Common sense on aboriginal law
NationalPost.com – Opinion/Editorial
Friday, Nov. 19, 2010. National Post
By a unanimous decision, the Supreme Court of Canada (SCC) has set a new standard for interpreting First Nations’ land claims arising from so-called “modern treaties” — those signed after 1975. From now on, disputes between governments and First Nations will be handled by the courts much more like land-use disputes arising between governments and non-aboriginal Canadians.
Because the “increased detail and sophistication of modern treaties represents a quantum leap” from the vague language of pre-and post-Confederation treaties, governments are required only to give “full and fair consideration” of First Nations’ “views,” the SCC has decided. Governments that otherwise respect the provisions contained in modern treaties are under no obligation to engage in open-ended “consultations” with native bands that go beyond the administrative procedures set out in the underlying treaty.
The dispute leading to the Supreme Court case of Beckman vs. Little Salmon/Carmacks First Nation goes back to 2004, when the Yukon government held a hearing into the application of a farmer, Larry Paulsen, to establish a farm on land adjacent to the Little Salmon/ Carmacks reserve. Because the farm would be on land that Little Salmon residents traditionally had used for hunting and fishing (though it lay outside the reserve itself ), the territory’s land commission invited participation by band leaders. They submitted a written response opposing Mr. Paulsen’s request, but did not appear at the hearing.
The bureaucrat in charge of the territory’s land-use laws considered the Little Salmon objections. But in light of the 1990s-era treaty the band had established with Yukon and Ottawa, Yukon’s Land Application Review Committee found their concern inadequate to prevent the conversion of a tiny sliver of their traditional hunting grounds to agricultural use as was permitted under the treaty.
The band took the government to court, claiming it had failed adequately to consult them. The trial judge agreed, quashing the government’s granting of a farm to Mr. Paulsen. However, the Yukon Court of Appeal granted the government leave to appeal to the Supreme Court.
During court proceedings, lawyers for Little Salmon insisted that even though their treaty is far more detailed than the country’s ancient treaties — and even though the treaty did not mandate extensive consultations as a pre-condition for land-use decisions of the type requested by Mr. Paulsen– judges must still be obliged to interpret such treaties broadly, in accordance with the best interests of aboriginal people, regardless of the document’s wording.
Much to their credit, the court rejected this argument because “modern treaties are designed to place aboriginal and non-aboriginal relations in the mainstream legal system with its advantages of continuity, transparency and predictability.” At least as it pertains to the post-1975 treaties, the court will be no longer be making law up as it goes along.
For several decades now, courts have expanded the legal rights of native groups that claim special rights and protections under established treaties — sometimes relying on questionable doctrines, such as the enshrinement of dubious “oral histories” on the same evidentiary level as authentic historical documents. This week’s case suggests that this trend may finally have run its course.
If so, it’s a good day for sound jurisprudence.
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