A reconciliation without recollection? Chief Mountain and the sources of sovereignty.

• Date: 01 July 2015
• Author: Nichols, Joshua

INTRODUCTION

On 3 February 2013, the British Columbia Court of Appeal released the Chief Mountain decision. (1) The issue in this case was the constitutionality of the legislative and self-government powers set out in the Nisga'a Final Agreement (NFA). The appellants (who are members of the Nisga'a Nation) argued that the NFA and the attending Settlement Legislation effectively created a "third order of government" via section 35 of the Constitution Act, 1982 (2) that is inconsistent with the distribution of powers set out in sections 91 and 92 of the Constitution Act, 1867. (3) Harris JA followed the trial judge in rejecting the appellants' reasoning and upholding the constitutionality of the NFA, and the Supreme Court of Canada has subsequently denied the application for leave to appeal the judgment. (4) Accordingly, Chief Mountain now sits as the current authority on the constitutionality of the NFA and the validity of modern treaties. Given that fact, the importance of the case is difficult to overstate. Simply put, this case deals with the future of reconciliation, which, after all, is reportedly the very purpose of the modern treaty process. We are told that treaties are designed to "achieve reconciliation" and "lay the foundation" for the new relationship between Aboriginal peoples and the Crown. (5) As Binnie J stated in Beckman v Little Salmon/Carmacks:

The reconciliation of Aboriginal and non-Aboriginal Canadians in a mutually respectful long-term relationship is the grand purpose of s. 35 of the Constitution Act, 1982. The modern treaties ... attempt to further the objective of reconciliation not only by addressing grievances over the land claims but by creating the legal basis to foster a positive long-term relationship between Aboriginal and non-Aboriginal communities. (6) In view of this grand purpose, we should pay very close attention to precisely how Harris JA determines the fit between the NFA and "the wider constitutional fabric of Canada." (7)

My particular line of inquiry begins with Harris JA's finding that the powers given in the NFA were "valid delegations of power." (8) It is this finding that allows him to maintain that it is "unnecessary to decide whether some or all of the self-government powers derive from an inherent Aboriginal right." (9) The reasoning here is puzzling. How can it be "unnecessary" to identify the actual source of these powers? After all, when we are considering the meaning of a legal agreement, the relationship between the parties can change the character of that agreement. This possibility is reflected on a very general level in the difference between a unilateral act of delegation and a treaty. A unilateral act of delegation is premised on an asymmetrical relationship: one party gives another something that they do not have (i.e., authority) and this transfer is a conditional one. (10) By contrast, a treaty is normally understood as a compact made between two or more independent nations. (11) Of course, this is not the case in the Canadian jurisprudence. As Dickson CJC states in Simon, "an Indian treaty is unique; it is an agreement sui generis which is neither created nor terminated according to the rules of international law." (12) But whichever rules do actually govern the creation of these sui generis treaties, it is clear that the relationship is not analogous to a unilateral act of delegation. (13) If it were, this would entail that either the sui generis treaties are surrender documents or Aboriginal peoples were subject to Crown authority without consent. (14) And if the Court wishes to use these types of arguments to explain the rules that govern the sui generis treaties, then the Court will need to provide evidence to support them, as they cannot simply stand as self-evident facts. So how is it that in Chief Mountain we encounter something that is called a "treaty" and has the characteristics of a "valid act of delegation"? Is the ultimate achievement of the process of reconciliation a treaty that can be--like any act of delegation--"withdrawn or amended" by the Crown? (15) If so, this would certainly shift the connotations of Binnie J's (somewhat enigmatic) assertion that "the future is more important than the past." (16)

In order to address these questions, I have divided the paper into the four following sections. Part I provides an outline of the model of modern treaties put forward by the Court of Appeal in Chief Mountain. My aim in this section is to provide the reader with a summary of the Courts interpretation of the legal validity of modern treaty rights and then to relate this interpretation to the vulnerabilities that follow from it (i.e., the test for infringement and the possibility of amendment or withdrawal). (17) Part II examines Williamson J's response to the question of the source of treaty rights in the Campbell decision. (18) This case demonstrates how an inquiry into the source of treaty rights is related to the question of validity and legal status. Part III begins with a comparison of the "valid delegation" model from Chief Mountain and the "diminished sovereignty" model from Campbell, and then shifts to a critical analysis of the Court's assertion that the source of treaty rights is unrelated to their validity. I argue that the source of treaty rights is necessarily related to their validity, and by refusing to examine their source, the nature of their legal status is fundamentally altered. I conclude with a consideration of how these models change the meaning of reconciliation.

PARTI

In Chief Mountain, Harris JA states that the "the validity of treaty rights" is the "critical question" before the Court. (19) His response to this question is that the treaty rights given in the NFA are indeed "valid delegations of power". (20) This finding gives rise to two related questions. First, what is the reasoning that supports this finding? Second, how does this reasoning affect the general legal status of the NFA (and other modern treaties) for the purposes of infringement, amendment, or withdrawal? Harris JA sets out this argument in detail at paragraph 46:

The critical question before this Court is the validity of treaty rights. Treaty rights owe their validity to agreement and it is unnecessary specifically to identify their source provided that the parties have the capacity to enter the agreement. Here, it is sufficient to uphold the validity of the Treaty that Parliament and the Legislature have the authority to delegate the powers found in the Treaty and, to the extent necessary, have done so. (21) The first thing that we should notice about this line of reasoning is its structure. The argument brackets the question of source (and by that I mean that the argument serves to avoid or put to the side a question that is fundamental to what follows from it) and leaves the judge free to put this question aside and continue forward. On the face of it, the minimal requirement is that both parties agree that they have the capacity to enter the agreement. We are told as follows:

[I]t is neither necessary nor desirable to decide in the context of this case whether or to what extent an inherent Aboriginal right to law-making and self-government exists in Canada or, more specifically, whether the right to self-government recognized by the Treaty is derived from an inherent Aboriginal right. (22) This could well be seen as Harris JA exercising his judicial restraint. He is, after all, explicitly not making a determination on the existence of "an inherent Aboriginal right to law-making and self-government". (23) By not making any determinations that cannot be clearly demonstrated on the basis of the facts that were presented to the Court, Harris JA leaves these issues undecided, but this approach only works if the silence on the issue of source has no effect on the Crown-Aboriginal relationship. This reasoning only follows if the decision on the validity of treaty rights is unrelated to (i.e., it does not alter or determine) the question of the source of these rights. If this is not the case, and validity and source are indeed related, then the bracketing of the question of source actually changes the Crown-Aboriginal relationship without explanation.

How does Harris JA decide the question of validity? For this we will need to turn our attention to paragraph 51:

[T]he critical question in assessing the validity of a treaty right is whether the parties to the agreement creating the right have the authority to agree to the terms of the agreement. This is so because by agreeing, the parties become bound to its terms. Consent confers validity. There is, it follows, an important difference between Aboriginal rights (which exist independently of agreement) and treaty rights (which are created by agreement). The source of the treaty rights, whether they are rooted in Aboriginal rights or rights delegated from either federal or provincial governments, is not, therefore, the critical question in assessing the validity of a treaty. What matters is that the rights have been agreed to by parties with the necessary capacity and authority. Here the question is, accordingly, whether Parliament or the Legislature breached any constitutional constraints in agreeing to treaty rights which would result in a constitutionally invalid agreement. (24) Here we begin to get a sense of the rule that Harris JA is using to determine validity. The rule is that "[c]onsent confers validity", and so in order to assess the validity of a treaty, the Court must determine that (a) the rights are agreed to by the parties, and (b) the parties have the "necessary capacity and authority." (25) This reasoning is curious. In the preceding paragraph, Harris JA cites Badger as support for his finding that consent confers validity, but he says nothing about what the parties are consenting to. In the paragraph that he cites from Badger, Cory J does not say...