Respect for treaty rights in Ontario: the law of the land?

• Date: 22 March 2008
• Author: Coyle, Michael

This article examines to the extent to which legislatures and the Crown have taken steps to give effect to the constitutional entrenchment of treaty, rights in Ontario. The writer's analysis suggests that treaty disputes in Ontario reflect a systematic governmental failure to identify, define and recognize treaty rights in the province. This article will suggest that the creation of mechanisms to assist in defining treaty rights and resolving treaty disputes is necessary for the Crown to fulfil its constitutional obligations to ascertain and to give effect to existing treaty rights in the province.

Cet article examine dans quelle mesure les legislatures et la Couronne ont pris des mesures afin de donner effet a l'enchassement constitutionnel des droits issus de traites en Ontario. L'auteur suggere que les differends souleves par les traites en Ontario refletent l'omission systematique du gouvernement d'identifier, de definir et de reconnaitre les droits issus de traites dans la province. A son avis, il faut creer des mecanismes pour aider h definir les droits issus de traites et a resoudre les differends en resultant din que la Couronne respecte ses obligations constitutionnelles d'etablir les droits existants issus de traites et de leur donner effet dans la province.

Table of Contents I. INTRODUCTION II. THE HISTORICAL TREATIES: SYSTEMIC SOURCES OF DISPUTES ABOUT THE PARTIES' RIGHTS III. PAST CROWN TREATY POLICIES IN ONTARIO IV. CURRENT CROWN TREATY POLICIES IN ONTARIO A. Hunting and Fishing Rights Off-Reserve B. Forestry Rights C. Other Provincial Decisions That May Affect Traditional Uses of Treaty Lands V. DEFINING AND IMPLEMENTING TREATY RIGHTS: THE CROWN'S OUTSTANDING OBLIGATIONS VI. CONCLUSION I. INTRODUCTION

We in this country do not seek a constitution that is nothing but a paper monument for rights that are buried under a pile of empty words. We seek constitutional provisions that have practical meaning and benefit for the people they concern. (1)

Prime Minister Pierre Trudeau

It has now been 25 years since the formal entrenchment of treaty rights in Canada's Constitution. (2) Those years have seen numerous judicial decisions about the interpretation of treaties, the relationship between treaty rights and the ordinary laws of the land, and the obligations of the Crown to consult with Aboriginal peoples when it makes decisions that might affect treaty or Aboriginal rights. Much has also been written by academics in an effort to offer guidance to the judicial effort to define the scope of the rights guaranteed by section 35. Thus far, however, relatively little attention has been paid by legal scholars to the extent to which legislatures and Crown governments have taken steps to give effect to the newly entrenched constitutional rights of Aboriginal peoples. Reviewing levels of legislative or executive activity in an area may seem like a merely descriptive task, beneath the attention of the legal scholar or the courts. However, this review suggests that, in the area of treaty rights, the subject is not only worthy of scholarly attention, but it is vital to a full appreciation of the legal and constitutional issues that remain. The importance of those issues is reflected in the intensity of recent confrontations in Ontario and in the recommendations made by the recent Ipperwash Inquiry. (3)

There are a number of reasons for expanding the context of section 35 rights analysis to include a review of implementing initiatives by the legislature and the executive. First, Aboriginal and treaty rights differ from many other constitutional rights (like freedom of expression, for example) in that, prior to 1982, they were largely ignored as political and legal values. Therefore, it becomes critically important to examine the extent to which constitutional amendment has increased the freedom of Aboriginal peoples to exercise their newly entrenched rights. As Prime Minister Pierre Trudeau observed, and an enlightened analyst of Soviet-style constitutions would confirm, what matters about constitutionally expressed values is the extent to which they have a practical impact on the society they purport to govern. If there are negligible institutional moves to enforce newly recognized rights, then judicial decisions in favour of individual rights claimers will be less significant than they might at first appear.

Examining the response of the Crown and legislatures to the entrenchment of treaty rights is not just of pragmatic importance--it also raises important issues about respect for the fundamental principle of constitutionalism. The Supreme Court of Canada has made clear that the Constitution is not merely an inventory of legal tools available to individuals who believe that government action has treated them unfairly--it is an expression of commitment to the fundamental principles by which Canadians have agreed to be governed. (4) So too with section 35 of the Constitution, which the Supreme Court has indicated is a "solemn commitment that must be given meaningful content." (5)

The task of giving meaning to section 35 is not the courts' alone. The Crown is bound by a legal obligation to act honourably in consulting with Aboriginal peoples to seek an accommodation where there is reason to believe that government activities might adversely affect their constitutionally protected rights. (6) The decisions of the Supreme Court in Haida, Mikisew and Taku River established that the Crown has an obligation to consult with Aboriginal peoples where its proposed actions risk violating section 35 rights that have been asserted but not yet proven in court. But the Supreme Court also made clear that the Crown's obligations in relation to section 35 go beyond seeking interim accommodations to claimed rights; the Crown must act honourably in taking steps to identify and define the rights that section 35 guarantees. (7) The implication is clear where treaties have not yet been negotiated: the government must seek to reconcile sovereignty claims through honourable negotiation. (8) The writer suggests that the implication is equally clear where treaties were negotiated in the past: the government must act honourably in taking steps to identify, define and recognize the rights created by these historical treaties. This obligation is particularly significant where governments are aware that the scope of rights created by a treaty is the subject of longstanding dispute between the Crown and the Aboriginal signatory. And that, in turn, makes it important to review the efforts by the Crown to identify and define the rights created by historical treaties.

This article will focus on the Crown's response thus far to the challenge of recognizing treaty rights in Ontario. Ontario offers fertile ground for analysis because of the sheer number of treaties made in the province and because of the longevity of historical disputes over the meaning of those treaties. In recent years, Ontario has been the setting of many particularly intense confrontations over treaty and land rights. Incidents at Ipperwash Provincial Park, the town of Caledonia, the Red Hill Valley in Hamilton and BigTrout Lake are perhaps the most prominent, but more than 100 "Aboriginal critical incidents" have been reported by the Ontario Provincial Police since 1995. (9) The existence of longstanding treaty disputes appears to be a particularly important factor in accounting for such confrontations. (10)

The question posed in this article is whether treaty disputes in Ontario are exceptional cases arising from disagreements over particularly controversial cases of treaty interpretation, or whether they reflect a failure to bring laws and policies systematically into step with the new constitutional framework of treaty rights. If there has been a systematic legal failure to identify, define and recognize treaty rights in the province, then the recently-issued recommendations of the Ipperwash Inquiry, that Ontario and Canada take specific measures to recognize treaty rights across the province, (11) raise more than just political and moral considerations. This article will suggest that the creation of mechanisms to assist in defining treaty rights and resolving treaty disputes is in fact necessary to fulfil the governments' constitutional obligations to ascertain and to give effect to existing treaty rights in the province.

The argument will be developed in three parts. First, a brief review of the history of treaty-making in Ontario will demonstrate that ambiguities as to the parties' common intent were an inevitable part of the treaty making process. Second, a review of the historical record will indicate that the Crown has failed to take steps to fulfil its obligation to honourably resolve such interpretive conflicts. The third part of this article will develop the argument that this failure to act leaves the Crown in violation of its constitutional obligation to act honourably in identifying and defining treaty rights.

Lastly, a note about the scope of the issues this article will address. In considering the possibility that there is a disjunction between the Supreme Court's insistence that the Crown act honourably to identify and define treaty rights and the current absence of mechanisms to do so in Ontario, this article will focus on disputes about the continuing rights provided for by treaties in relation to the traditional lands of Aboriginal nations. It will not address disputes about past transactions in which it is alleged that the Crown illegally dispossessed a First Nation of lands or other assets. There are hundreds of such "land claims" across the country, and the Crown's obligations in relation to such claims have been the subject of considerable recent analysis. (12) The focus of this article will be on efforts to resolve disputes about the rights of Aboriginal treaty parties to maintain their connection with their traditional lands and to...