Airport Legislation Unconstitutional?: The Rule of Law
as a Limit on Contract Repudiation by Government” (1995) 33 Osgoode Hall L.J. 411 at 414-15 (for
a presentation of the bill’s history).
76 Of course, many other pieces of legislation have had the effect of expropriating property or
annulling contractual rights. The leading Canadian case in this context is Manitoba Fisheries v. The
Queen ((1977), [1978] 1 EC. 485, 88 D.L.R. (3d) 462 (C.A.)), which dealt with the federal
Freshwater Fish Marketing Act (R.S.C. 1985, c. F-13). The plaintiffs argued that the Act had the
effect of expropriating their company’s goodwill and that they were entitled to fair compensation. The
Supreme Court of Canada agreed.
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government. This skepticism makes sense given the enormous political fallout that
would likely follow such a move. But if we examine side agreements in terms of their
role in the project of reconciliation of First Nations with the Canadian state, then the
mere fact that government can repudiate them is significant. If side agreements deliver
important First Nations’ interests to the supremacy of majoritarian authority, then
insofar as those interests are concerned, First Nations will be in the same subordinate
relationship that the constitutional amendments of 1982 were intended to fix. This is
the deeper threat posed by side agreements, and it is very likely the trigger behind
many First Nations people’s strong animosity toward the BC Liberals’ referendum
and its Principle 6.
This deep threat posed by side agreements to Aboriginal sovereignty would be
mitigated, however, if some ground can be found that restrains the exercise of
legislative supremacy such that the bargain struck could not be unilaterally cancelled.
If the obligations were bilateral, then side agreements would not vitiate the mutual
respect upon which reconciliation depends. This would also have the beneficial result
of making available to the parties another tool to use in negotiations. In the following
sections, I explore two arguments for constraining the legislative sovereignty of the state.
A. The Rule of Law
One approach to counter the validity of legislative cancellations is to challenge
the doctrine of legislative supremacy upon which they depend. This approach argues
that the Constitution Act, 1982 subjected legislative supremacy to the rule of law
through the entrenchment of section 52″7 and the inclusion of the principle of the rule
of law in the preamble to the Charter.” Therefore, legislative supremacy arguably no
longer includes the capacity to legislatively repudiate contractual rights.
The submissions of various legal experts called by the Senate Committee looking
into Bill C-22 provide most of the positions surrounding this issue. The traditional
view of the rule of law is well represented by Joel Bakan and David Schneiderman.”9
Based on section 52’s reference to “provisions” of the constitution, they argue that
only constitutional provisions, not principles, can be a basis for holding legislation of
no force or effect to the extent of the inconsistency. Since the rule of law is not set out
“Supra note 7. Subsection 52(1) states:
The Constitution of Canada is the supreme law of Canada, and any law that is
to the extent of the
inconsistent with the provisions of the Constitution
inconsistency, of no force or effect.
is,
78Supra note 25. The Preamble reads:
Whereas Canada is founded upon principles that recognize the supremacy of God
and the rule of law.
9 Joel Bakan & David Schneiderman, “Submission to the Standing Senate Committee on Legal and
Constitutional Affairs Concerning Bill C-22″ [unpublished, on file with author].
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T DICKSON – SELF-GOVERNMENT BY SIDE AGREEMENT?
439
in a specific provision, but is merely a principle drawn from section 52 and the
preamble, it cannot be used by itself to strike down legislation.’ Bakan and
Schneiderman concede that the rule of law has been used to require state officials to
comply with legislation,8′ to aid interpretation of constitutional provisions, 2 and to
inform constitutional remedies,83 but it has never been used on its own to restrain
legislative sovereignty.” Furthermore, they argue that to do so would be contradictory.
The rule of law requires that legal decisions be based on comprehensible norms, and
the use of the rule of law as a basis for vitiating legislation would engender decisions
that would be inherently vague and arbitrary.5
A number of other experts called by the committee took the contrary view. The
Canadian Bar Association (“CBA”) submitted that the bill infringed the rule of law,6
as did Professor Ken Norman. 7 Professor Patrick Monahan also testified that Bill C-
22 was invalid, but only on the grounds that it infringed the Bill of Rights.8 He has
since written an article in which he argues that Bill C-22 would have been invalid due
to inconsistency with the rule of law. 9
The argument forwarded by these experts is based on the shift in supremacy from
the legislatures to the constitution that was heralded by the entrenchment of section
52. In his later article, Monahan points to the Supreme Court’s subsequent expansion
on the principle of the rule of law as evidence that “all constitutional powers,
Ibid. at paras. 2 and 3.
8 See Roncarelli v. Duplessis, [1959] S.C.R. 121 at 142, 16 D.L.R. (2d) 689 [Roncarelli cited to
S.C.R.]; Amax Potash v. Government of Saskatchewan, [1977] 2 S.C.R. 576, 71 D.L.R. (3d) 1; and
British Columbia Power Corp. v. British Columbia Electric Co., [1962] S.C.R. 642, 34 D.L.R. (2d)
196. Cases cited by Bakan & Schneiderman, ibid.
82 B.C.G.E.U. v. British Columbia (A.G.), [1988] 2 S.C.R. 214, 53 D.L.R. (4th) 1. Case cited by
Bakan & Schneiderman, ibid.
83 Reference Re Manitoba Language Rights (Man.), [1985] 1 S.C.R. 721, 19 D.L.R. (4th) 1
[Manitoba Language Reference cited to S.C.R.]. Case cited by Bakan & Schneiderman, ibid.
4 Bakan & Schneiderman, ibid. at para. 5.
5 Ibid. at paras. 7-8. They cite Dale Gibson’s testimony before the Senate Committee as part of their
argument: Senate of Canada, Standing Senate Committee on Legal and Constitutional Affairs,
“Eighth Report of the Committee (Report on Bill C-22)” in Proceedings of the Standing Senate
Committee on Legal and Constitutional Affairs, No. 11 (5 July 1994) at 68.
86 See CBA, Constitutional and Human Rights Section, “Submission on Bill C-22” (November
1994) [unpublished, on file with author] at 3 [“CBA Submissions”]. The CBA Submissions, however,
do not explicitly indicate whether they regard an “infringement” of the rule of law to be a valid
ground for striking down legislation. I assume that they do.
87 Extracts from his submissions were published as a Globe and Mail commentary piece: Ken
Norman, “The Pearson Act Offends the Rule of Law” The Globe and Mail (8 December 1994) A27.
8 See Monahan, supra note 75 at 415. Other experts also made submissions on the Bill of Rights.
As the Bill is not constitutionally entrenched and can be overridden by Parliament, I do not consider
these arguments.
89 Ibid.
440
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including the powers of Parliament itself, are subject to the requirements of the rule of
law.”‘ The clearest support Monahan finds is the Manitoba Language Reference, in
which the Court referred to the rule of law as temporarily delaying the invalidation of
all of Manitoba’s legislation for failing to meet the requirements of section 23 of the
Manitoba Act, 1870.’ After noting that while it “is not set out in a specific provision, the
principle of the rule of law is clearly a principle of our Constitution,” 2 the Court
appeared to hold that mere principles could be used to invalidate legislation. It quoted
this passage from the Patriation Reference:
However, on occasions, this Court has had to consider issues for which the
B.NA. Act offered no answer. In each case, this Court has denied the assertion of
any power which would offend against the basic principles of the Constitution.”
Monahan asserts that “any power” must include legislative powers as well as those
exercised by the Crown.’
From the basis that the rule of law can restrain legislative sovereignty of its own
force, both Monahan and the CBA then argued that the rule of law contains at least
three subordinate principles that Bill C-22 infringed. First, the rule of law depends on
access to the courts. Second, the courts have long recognized that legislation
authorizing expropriation without compensation is “fundamentally unjust”,” and so
the courts developed the principle of statutory construction that interprets such
legislation narrowly. Last, both experts submitted that the rule of law is infringed by
undue reliance on ministerial discretion. 6
The thesis that the rule of law constrains the exercise of legislative as well as
executive power is tempting insofar as it resonates with the increasing emphasis on
“underlying principles of the Constitution” that has marked post-1982 constitutional
jurisprudence. In many ways, the CBA and Monahan anticipated later developments
in the case law. The most compelling statements on these principles arose in Supreme
Court decisions written in the late 1990s, especially the Secession Reference,7 where
the Court discussed four principles underpinning the constitution, of which the rule of
law is one. At one point, the Court seems to equate these principles with constitutional
provisions in terms of their capacity to restrain governmental power. The Court holds,
“Underlying constitutional principles may in certain circumstances give rise to
‘0 Ibid. at 42 1.
” S.C. 1870, c. 3, reprinted in R.S.C. 1985, App. I, No. 8.
92 Manitoba Language Reference, supra note 83 at 751. Cited in Monahan, supra note 75 at 422.
” Reference Re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753 at 841, 125 D.L.R. (3d)
1, Martland & Ritchie JJ. [Patriation Reference cited to S.C.R.]. Cited in Monahan, ibid.
“Monahan, ibid.
CBA Submissions, supra note 86 at 10.
See CBA Submissions, ibid. at 10-11; Monahan, supra note 75 at 429-31.
9’ Reference Re Secession of Quebec, [1998] 2 S.C.R. 217, 161 D.L.R. (4th) 385 [Secession
Reference cited to S.C.R.].
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legal obligations
… which constitute substantive
limitations upon
substantive
government action.””0 If “government action” includes the exercise of legislative
sovereignty, then the Court’s statement would seem to support the CBA and
in Babcock v. Canada, the Court recently re-
Monahan’s thesis. Furthermore,
emphasized that “the unwritten constitutional principles are capable of limiting
government actions,”‘ although it also held that they “must be balanced against the
principle of Parliamentary sovereignty.”‘”0
interpreted
interpretation.’
Subsequent decisions of lower courts, however, have not
the
comments in the Secession Reference this way. In fact, as Sujit Choudhry has
observed, “Canadian courts seem unwilling to engage in the imaginative approach to
to
constitutional
legislation based on unwritten constitutional norms have been almost uniformly
unsuccessful. Whether relying on the principle of the rule of law,’ 2 minority rights, 3
democracy, ” or the separation of powers, 5 such challenges have not succeeded in
invalidating legislation.”6 In fact, one court writing in May 2002 observed that,
“[allthough the rule of law was the basis for restricting arbitrary and unlawful actions
The case law demonstrates
that challenges
” Ibid. at 249. See also Patriation Reference, supra note 93 at 845.
9 Babcock v. Canada (A.G.), [2002] 3 S.C.R. 3 at 29, 214 D.L.R. (4th) 193.
’00 Ibid.
O Sujit Choudhry, “Unwritten Constitutionalism in Canada: Where Do Things Stand?” (2001) 35
Can. Bus. L.J. 113 at 120.
02 See Singh v. Canada (A.G.), [1999] 4 EC. 583, 170 ET.R. 215 (F.C.T.D.), aff’d (2000) 183
D.L.R. (4th) 458, 20 Admin. L.R. (3d) 168 (EC.C.A.), leave to appeal to S.C.C. refused, [2000] 1
S.C.R. xxii [Singh cited to D.L.R.]; JTI-MacDonald Corp. v. B.C. (A.G.) (2000), 184 D.L.R. (4th)
335, [2000] 6 W.W.R. 227 (B.C.S.C.); Bacon, supra note 70; Hogan v. Newfoundland (A.G.) (1999),
173 Nfld. & P.E.I.R. 148, 59 C.R.R. (2d) 318 (Nfld. S.C.(T.D.)), aff’d (2000), 183 D.L.R. (4th) 225,
72 C.R.R. (2d) 1 (Nfld. S.C.(C.A.)) [Hogan]; Public Service Alliance of Canada v. Canada (2000),
192 ET.R. 23, [2000] EC.J. No. 754 (F.C.T.D.) (QL) (defendant succeeded on an application to strike
a claim for failure to disclose a cause of action with regard to the plaintiff’s claims that legislation
offended the rule of law, but was unsuccessful in other respects).
’03 See Hogan, ibid.; Moncton (City) v. Charlebois (2001), 242 N.B.R. (2d) 259 at 303, 25 M.PL.R.
(3d) 171 (N.B.C.A.) (plaintiff succeeded in striking down the city’s bylaw, but the court refused to use
the principle of minority protection as its basis:
As I understand the effect of the statements made by the Supreme Court concerning the
use of these principles, I think that the argument that this unwritten and underlying
principle can also be used independently of any constitutional text, as a basis of an
application for judicial review to strike down government action is not very convincing.
I believe that the “powerful normative force” referred to by the Supreme Court
concerns the interpretation of constitutional texts and not the creation of rights outside
of the constitutional texts).
0,See Brown v. Alberta (1999), 177 D.L.R. (4th) 349, [1999] 12 WW.R. 330 (Alta. C.A.).
‘0o See Singh, supra note 102.
106 See Choudhry, supra note 101 (for a good examination of the case law involving unwritten
constitutional norms as of 2001. This article refers to many of the aforementioned cases).
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by public officials in Roncarelli … there have been no cases where the doctrine was
successfully extended to strike down legislation.”‘ 7
Lalonde'” might be thought to contradict this observation. In that case the
principle of minority rights was used to review
the Ontario Health Services
Restructuring Commission’s decision to shut down certain programs of the only
French-language hospital in Ontario. However, the Ontario Court of Appeal did not
use that constitutional principle in the manner discussed here. While the Court
affirmed the Divisional Court’s quashing of the Commission’s decision based on the
principle of minority rights alone, the Court specifically left the question of whether
unwritten constitutional principles can be used to strike down legislation to another
day.
‘
10
The Ontario Court of Appeal’s reluctance to strike down legislation on the basis
of an unwritten constitutional principle alone seems similar to that shown by most
lower courts. It is just too difficult to apply unwritten principles to specific facts and
thereby reach a specific outcome. A principle of the rule of law that floats above
positive articulations of its content can so readily be asserted to mean anything that
ultimately it means nothing. Courts have been alive to this problem. As the Federal
Court of Appeal observed in Singh, “[a]dvocates tend to read into the principle of the
rule of law anything which supports their particular view of what the law should be.””
Furthermore, the more the rule of law is detached from specific enunciations of its
content
the more it becomes self-
contradictory. While recent cases demonstrate that, at least among counsel if not
among the judiciary, there is debate as to what the rule of law really means, there is
little disagreement that it must at least mean that laws not be vague. The Secession
Reference is itself clear on this point: “At its most basic level, the rule of law
vouchsafes to the citizens and residents of the country a stable, predictable and
ordered society in which to conduct their affairs.’ As Bakan and Schneiderman
stated in their submissions to the Senate Committee on the Bill C-22 issue, “[t]he
principle of rule of law, as a vague, general and ‘unstated principle that lurk[s] in the
in statutes and constitutional provisions,
’07 Matthew v. Canada, [2003] 1 C.T.C. 2045 at 2201, (2002) 99 C.R.R. (2d) 189 (T.C.C.). The
court was referring to Roncarelli, supra note 81.
208 D.L.R. (4th) 577 (Ont. C.A.) [cited to O.R.].
‘o Lalonde v. Ontario (Commission de restructuration des services de santg) (2001), 56 O.R. 505,
‘0’ Ibid. at para. 126, where Weiler and Sharpe JJ.A. held for the Court that “it is not necessary for
us to answer the more general question-whether the fundamental constitutional principle of respect
for and protection of minorities gives rise to a specific constitutional right capable of impugning the
validity of an act of the legislature or sufficient to require the province to act in some specific manner.”
“o Singh, supra note 102 at 478.
. Secession Reference, supra note 97 at 257.
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443
text of the Constitution’ is thus disqualified, by its own terms, from being a rule of
Arguments against the validity of legislative cancellations of side agreements that
depend solely upon unwritten principles of the constitution are therefore unlikely to
succeed in the lower courts. Rather, these courts will probably continue to confine the
principles to the narrow purpose of interpreting written provisions. And since the
constitution contains no protections for property or contractual rights, the likelihood
that the rule of law will be used to invalidate legislated repudiations of side
agreements is very slim indeed.
For the case of side agreements, this means that the principle of the rule of law
will not likely protect First Nations against the government unilaterally cancelling or
modifying the agreement. Unwritten principles are probably too vague to be applied
to the complex realities of Crown-First Nation negotiations. Thus, in the absence of
some other restraint on the capacity of government to take unilateral action, First
Nations will have to bargain for such protection. A restraint may, however, be found
in the fiduciary duty doctrine, which is considered in the next section.
B. The Fiduciary Duty
While side agreements may be binding on the parties, government can escape
from its contractual obligations by exercising its legislative supremacy. This avenue is
not open to the First Nations party. Thus the government party has considerable
discretion over the interests of the contracting First Nation.
The exercise of discretion is often regulated by fiduciary doctrine. The fiduciary
relationship has been extended to the state-First Nation relationship, based upon the
sui generis nature of Aboriginal title and the powers and responsibilities historically
assumed by the Crown.”3 The existence of a fiduciary duty obligates the fiduciary to
act in the best interests of the principal, but the intensity of the duty varies according
to the discretion held by the fiduciary.”‘ Various courts have found that the
government’s relationship with Aboriginal peoples requires a “high standard of
honourable dealing””‘ and “no appearance of ‘sharp dealing ….. While the fiduciary
..2 Bakan & Schneiderman, supra note 79 at 5 ×.. There has even been recent case
law on whether the rule of law can be used by itself to strike down legislation on the ground of
vagueness: Johnson v. B.C. (Securities Commission) (1999), 67 B.C.L.R. (3d) 145 at 159, 64 C.R.R.
(2d) 275 (B.C.S.C.) (Allan I. found that the legislation could not be struck down. The Court of
Appeal varied on other grounds). See Johnson v. B.C. (Securities Commission) (2001), 206 D.L.R.
(4th) 711, [2001] 10 W.W.R. 635 (B.C.C.A.).
,, See Sparrow, supra note 8.
‘ See Canadian Aero Service Limited v. O’Malley, [1974] S.C.R. 592,40 D.L.R. (3d) 371.
.. Sparrow, supra note 8 at 1109.
“‘ R. v. Taylor (1981), 34 O.R. (2d) 360 at 367,62 C.C.C. (2d) 227 (Ont. C.A.).
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relationship between the Crown and Aboriginal peoples was originally conceived by
the Supreme Court in R. v. Guerin”7 as a creature of the common law, the Sparrow
case recognized it as “a general guiding principle” for section 35. Thus, the fiduciary
relationship between government and First Nations now not only implicates the
executive branch, it also constrains the exercise of legislative sovereignty such that
infringements of certain Aboriginal interests must be justified.
At first glance, then, the general parameters of fiduciary law seem to have the
potential to restrain the unilateral repudiation of side agreements by government. Yet
the fiduciary duty suffers from the same weakness as the rule of law argument;
without a constitutional grounding, the contract is subject to the sovereignty of
Parliament. Such vulnerability to legislative supremacy potentially undermines a
lawsuit against the executive for breach of fiduciary duty.
There are two problems regarding an action against the Crown for breach of
fiduciary duty. First, a fiduciary relationship does not always imply a fiduciary duty.
Rather, fiduciary duties depend on a specific discretion entrusted to the fiduciary.”‘
With side agreements, what is the specific discretion that grounds the Crown’s duty?
The obvious possibility is the capacity for the Crown to introduce a bill into
Parliament that would cancel or modify the agreement. It might be said that this
discretion, arising after the surrender of the First Nation’s rights to the side agreement,
is relevantly similar to the post-surrender duty that was owed by the Crown to the
Musquem Band in Guerin. The fiduciary relationship would require that the Crown
exercise that discretion in the best interests of the First Nation, which obviously
would not be served by the introduction of the bill.
But it is not at all clear that a side agreement arising out of good faith negotiations
is a situation analogous to that of Guerin, because there is no right sufficient to
ground the duty. Guerin involved an express undertaking by government under the
Indian Act that precluded First Nations from alienating their reserve land to anyone
but the Crown. The Court found that the First Nation’s interest in reserve land was
legally identical to an interest in Aboriginal title. “9 It is this element that is missing
with regard to side agreements. Assuming that the negotiations are not coercive,’
then all that the parties have done in forming the side agreement is to deal with those
matters it concerns in a non-constitutional manner. That is, the parties have agreed
[1984] 2 S.C.R. 335, 13 D.L.R. (4th) 321 [Guerin cited to S.C.R.].
“‘ Ibid. at 384 (Dickson J. (as he then was) stated: “where by statute, agreement, or perhaps by
unilateral undertaking, one party has an obligation to act for the benefit of another, and that obligation
carries with it a discretionary power, the party thus empowered becomes a fiduciary”).
“‘ See ibid. at 379 (Dickson J. stated: “It does not matter, in my opinion, that the present case is
concerned with the interest of an Indian Band in a reserve rather than with unrecognized aboriginal
title in traditional tribal lands. The Indian interest in the land is the same in both cases” ×.).
20 The effect of coercion in the negotiations will be discussed below. See infra, Part IV.
‘
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that for the purposes of the side agreement the interests are merely contractual. Since
the rule of law does not constrain legislative supremacy, contracts with government
are inherently defined by the possibility of legislative cancellation. When a minister
introduces such a bill, she is not exercising the discretion of a fiduciary, because it is
simply not contrary to the relationship agreed to by the parties.
Second, even if the courts did find that the situations were parallel, the Crown
would quite likely be shielded yet again by the doctrine of legislative sovereignty. In
the Canada Assistance Plan Reference,’2’ the provinces argued that the doctrine of
legitimate expectations constrained the government from introducing a bill that would
have the effect of undermining those expectations. The Court rejected this argument,
stating that “[a] restraint on the executive in the introduction of legislation is a fetter
on the sovereignty of Parliament itself”22 Thus, the government’s exercise of
discretion intersects with the exercise of legislative sovereignty, and so to succeed the
beneficiary of the fiduciary duty must be capable of constraining that sovereignty. A
fiduciary duty based only on a contractual relationship, however, cannot in the present
state of the law constrain legislative sovereignty.’23 While Sparrow extends the
doctrine of fiduciary duties so that duties are placed on the legislative branch as well,
it is clear that it does so in the context of existing section 35 rights. In Sparrow the
specific right at issue related to fishing for food. It was the presence of this right that
allowed for the extension of the fiduciary duty to Parliament. It is section 35, not the
common law of fiduciary duties, that “demand[s] the justification of any government
regulation that infringes upon or denies aboriginal rights.”‘2 ‘
The side agreement as contract, then, is vulnerable to legislative cancellation.
Even if the government is not shielded against suit for breach of fiduciary duty when
introducing a cancellation bill, it is open to Parliament to protect the government in
the legislation. If the common law of fiduciary duties does not constrain legislative
sovereignty, Parliament can deny a cause of action in the courts for breach of that
duty, just as it can for breach of contract. Thus the doctrine of parliamentary
supremacy again provides a way out of contractual obligations voluntarily undertaken
by the Crown.
This argument, however, is premised upon the absence of a constitutionally
protected right upon which the fiduciary duty can be founded. Since the side
agreement is not a treaty, it is clear that any such right will not be found within the
agreement. There is another possibility, which has been forwarded by Peter Hogg and
121 CAP Reference, supra note 66.
2 Ibid. at 560. See Peter W. Hogg, Constitutional Law of Canada, vol. 1, 4th ed. (Scarborough,
Ont.: Carswell, 1997) at s. 12.3(a) (for a good discussion of the implications of this case).
’23 In fact, if it could, the “discretion” upon which the fiduciary duty is based in this hypothetical
argument would not exist.
“4 Sparrow, supra note 8 at 1109.
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Mary Ellen Turpel;’ using the Yukon self-government agreements as examples, they
argue that such side agreements simply give “form and structure” to the inherent right
of self-government.’26 Underpinning the self-government agreement and any later uses
of governance powers is an Aboriginal right, which continues to exist and enjoy
constitutional protection in the absence of any consensual extinguishment. Any
unilateral government modification or cancellation of the agreement would therefore
be in breach of the First Nation’s section 35 right and so should be struck down by the
courts.
This view has immediate appeal, in that it avoids the vertical relationship that side
agreements threaten to establish. Unfortunately, however, it is contrary to the general
thrust of the jurisprudence. This disconnect is understandable, given that Hogg and
Turpel were writing in 1994 before the occurrence of two significant events: the
federal government’s recognition of the inherent right to self-government in the 1995
Federal Policy Guide'” and the 1997 Delgamuukw decision. Furthermore, at the time
of their writing the failed Charlottetown Accord was still fairly recent. They were
therefore writing in a period in which the hopes of First Nations and their
sympathizers were tied to the affirmation of inherent rights by the courts (if not
through constitutional processes), rather than their definition by negotiators. But the
approach
to reconciliation has now shifted. The 1995 Federal Policy Guide
demonstrated that governments can be open to the recognition of inherent rights
without direct compulsion from the courts. Perhaps in response, the Supreme Court
showed through its Delgamuukw decision that it regards the definition of the
constitutional rights of First Nations as largely lying in the hands of negotiators.
When the Court observed that “it is through negotiated settlements … that we will
achieve [reconciliation],’ 2 it was signalling that it views the consensual intentions of
the parties, as evidenced by written documents, as constituting the primary basis of
their relationship.
Therefore, a more realistic view of side agreements is that, in the absence of
explicit language, any existing Aboriginal right on the same matter is simply left
untouched by the side agreement and remains an outstanding issue. The right has not
been extinguished, but neither has it been given structure and form; it simply remains
unaddressed by the parties. This view is more in keeping with the present trend
,’ Peter W. Hogg & Mary Ellen Turpel, “Implementing Aboriginal Self-Government:
Constitutional and Jurisdictional Issues” in Canada, Royal Commission on Aboriginal Peoples,
Aboriginal Self-Government: Legal and Constitutional Issues (Ottawa: Supply and Services Canada,
1995) 375.
26 Ibid. at 412-13.
27 Indian Affairs and Northern Development, Federal Policy Guide, Aboriginal Self-Government:
The Government of Canada’s Approach to the Implementation of the Inherent Right and the
Negotiation of Aboriginal Self-Government (Ottawa: Public Works and Government Services Canada,
1994) [Federal Policy Guide].
‘ Delgamuukw, supra note 14 at 1123.
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T DICKSON – SELF-GOVERNMENT BY SIDE AGREEMENT?
toward negotiated settlements. First, by sticking to the plain meaning of the text, it is
more respectful of the intentions of the parties, and gives due regard to certainty as the
goal of all the parties. Second, this view supports the general bargain model of
negotiations by avoiding giving First Nations something for nothing.
The view that side agreements are not propped up by existing Aboriginal rights
also better preserves the potential for a variety of possible arrangements between the
parties, and is therefore more able to address the divergent situations of different First
Nations because it does not collapse Aboriginal and treaty rights into one another. The
exact nature of the legal distinction between Aboriginal and treaty rights has always
been unclear, and incorporation of the distinction into section 35 did nothing to clarify
the matter. Nonetheless, the current direction of negotiations
in various treaty
processes shows that the distinction can yield some real advantages. In the BC process
the principals have agreed through a tripartite working group that an incremental
approach to treaty making
is more likely to be successful than the previous
comprehensive and unitary model. In their final report, the working group described
the incremental approach as “a process for building treaties by negotiating over time a
series of arrangements or agreements linked to treaties that can be implemented
before a final treaty. “‘ The working group found that such an approach can yield
process efficiencies, produce tangible results more quickly, and help improve the
relationships between the parties. Preserving the distinction between Aboriginal and
treaty rights would better support this approach by allowing the parties to test certain
arrangements before cementing them in a treaty. The incremental approach would be
made much more difficult if each interim measure were regarded as giving “structure
and form” to any related existing Aboriginal rights.
Maintaining the presumption of distinction between Aboriginal and treaty rights
also allows First Nations possibilities for avoiding the kind of certainty provisions that
have been decried by groups such as the UBCIC.’ Such provisions generally
transform inherent Aboriginal rights into text-based treaty rights. Although they are
labelled “certainty” provisions, they entail a very substantial risk for First Nations.
Campbell represents the sole existing legal challenge to a treaty signed in the section
35 era. Although the Nisga’a Treaty survived that test, another case is in the works.’3′
Thus, the legal effect of certainty provisions remains a largely unknown factor. The
fear is that these provisions will extinguish inherent Aboriginal rights, and yet be
unenforceable in the courts. This uncertainty was very probably the main motivation
,29 British Columbia Treaty Commission, “Improving the Treaty Process”: Report of the Tripartite
Working Group (25 February 2002) at 3, online: BC Treaty Commission
15 March 2002 (see BC Treaty Commission Chief Commissioner Miles Richardson’s letter that
precedes the report).
,3 See supra note 32 and accompanying text.
,3, See supra note 55 and accompanying text.
448
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behind sections 19 to 21 of chapter 2 of the Nisga’a Treaty, through which the parties
agree that unconstitutional provisions are severable and will be renegotiated; that they
will not challenge the agreement in court; and that if the agreement is somehow struck
down it will remain binding on the parties.
At present there are two arrangements through which First Nations have mitigated
the perils of certainty mentioned above. One approach was taken in the Nisga’a
Treaty itself, and will apparently be used by the Innu of Quebec. Under this approach,
the treaty “modifies” the Aboriginal rights (in the language of the Nisga’a Treaty),’32
or simply states that the rights and tide set out in the treaty “constitute” the section 35
rights of that First Nation (this is the language of the Innu Common Approach). ’33
Under both of these approaches, Aboriginal rights continue, but only within the terms
of the treaty. If the treaty rights fail, the Aboriginal rights remain.
The other approach is that taken by the Yukon self-government agreements.
Under this arrangement, existing Aboriginal rights to self-government are not
surrendered. The treaty itself contains certainty language, but leaves room for self-
government rights. The treaty surrenders all existing rights not affirmed in the treaty
to land outside the settlement land; but within the settlement area, Aboriginal rights
continue as long as they are not “inconsistent or in conflict with any provision of a
Settlement Agreement.”‘ Furthermore, section 2.2.4 states that, subject to section
2.5.1.2 of the UFA and other more minor provisions, “Settlement Agreements shall
not affect the ability of aboriginal people of the Yukon to exercise, or benefit from,
any existing or future constitutional rights for aboriginal people that may be
applicable to them.” Provisions to similar effect are included within the chapter of the
UFA dealing with self-government, and within the self-government agreements
themselves. ,’
132 See supra note 30 and accompanying text.
.33 See supra note 31 and accompanying text.
34 See Umbrella FinalAgreement, supra note 5, s. 2.5.1.2:
Yukon First Nation and all persons eligible to be Yukon Indian People it represents, as
of the Effective Date of that Yukon First Nation’s Final Agreement, cede, release and
surrender to Her Majesty the Queen in Right of Canada all their aboriginal claims,
rights, tiles and interests in and to Category A and Category B Settlement Land and
waters therein, to the extent that those claims, rights, tiles and interests are inconsistent
or in conflict with any provision of a Settlement Agreement.
In the self-government agreements, section 3.3 duplicates the rider quoted above. Within the self-
government chapter of the UFA, the wording, however, is slightly different. See Umbrella Final
Agreement, supra note 5, s. 24.12.2 (nothing in the chapter shall preclude the First Nation from
acquiring constitutional protection for self-government “as provided
in future constitutional
amendments”). I think this wording can be attributed to the fact that the drafters were writing prior to
the failure of the Charlottetown Accord. See also Hogg & Turpel, supra note 125.
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449
Given these developments in the jurisprudence and in current treaty negotiations,
it is unlikely and undesirable that a court would find that unextinguished Aboriginal
rights are somehow implicated in a side agreement such that they can ground a
fiduciary duty. The trend is in the other direction. Under the bargain model of
negotiations certainty and choice are paramount values. Adopting the “structure and
form” thesis at this point would upset the already slow pace of the negotiations and
hamper our best efforts at reconciliation.
Yet, without the “structure and form” thesis, side agreements are vulnerable to
legislative cancellation. Neither the fiduciary duty doctrine nor the constitutional
principle of the rule of law can protect First Nations who sign side agreements against
shifts in government policy. Thus, without more protection, side agreements are not
an appropriate tool for dealing with important First Nation interests, and parties
engaged
in treaty negotiations will not have another possible course toward
reconciliation available to them.
Side agreements, however, are not merely contracts. As stated in the beginning of
this paper, side agreements are contracts that are contemplated by a treaty. They can
be viewed in two parts: the actual agreement, which contains the contractual
relationship, and the treaty provisions that contemplate the negotiation of the contract.
These treaty provisions provide the side agreement with some grounding in the
constitutional relationship established by the treaty. Might this grounding provide the
motivation and the means to constrain unilateral government repudiation and so
preserve the mutuality between the parties? The next section addresses this question.
III. Side Agreements and the Treaty Relationship
The previous part of this article examined the side agreement as a simple contract.
In other words, it looked at that agreement in isolation from the treaty. But side
agreements are integrated into a treaty relationship, and there are provisions within
the treaty itself that create some space for the side agreement. For the sake of
convenience, I will call these “framework provisions” because they delineate the basic
shape of the side agreement and so serve a purpose similar to that of framework
agreements with regard to treaties. Framework provisions have two forms. Some
provisions simply spell out the parameters of the side agreement that is to be
concluded between the parties. With regard to the Harvest Agreement, for example,
section 22, chapter 8, of the Nisga’a Final Agreement states the following:
The Harvest Agreement will:
a. Include Nisga’a fish allocations equivalent to:
i) 13% of each year’s adjusted total allowable catch for Nass sockeye
salmon, and
ii) 15% of each year’s adjusted total allowable catch for Nass pink
salmon;
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d.
include a dispute resolution process and a requirement for fair
compensation if the Harvest Agreement is breached by terminating or
reducing the Nisga’a fish allocations pursuant to subparagraph (a).36
These provisions merely define some of the content of the eventual agreement. Since
treaty provisions also state that the side agreement is not intended to be a land claims
agreement, these definition provisions in the treaty do not of themselves accord any
constitutional protection.
Other treaty provisions, however, do not deal with the content of the eventual
agreement but rather concern its relationship to the treaty. Two types of provision are
common here, both of which have already been mentioned. First, the treaty generally
states that the side agreement shall not be a land claims agreement. Second, is a
provision that places duties or rights to negotiate on the parties. As discussed above,
these provisions come in a variety of forms, from requiring the conclusion of an
agreement to granting one party the option of entering negotiations. These “duty to
negotiate” clauses are then informed by the content provisions. If a party were to
refuse to negotiate on the basis of the terms laid out in the content provisions, this
would very likely amount to a breach of the duty to negotiate in good faith.
These two types of provisions do not relate to the nature of the contractual
relationship between the parties created by the side agreement. Rather, they concern
how that agreement will fit into the broader relationship between the parties. That
being the case, these provisions are part of the treaty relationship itself and so are
protected from unjustified unilateral government cancellation. Where the framework
provisions spell out specific duties, such as the duty to negotiate in good faith, those
duties are entrenched within the treaty relationship, creating constitutionally protected
rights in the other party.
The treaty, therefore, can regulate the relationship between the parties on a
constitutional basis between the ratification of the treaty and the conclusion of the side
agreement.’ But what about after the conclusion of the agreement? Do treaty
provisions ever accord
legislative
cancellation?
the side agreement any protection against
The short answer appears to be yes. For example, the final agreements formed
under the Yukon UFA model all have provisions that relate to the formulation,
passage, and amendment of the legislation required to implement the self-government
agreements. Section 24.9.1 states that the parties will negotiate guidelines for the
Nisga ‘a Final Agreement, supra note 5.
“3 It is a term of many treaties that contemplate side agreements, however, that the treaty will not be
entered into until the side agreement is concluded. Thus this special relationship does not always
arise. Nonetheless, if the content terms are formulated prior to ratification, the duty to negotiate in
good faith would still apply. See infra, Part IV.
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drafting of the implementing legislation. Sections 24.9.2 and 24.9.3 require the Yukon
and Canada
legislature and Parliament,
respectively. The crucial provisions, however, are contained in the first two sections of
24.10. They are the following:
to recommend that legislation to the
24.10.1 Government shall consult with affected Yukon First Nations before
recommending to Parliament or the Yukon Legislative Assembly, as
the case may be, Legislation to amend or repeal Legislation enacted
to give effect to [self-government agreements].
24.10.2 The manner of consultation in 24.10.1 shall be set out in each self-
government agreement.’38
Legislation passed by both the Yukon and Canada is necessary to implement the
Yukon self-government agreements. The framework provisions in the treaty require
not only that the governments consult with the First Nation during the initial drafting
of this legislation, but also that government consult with the affected First Nation if
the government wishes to repeal that legislation or to pass legislation that would
otherwise interfere with it. These provisions therefore address the problem at issue:
legislative modifications or cancellations of side agreements. They mandate that any
legislation concerning the side agreement may be passed only after government has
consulted the First Nation. Furthermore, these provisions are not contractual. Rather,
they are embedded within the treaty relationship and are therefore constitutionally
protected. The effect is that these framework provisions shield the side agreement
from government repudiation without consultation.
If we regard these provisions as attempting to restore some measure of mutuality
between government and the First Nation, then two aspects of these provisions are
interesting. First, these restorative provisions of the Yukon treaties explicitly implicate
the legislative branches of Canada and the Yukon. Thus, although the fact that the
government parties are merely to recommend the legislation alludes to a separation
between the executive and legislative branches, once that legislation is passed,
government is treated as a union of the two. Thus, the constitutional protection
attached to the side agreements is directed at the source of the non-mutuality implicit
in the contractual relationship: the disconnect between the executive and legislative
branches.
More important, however, is the form of the protected right to consultation.
Consultation has been the subject of much jurisprudence in the last five years. Its
appearance as the protected right in the Yukon self-government context raises two
points about
the potential of side agreements. First, it demonstrates that side
agreements have the potential to reconfigure Aboriginal rights, so that the right is not
directly defined by an Aboriginal interest, but rather is defined by good conduct on
the part of government. Second, this requires a re-imagination of the Sparrow test for
3′ Umbrella Final Agreement, supra note 5.
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informing the content of justification requirements. The next two sections discuss
these issues.
A. Justification as Right
Consultation was brought into the law surrounding government-First Nation
relations as part of the Sparrow test for the justification of infringements of
Aboriginal rights. As discussed above,’39 under the Sparrow the Crown must meet a
two-pronged test. First, it must prove that it interfered with the protected right
pursuant to a valid objective. Second, the Crown must satisfy the court that the
manner of its interference is consistent with its fiduciary relationship to Aboriginal
peoples. The Court has listed three factors relevant to this latter analysis: whether the
interference was as small as possible, whether compensation was offered, and whether
the First Nation was consulted.'”
In
the
treaty
including within
itself requirements of consultation over
amendments to the legislation implementing self-government, the Yukon treaties
entrench as a right what has before been merely a means of justifying infringements
of rights. That is, the requirements of justification-narrow tailoring, compensation,
and consultation-have so far generally been conceptualized as being grounded in a
substantive section 35 right. They are the correlatives of an Aboriginal or treaty right.
The framework provisions of the Yukon treaties that require consultation, however,
detach that justification requirement from any substantive right. The Crown is
therefore required to justify in the absence of any Aboriginal right grounded in pre-
contact or pre-sovereignty society. The Yukon treaties thus define a new species of
right-what might be called “justificatory” rights.
While justificatory rights collapse the usual right versus justification dichotomy,
there is no reason why they are not legally sound. Treaty rights, after all, are not
simply defined by land continuously occupied prior to the Canadian sovereignty or by
cultural practices existent before and since contact with Europeans. Rather, the peril
and promise of treaties is that they deal explicitly with the present reality of a
relationship between First Nations and the state. Many rights that routinely appear in
modem treaties are nonsensical in the absence of this relationship. Examples include
rights of public access to settlement lands for certpin purposes,’
roads and rights of
way, ’42 rights concerning capital transfers and taxation,’43 and relationships between
’39 See cases listed, supra note 24 and accompanying text.
… See Sparrow, supra note 8 at 1119.
141 See e.g. Nisga’a Final Agreement, supra note 5, c. 6; Umbrella Final Agreement, supra note 5, c. 6.
14See e.g. Nisga’a FinalAgreement, ibid., c. 7; Umbrella FinalAgreement, ibid., c. 6.
e.g. Nisga’a FinalAgreement, ibid., c. 14,16; Umbrella FinalAgreement, ibid., c. 19-21.
11See
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local and regional governments.'” These treaty rights help define the relationship
between the First Nation and the state. Consultation serves a similar purpose.
Furthermore, recent
jurisprudence demonstrates
that courts have become
increasingly open to the accommodation of Aboriginal interests in the absence of
rights proved in court or defined in treaties. In recognition of the expense of proving
rights through litigation, courts have held that the Crown’s duty of consultation is
triggered even if Aboriginal rights or title have not been proved. In Taku River Tlingit
First Nation v. Tulsequah Chief Mine Project,”‘ BC argued that
the constitutional or fiduciary obligation to consult with First Nations, as
distinct from any administrative law duty of procedural fairness, only arises
after there has been a determination that the First Nation has existing aboriginal
or treaty rights under s. 35 of the Constitution Act, 1982, and that those rights
may be infringed by Crown sanctioned activities.4 6
The majority of the BC Court of Appeal dismissed this view, holding that to do
otherwise would have “the effect of robbing s. 35(1) of much of its constitutional
significance”‘
and “effectively end any prospect of meaningful negotiation or
settlement of aboriginal land claims.”‘4 8 In Haida Nation v. British Columbia (Minister
of Forests),’9 Lambert J.A., writing for the Court, affirmed the approach taken in Taku
River,’0 finding that it would be contrary to the fiduciary relationship to interpret
subsection 35(1) “as if it required that before an aboriginal right could be recognized
and affirmed, it first had to be made the subject matter of legal proceedings.””‘ The
Court consequently found that the Crown had a duty to consult with the Haida Nation
before any prima facie infringement of its title and rights was made.’
While the Court in Haida I grounded the duty to consult on the existence of a
“good primafacie case” for Haida title,’ 3 in the supplementary reasons in Haida l the
Court found that another source of the duty of consultation arises out of the
“opportunity to put up a defence of justification to any claim against it for violation of
’44See e.g. Nisga’a Final Agreement, ibid., c. 18.
14 (2001), 211 D.L.R. (4th) 89, [2002] 4 W.W.R. 19 (B.C.C.A.) [cited to D.L.R.].
46 Ibid. at 137 (Southin J.A. (dissenting) quoting from para. 71 of the Attorney General’s facturn).
141 Ibid. at 165.
48 Ibid.
141 [2002] 2 C.N.L.R. 121, [2002] 6 W.W.R. 243 (B.C.C.A.) [Haida I cited to C.N.L.R.]. There was
a later set of reasons flowing from this case that clarified the original reasons. See Haida Nation v.
British Columbia (Minsiter of Forests) (2002), 216 D.L.R. (4th) 1, [2002] 10 W.W.R. 587 (B.C.C.A.),
leave to appeal to S.C.C. granted, [2002] S.C.C. A No. 417 (QL) [Haida H cited to D.L.R.].
‘” Haida I, ibid. at 132.
‘ ‘ Ibid. at 134.
52 The Court also found that Weyerhaeuser owed a constitutional duty to consult. The basis for
Weyerhaeuser’s duty is the main subject of Haida II. See Haida II, supra note 149.
’13 See Haida I, supra note 149 at 138.
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aboriginal title or aboriginal rights.”.. Thus, these cases demonstrate an increasingly
common conception of consultation as a right asserted by a First Nation against the
Crown. The consultation requirement in the Yukon treaties simply goes one step
further by formally defining it as a treaty right.
There is no reason, however, why consultation should be the only justificatory
right. Indeed, any of the elements of the Sparrow justification test could-be entrenched
in the treaty, as long as it was clear from the wording that the right was to exist outside
of the content of the side agreement. Along with consultation, the Court in Sparrow
listed narrow tailoring and compensation as factors within the second stage of the
justification test. These factors could be used to shield the side agreement instead of,
or along with, consultation. Moreover, factors from the first stage could also serve as
justificatory rights. That is, a treaty might require that any legislative repudiation or
modification of the side agreement have a valid objective, be reasonable, and/or not
impose undue hardship. Such requirements would limit the scope of the threat of
legislative repudiation of the side agreement by shielding the side agreement from
some of the more egregious forms of breach. Thus, justificatory rights serve to restore
some of the mutuality between the parties by subjecting any legislative repudiation to
the threat of judicial review.
B. The Variable Content of Justificatory Rights
The entrenchment of justificatory rights in the treaty provisions dealing with the
side agreement does not, however, end the analysis because the content of those rights
must be determined. There are two means by which this might be done.
One possibility is to define the content consensually, by either spelling out the
content within the treaty provisions or by explicitly deferring to the side agreement to
provide the definition. As seen earlier, the Yukon UFA treaties take this latter
approach. Section 24.10.2 states that “[t]he manner of consultation … shall be set out
in each self-government agreement.” This section therefore allows the side agreement
itself to inform the content of the protected justificatory right. However, the Yukon
self-government agreements do not actually seize this possibility; each agreement
simply states that “Government shall Consult with the [First Nation] during the
drafting of any amendment to Self-Government Legislation which affects the [First
Nation]”.. The side agreements, therefore, do not actually provide any greater
definition of the content of the consultation right. Yet, even if the side agreement did
attempt to define the rights more clearly, it is most unlikely that it would provide
enough clarity to avoid judicial interpretation. Thus, whether or not the parties attempt
” Haida 11, supra note 149 at 37-38.
155 See e.g. Selkirk First Nation Self-Government Agreement, 21 July 1997, s. 5.2, online: Indian and
Northern Affairs Canada
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455
to spell out the content of the justificatory rights, ultimately courts will have to look
outside the text of the framework provisions to discover their real content.
It is clear from the Supreme Court’s treatment of the elements of the Sparrow
justification test that they are variable in content. In Delgamuukw, the Court described
a “sliding scale”‘ approach to the Crown’s duty of consultation:
The nature and scope of the duty of consultation will vary with
the
circumstances. In occasional cases, when the breach is less serious or relatively
minor, it will be no more than a duty to discuss important decisions that will be
taken with respect to lands held pursuant to aboriginal title. Of course, even in
these rare cases when the minimum acceptable standard is consultation, this
consultation must be in good faith, and with the intention of substantially
addressing the concerns of the aboriginal peoples whose lands are at issue. In
most cases, it will be significantly deeper than mere consultation. Some cases
may even require the full consent of an aboriginal nation, particularly when
provinces enact hunting and fishing regulations in relation to aboriginal
lands.”‘
The Court therefore calibrated the scope of the duty of consultation to the severity of
the breach. In discussing the content of compensation, the Court added another
ground: “[tihe amount of compensation payable will vary with the nature of the
particular aboriginal title affected.’15
From Delgamuukw, then, it appears that the content of justificatory rights falls
along a spectrum. While that case only discussed consultation and compensation,
there is no reason why the other justificatory rights should not be treated in the same
way. Delgamuukw also suggests that two factors will determine where a particular
case falls along the spectrum: the nature of the interest affected and the severity of the
breach. Lawrence and Macklein note that the R. v. Marshall decision added a third
factor: “whether or not the Minister is required to act in response to unforeseen or
urgent circumstances.”‘5 9 While these two commentators lament that “[flower courts
have studiously ignored the significance of the sliding scale of consultation proposed
in Delgamuukww” ‘ subsequent decisions seem to indicate that the lower courts are
now beginning to adopt that framework of analysis. ‘
“‘ Sonia Lawrence & Patrick Macklem, “From Consultation to Reconciliation: Aboriginal Rights
and the Crown’s Duty to Consult” (2000) 79 Can. Bar Rev. 252 at 263.
Delgamuukw, supra note 14 at 1113.
‘5’ Ibid. at 1114.
’59 [1999] 3 S.C.R. 533 at 564, 179 D.L.R. (4th) 193.
’60 Lawrence & Macklem, supra note 156 at 263.
… See Nunavik Inuit v. Canada (Minister of Canadian Heritage) (1998), 164 D.L.R. (4th) 463 at
493, [1998] 4 C.N.L.R. 68 (F.C.T.D.) (“[t]he nature and scope of the duty will vary with the
circumstances”); Liidlii Kue First Nation v. Canada (A.G.) (2001), 187 ET.R. 161 at 178, [20001 4
C.N.C.R. 123 (F.C.T.D.) (Reed J. held that “[a]nother factor relevant to the nature and scope of the
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This sliding scale analysis can be applied to justificatory rights, but the analysis
must be alive to the special context that side agreements provide. The first factor-the
nature of the interest affected-requires particular attention. The Sparrow test was
originally designed to apply to Aboriginal rights. Even if the Halfway River case is
followed and the test is applied to treaty rights directly,6
justificatory rights are
different in that they are detached from other section 35 interests. That is, there
appears to be no other interest affected by the breach that could inform the content of
the justificatory right itself.
The answer to what is the nature of the interest affected lies in the interdependence
between treaties and side agreements. Since any justificatory rights that are attached to
side agreements find their source in the relationship between the agreement and the
treaty, any inquiry into the nature of the interest must return to that relationship. What
differentiates side agreements from ordinary contracts is that they support treaty
rights. Thus, in the context of side agreements, justificatory rights do have bases in
other section 35 interests, because they point back to treaty rights. This suggests a
three-stage analysis. First, the treaty right or rights to which the side agreement is
related must be identified. Second, the nature of that interest must be judged along the
lines of the Sparrow test. Third, the court must consider the degree to which the side
agreement supports the identified treaty right or rights. The “interest affected” in the
context of justificatory rights attached to side agreements is the cluster of these three
factors.
How might this analysis play out for the Yukon self-government agreements? The
analysis is a difficult one in the absence of any clear judicial statements of the
relationship between self-government and other Aboriginal rights, yet a few tentative
suggestions can nonetheless be made. First, the right that self-government agreements
would be found to support is likely the right to land granted under chapter 4 of the
treaties. Chapter 13 or 14 of the self-government agreements state that the legislative
powers of the First Nation extend to (1) the treaty benefits that are to be controlled by
the First Nation, (2) social and cultural matters, and (3) the administration of land
rights.’63 The clearest connection to the treaty lies through the third head-the land
grants-since
they constitute the core of the treaty. That the self-government
agreements support Aboriginal land rights is also consistent with comments of the
Court in Delgamuukw. In discussing the content of Aboriginal title, the Court found
that it is held communally: “Aboriginal title cannot be held by individual aboriginal
persons; it is a collective right to land held by all members of an aboriginal nation.
required consultation will be the nature of the prospective infringement”); Mikisew Cree First Nation
v. Canada (Minister of Canadian Heritage) (2001), 214 ET.R. 48 at 77-79, [2002] 1 C.N.L.R. 169
(F.C.T.D.) (where arguments as to variable content were canvassed); Haida II, supra note 149 at 31-
32 (affirmed that analysis from Mikisew).
62 See sources listed, supra note 23 and accompanying text.
1
163 See e.g. Selkirk First Nation Self-Government Agreement, supra note 155, c. 14, ss. 14.1-14.3
(where these heads of jurisdiction are set out).
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Decisions with respect to that land are also made by that community.”‘” It is likely,
then, that a court would find that the treaty rights supported by the Yukon self-
government agreements are those that relate to land.
The second stage of the analysis is to determine the nature of the treaty right that
is supported by the side agreement. The importance of the land rights in the Yukon
treaties is not controversial. They form the backbone of the treaties. Of the twenty-
eight chapters in the Yukon treaties, at least fifteen clearly concern land-based
interests.’5 The treaty rights supported by the self-government agreements are of the
highest importance.
The last stage of the analysis of the interest affected is the relationship between
the side agreement and the treaty rights it supports. Again, the lack of judicial
guidance makes this analysis more difficult, yet the relationship can be said to be
close for two reasons. First, self-government relates to the communal nature of
Aboriginal land rights, as identified by the Court in Delgamuukw. Communal
interests must be managed, and self-government provides the means. Second, most of
the legislative powers delineated in the self-government agreements explicitly relate to
the regulation of the settlement land itself. Self-government supports the enjoyment of
settlement land.
The nature of the interest affected by a breach of the duty to consult with regard
to Yukon self-government is therefore a very significant one. It is intertwined with the
First Nation’s enjoyment of its lands and so lies close to the core of aboriginality. This
interest informs the content of the duty to consult.
Having identified the nature of the interest affected, the other stages of the
Sparrow test should operate in the same way. That is, the court should first examine
the severity of the impact on this interest, and then the court should find whether any
mitigating circumstances-such as an emergency-existed
that might somewhat
justify the intrusion. Outside of any specific factual context with regard to these latter
two factors, it is difficult to assess what this analysis would mean if Parliament were
to unilaterally amend the Yukon self-government implementing legislation. Would it
result in the amending legislation being declared invalid, or would government simply
be required to pay damages?
There are at least two reasons to expect that courts could be persuaded to rule the
legislation invalid. First, while the case law shows that judges respect the principle of
legislative supremacy, the case law also demonstrates judicial disdain for legislative
,’ Delgamuukw, supra note 14 at 1082-83 [emphasis added].
163 See Umbrella Final Agreement, supra note 5, c. 4-18 (Reserves and Land Set Aside; Tenure and
Management of Settlement Land; Access; Expropriation; Surface Rights Board; Settlement Land
Amount; Special Management Areas; Land Use Planning; Development Assessment; Heritage; Water
Management; Definition of Boundaries and Measurement of Areas of Settlement Land; Fish and
Wildlife; Forest Resources; Non-Renewable Resources).
458
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cancellations, as Monahan correctly argued in his article.”
Interpretive principles
requiring that the language of any such legislative cancellation be clear and explicit is
evidence of that disdain. Specific cases yield further evidence. One recent case-
Carrier Lumber v. British Columbia”7 -concerned a logging company’s contract with
the BC government. The government cancelled the contract and attempted to
legislatively shield itself from liability.” The reasons for judgment show the lengths to
which some judges will go to provide grievors with equity. While the government
argued that it was shielded by legislative denials of liability, the judge held that “[t]he
answer to the application of these statutory provisions is found in the fact that the
defendant in this case fundamentally breached the agreement with Carrier outside the
term of any application of the provisions of either Forest Amendment Act.”” 9 If the
courts can find a constitutional toehold, then they will be very tempted to side with the
grievors against legislative cancellations. Furthermore, the nature of side agreements
themselves provide more than a mere toehold. Side agreements implicate the complex
history of relations between First Nations and the Canadian state. In an era where the
courts are increasingly urging a nation-to-nation relationship, side agreements harken
back to the more overt colonialism that marked relations before the introduction of
section 35. As side agreements arise out of the treaty processes, and the constitutional
elements are located in the treaties, they implicitly call up the statements of the
Supreme Court on the importance of treaty negotiations to the purpose of section 35.
In sum, side agreements provide a context in which the iniquity of a legislative
cancellation is brought into sharp relief.
Side agreements can and do contain some constitutional protections for First
Nation interests. These protections mitigate the perils of the contractual model by
constitutionalizing
requirements of accommodation. Given judicial disdain for
legislative cancellations and the importance of the negotiations between the parties, it
is very probable that the courts would assign great weight to these protections,
amounting in some cases to declaring the legislation invalid.
Nonetheless, the negotiation of side agreements poses a risk for First Nations.
While the gradations of justificatory rights allow the parties to choose from a variety
of options, they also give rise to the danger that government will insist that the
See the discussion in Part I1(A), above.
67 (1999), 47 B.L.R. (2d) 50, 30 C.E.L.R. (N.S.) 219 (B.C.S.C.) [Carrier Lumber cited to B.L.R.].
166 Subsection 25(3) of the Forest Amendment Act (No. 1), 1987, S.B.C. 1987, c. 40, stated:
No compensation or damages are payable by the government and no proceedings
shall be commenced or maintained to claim compensation or damages from the
government or to obtain a declaration that compensation or damages are payable by the
government.
A second act, the Forest Amendment Act (No. 2), 1987, S.B.C. 1987, c. 54, had a similar section (s.
19).
69 Carrier Lumber, supra note 167 at 170.
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agreement receive minimal protection. This danger can be mitigated, however,
through a more robust and well-defined duty to negotiate in good faith.
IV. Side Agreements and the Duty to Negotiate in Good Faith
The trend in the jurisprudence and in negotiations is toward the primacy of
written definitions of the First Nation-state relationship. This trend is not an accident,
but rather is provoked by the recognition of certain present realities: negotiation is
cheaper than litigation, negotiation can delineate more sophisticated relationships
between the parties, and it can better address present poverty and other social ills that
might not be recognized as the subject of Aboriginal rights. Furthermore, negotiation
is preferable just on the basis that it gives the parties-especially First Nations-more
scope to choose their own cultural, political, and economic destinies.
Yet the move away from inherent rights to those consensually defined through
negotiations entails a very significant risk for First Nations. The inequalities of
bargaining power between First Nations and the government parties are very large and
very real. It must always be remembered that judicial compulsion underlies the
federal and provincial governments’ willingness to deal with First Nations. Although
treaty processes are increasingly regarded as mainly political in nature, their purpose
is to reconcile legal interests. It is these legal interests that drive the negotiations
forward. As Patrick Macklem has observed, “the relative bargaining power of the
parties is a function of the distribution of property rights accomplished by legal
choice.””0 The treaty processes are a mixture of both political and legal forces, and it
is only through an appropriate balance of the two that true reconciliation is possible. It
has been argued that this balance between the legal and the political has shifted, such
that the ultimate nature of the rights is increasingly within the political realm. But if
the delicate balance that underpins the negotiations is to be maintained, some other
role for legal interests must be found. That role is to maintain watch over the process
by which the agreements are reached.
As argued above, the fiduciary duty doctrine is incapable of preventing a
unilateral government modification of a side agreement that lacks justificatory rights,
because the judicial preference for negotiated settlements would respect the parties’
consensual definition of the agreement as non-constitutional.” But that is so only
after the agreement has been concluded. During the negotiations process First Nations
hold interests that could likely be the subject of constitutional protection through legal
means, that is adjudication, alone. The existence of these interests constitutes the
primary motivation for the negotiations and should inform the manner in which the
negotiations are conducted. Given that the reconciliation of these interests through
,70 Patrick Macklem, Indigenous Difference and the Constitution of Canada (Toronto: University of
Toronto Press, 2001) at 96.
… See supra note 113 and accompanying text.
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negotiation requires Crown participation, legal standards must ensure that the Crown
does not use the negotiations as a means of coercing First Nations into surrendering
their rights.
It is the fiduciary duty that regulates the negotiations process, taking the form, as
was hinted at in Delgamuukw, of a duty on the part of the Crown to negotiate in good
faith once it enters negotiations.’ 2 It is essential that the Crown be held to this duty. As
Justice Williamson stated in Gitanyow,
the longstanding fiduciary relationship between Aboriginal peoples and the
Crown, involving as it does the honour of the Crown, and recognized and
affirmed as it is in s. 35(1) of the Constitution Act, 1982, cannot be displaced
simply because the Crown and First Nations enter into negotiations concerning
Aboriginal title and/or rights.73
This duty is placed not only on the federal government but on the provincial Crown as
well, as demonstrated by both Chemainus and Gitanyow. Once negotiations have
begun, both government parties must conduct themselves according to fiduciary
standards.
The duty to negotiate in good faith is notoriously difficult to define. The line
between responsive negotiations and “sharp dealing” is hazy at best and depends upon
the factual context. But the analysis can benefit from the parallel between the duty of
good faith negotiating and the Crown’s fiduciary duty regarding surrenders of
Aboriginal title or reserve land. In addition to the post-surrender duty that was at issue
in Guerin, the Court also found in Blueberry River’74 that the Crown has a pre-
surrender duty to fully inform the First Nation of all its options with the objective of
allowing the First Nation to make a good deal. Both duties arise because the Crown
assumed discretion in the Indian Act for dealing with surrenders to fulfil the objective
from the Royal Proclamation of 1763 of preventing “great Frauds and Abuses”
committed by settlers against Aboriginal peoples.’75 Thus, the purpose of the
discretion informs the nature of the duty governing that discretion. In the context of
treaty negotiations, the Crown’s fiduciary duty must relate to the purpose of the
negotiations process: the reconciliation of the pre-existence of Aboriginal societies
with the sovereignty of the Crown. That is, although the Crowns, and especially the
provincial Crown, may look to the interests of third parties or the sovereignty of the
state, they must also have due regard to the interests of First Nations arising out of
their existence as societies prior to the establishment of the state. The Crown parties
“2Delgamuukw, supra note 14 at 1123.
Gitanyow, supra note 19 at para. 40.
Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern
6. See Guerin, supra note 117.
Development), [ 1995] 4 S.C.R. 344 at 370, 130 D.L.R. (4th) 193.
,’ George R., Proclamation, 7 October 1763 (3 Geo. II), reprinted in R.S.C. 1985, App. II, No. 1 at
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must actively seek to provide meaningful protection for these interests and must be
open to the wishes of the First Nation regarding the manner of protection.
This general standard-that the Crown must have regard to the interests of the
First Nation-can be seen as arising out of two fundamental propositions regarding
treaties: that treaties are aimed at reconciling rights that are legally entitled to
constitutional protection, and that negotiation is preferred over litigation as the means
of that reconciliation because it allows the parties greater choice in defining their
relationships. Each of these propositions has its corollary, which provide standards for
the Crown’s duty to negotiate in good faith. The first proposition dictates that the
Crown cannot insist on dealing with important First Nation interests through side
agreements that lack treaty shielding provisions. The second prevents the Crown from
refusing to consider, fully and conscientiously, dealing with core First Nation interests
through full treaty provisions. Each of these propositions will be considered in turn.
A. Justificatory Rights as the Minimum Measure of Protection
If the negotiations process was created to reconcile interests that could receive
recognition through litigation, then to be in good faith, the Crown must enter
negotiations with the expectation that core interests of the First Nation will be
afforded some constitutional protection. The minimum level of such protection should
be the justificatory rights discussed above. Insisting that a core interest of the First
Nation receives no constitutional protection at all should be deemed a breach of the
Crown’s duty to negotiate in good faith.
This standard of good faith conduct should not apply, however, to all interests the
First Nation regards as important because that would too greatly constrain the give
and take that the bargain model requires. Rather, the standard should only apply to
those interests for which the First Nation could obtain constitutional protection
through means other than negotiation. Those interests relate, of course, to any existing
Aboriginal rights the First Nation can credibly assert. That is, the First Nation must be
able to point to something akin to a good prima facie case, consistent with Lambert
J.A.’s standard from Haida L Neither should such interests automatically require full
constitutional protection within the treaty. That would too stringently limit the future
relationship between First Nations and the state to past practices, and would hamper
the parties’ capacities to address present realities.
It might be questioned why Aboriginal rights give rise to this standard if they
remain unsurrendered and available for legal recognition by the courts. That is, why
must First Nations have this protection if they can go to court and prove their rights?
When the Court advocated negotiations in Delgamuukw, it also hinted at the answer
to this question: “this litigation has been both long and expensive, not only in
economic but in human terms as well.” It is this obvious fact that requires a high
standard of conduct on the part of the Crown parties. The Aboriginal rights doctrine is
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of little benefit if First Nations cannot obtain recognition of such rights, and
negotiation as a process for obtaining such recognition is of little use if the Crown
parties can use that process to minimize First Nations’ rights.
Jim Alridge, who represented the Nisga’a Tribal Council in its negotiations from
1980 to 2000, has explained that the difficulty in proving Aboriginal rights in court
was the motivation behind constitutionalizing self-government in the Treaty:
If First Nations seek to establish a range of self-government powers
through litigation, such as those set out in the Nisga’a Treaty, they will be faced
with proving-and the Crown with defending-those claims, First Nation by
First Nation, authority by authority, territory by territory and establishing the
proper relationship of laws in each case. I suggest that this approach is quite
properly rejected in favour of negotiation, under which the parties can agree to
the appropriate law-making authority for a modem treaty without being faced
with the burdens attendant upon the litigation process.”6
As Aldridge also observed, the difficulty of this process is increased by the Supreme
Court’s insistence in Pamajewon that Aboriginal rights should not be framed with
“excessive generality”, but rather should be examined “in light of the specific
circumstances of each case and, in particular, in light of the specific history and
culture of the aboriginal group claiming the right”’77 This standard combines with the
Van der Peet requirements of continuity, cultural distinctiveness, and a practice that is
integral to that culture to place a burden on the First Nation claimant that is
prohibitively onerous. It is this gap between the potential for legal recognition of
Aboriginal rights and the First Nation’s real possibilities for actually obtaining such
recognition that gives rise to the minimum standard of justificatory rights protection.
The duty is triggered once the Crown has entered negotiations and caused the First
Nation to commit to negotiations as its means of reconciling its rights.
During the negotiations, First Nations are entitled to expect that the Crown will
start bargaining at least from the baseline position that core interests will receive
protection through justificatory rights. It is a right that a First Nation should be able to
enforce in court by way of a declaration if either of the Crowns persistently demands
an arrangement less favourable to the First Nation. The right is extinguished, however,
as soon as the First Nation signs an agreement, assuming the absence of coercion that
vitiates
the consequence of a model of
reconciliation that assigns substantive questions to the political realm, while providing
legal supervision only for procedural issues. First Nations are free to trade in
protection for some rights for better protection for others or for some other
compensation, but they are also entitled to the presumption that interests that could be
the First Nation’s consent. This
is
76 See Jim Aldridge, “Self-Government: The Nisga’a Nation Approach” in BC Treaty Commission,
ed., Speaking Truth to Power III: Self-Government: Options and Opportunities (14 March 2002) 43,
online: BC Treaty Commission
… R. v. Pamajewon, [1996] 2 S.C.R. 821 at 834, 130 D.L.R. (4th) 204.
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Aboriginal rights will be respected and constitutionally protected at least through
justificatory rights.
B. The Requirement of Flexibility
Willingness to protect core First Nation interests through justificatory rights
should be regarded as a mandatory minimum for the Crown parties to be negotiating
in good faith, but that standard is not the full extent of their duty. If the duty ended
there, one of the chief benefits of the negotiation process might be lost. That benefit is
the expansion of real choice for the parties in defining their relationship.
Attaching to side agreements some constitutional protection for various forms of
accommodation-such as consultation or compensation-mitigates to some degree
the lack of mutuality generally implied by a contractual model of government-First
Nations relations. By including such protections, side agreements might be more
attractive to First Nations as an instrument of reconciliation. A First Nation might
rationally choose not to expend bargaining capital on full entrenchment of certain
rights in preference for other benefits. This strategy might work particularly well in
the context of self-government, where, for example, the BC government has
demonstrated a strong antipathy to an inherent right model and might be willing to
pay dearly for acceptance of a delegated model.
But however much a side agreement is supported by justificatory rights, it is not a
treaty. Side agreements do not embody to the same degree the nation-to-nation
relationship upon which most First Nations peoples-and others like myself-would
like to see the negotiations proceed. The inclusion of justificatory rights still falls short.
The problem is that, without more, side agreements might allow the government parties
to insist on them as the instrument of reconciliation in certain contexts. Obviously, the
recent referendum in BC raises this possibility for self-government.
In order to preserve the benefit of expanded choices that negotiations offer,
Crown parties must be open to arrangements beyond their own preference. They must
be responsive and conscientious in considering proposals from the First Nation.
Persistently demanding, in the face of First Nation objections, that core interests only
receive the minimum standard of protection-justificatory rights-should be regarded
as a breach of the duty.
The need for Crown flexibility during negotiations is reflected in and required by
the statutory instruments supporting the BC treaty process. The process was established
following the recommendation of the BC Claims Task Force, which was composed of
representatives of the Canada and BC governments and the First Nations Summit. Its
basic structure was outlined in the British Columbia Treaty Commission Agreemen 78
78 BC Treaty Commission, British Columbia Treaty Commission Agreement, online: BC Treaty
Commission,
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and implemented through the federal British Columbia Treaty Commission Ace” and the
provincial Treaty Commission Act.”‘ Both acts refer to the agreement, and the agreement
states in section 13.1 that the BC Treaty Commission may refer to the task force report’8
“to provide the context for this Agreement and as an aid to its interpretation.” Clearly,
the report was considered, at least by the government parties, to articulate foundational
principles of the process.
The task force report contains nineteen recommendations, two of which are
particularly relevant here. These recommendations stress the necessity of flexibility in
negotiations on the part of the parties. Recommendation 1 suggests that “[t]he First
Nations, Canada, and British Columbia [should] establish a new relationship based on
mutual trust, respect, and understanding-through political negotiations.” Openness
and flexibility are cited as hallmarks of this relationship. In its discussion of this first
recommendation, the task force states that “[i]t is important that the items for
negotiation not be arbitrarily limited by any of the parties.””‘ Recommendation 2
further emphasizes the need for responsiveness: “Each of the parties [should] be at
liberty to introduce any issue at the negotiation table which it views as significant to
the new relationship.’.. The report indicates that a consequence of this principle is
that “[tihere should be no unilateral restriction by any party on the scope of
negotiations.””‘
These principles from the report should inform the content of the duty to
negotiate in good faith. Government parties should not be allowed to dictate the terms
of the agreements by refusing to discuss First Nation proposals. Canada and BC must
be responsive to concerns raised by the Aboriginal party and must not be tied to one
position in the face of significant opposition to it.
This requirement has clear relevance to the post-referendum treaty process in BC.
When introducing the referendum principles, Gordon Campbell and Geoff Plant, the
Minister responsible for
the
referendum would be binding on the province under the provisions of the Referendum
Act.”‘ Many commentators questioned what this could mean in the climate of give and
take implicit within negotiations. Minister Plant’s post-referendum instructions to
provincial negotiators make the question no clearer. At one point he directs that
“[p]rovincial negotiators have the authority to negotiate and make commitments on
treaty negotiations, emphasized repeatedly
that
R.S.C. 1995, c. 45.
R.S.B.C. 1996, c. 461.
“Report of the BC Claims Task Force, supra note 12, Recommendation 1.
“2 Ibid. at c. 1, para. 34.
“‘ Ibid., Recommendation 2.
“Ibid. at c. 2, para. 1.
R.S.B.C. 1996, c. 400. Section 4 of the Act states:
If more than 50% of the validly cast ballots vote the same way on a question stated,
that result is binding on the government that initiated the referendum.
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T DICKSON – SELF-GOVERNMENT BY SIDE AGREEMENT?
topics that are consistent with the referendum principles and for which current
policies exist,” while at another he urges that “[it is important that provincial
negotiators demonstrate flexibility and creativity in developing agreements that can be
supported by all negotiating parties.”” The legitimacy of the BC treaty process will
depend much upon which of these two statements has greater influence in the next
few years.
Conclusion
The modem treaty processes raise questions of enormous complexity and
importance, and it is increasingly obvious that these roads to reconciliation will be
arduous and long. The mood has shifted since the early years after the entrenchment
of section 35. While the courts have urged the parties
into negotiation and
compromise, the treaty processes have not yet progressed as speedily as was
envisioned. The BC process has fallen from the high optimism of the 1991 task force
report into the acrimony of the referendum. In British Columbia, at least, there is a
growing sense of gridlock that threatens to derail the whole process.
One necessary element of any solution to the stalemate is a greater variety of tools
for the parties to use in redefining their relationship. In Quebec, the Innu of Mamuitun
and the federal and provincial governments have developed a new model for securing
certainty. The principals of the BC process are also searching for more options. At
least in part provoked by the launch of the referendum campaign, the principals last
year conducted a major review of the negotiations. That review culminated in an
agreed willingness to look beyond comprehensive treaties to an incremental approach
to treaty-making.
Side agreements have long been a fixture of the treaty processes. But they have
generally been regarded as merely contractual in nature and so have not often been
used to reconcile core First Nation interests. The Yukon side agreements, however,
reveal these instruments’ greater potential. By shielding the side agreement with
justificatory rights within the treaty, the First Nation can enjoy a measure of
constitutional protection for rights that are not themselves constitutional. And whereas
the Yukon side agreements are shielded through a right to consultation, any of the
elements of the Sparrw justification test might be used, by themselves or in
combination, to ensure that the First Nation’s interests are not arbitrarily overridden
by shifts in government policy. Side agreements do not have to be merely contractual,
but can receive some protection from the treaty. This potential for side agreements to
“6 See letter from Geoff Plant, Attorney General and Minister Responsible for Treaty Negotiations
to Philip Steenkamp, Deputy Minister, Treaty Negotiations Office
(31 July 2002), online:
Government of British Columbia Treaty Negotiations Office
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straddle the line between private and public might provide the crucial compromise for
parties locked in stalemate.
Side agreements may in this way be very well suited to the present state of treaty
negotiations, marked as they are by the need for more compromise and pragmatism.
But it is critical that realism not eclipse consciousness of what the negotiations are all
about. The treaty processes were founded to provide the “just settlement for
aboriginal peoples” that is so long overdue. Since this purpose was heralded in
Sparrow87 the courts have increasingly handed the reconciliation project over to the
political realm, but
this overarching goal remains. Side agreements could be
introduced by the Crown parties into the negotiations in a manner contrary to this
purpose. The courts must not let them do so. While the parties should be allowed to
formulate their new relationship without judicial prescription of its terms, the courts
must be willing to hold the Crown parties to high fiduciary standards during the
negotiations themselves. The federal and provincial governments must meet First
Nations in good faith, motivated by the desire that each First Nation secure a just
place within the Canadian social and constitutional order.
,’ See Sparrow, supra note 8 at 1105, where the Court quoted a classic statement from Noel Lyon,
“An Essay on Constitutional Interpretation” (1988) 26 Osgoode Hall L.J. 95 at 100.
