Urban aboriginal people and the honour of the Crown - a discussion paper.

• Author: Hughes, Jula
• Position: Canada

INTRODUCTION

Aboriginal people in Canada are urbanizing along with other Canadians and, in fact, the global human population. (2) Empirical research suggests that Aboriginal people thrive in the urban environment. Despite this, a strong mythology persists that imagines the Aboriginal person as residing in rural settings, usually on a remote reserve. By contrast, the urban landscape is described as hostile and fundamentally unsuited to Aboriginal living. (3) The mythology persists because there is a lack of awareness about the needs, aspirations, contributions and social structures of urban Aboriginal populations in Canada. In this paper, we explore whether governmental mechanisms developed in the context of the constitutional duty to consult with Aboriginal peoples should be mobilized to improve awareness about urban Aboriginal populations and governmental responsiveness to their needs and aspirations. We discuss the legal framework of the duty to consult, the conceptual and practical challenges in making the duty to consult work for urban Aboriginal people and we point to areas where further research is required. The research is being conducted under the auspices of the Urban Aboriginal Knowledge Network ("UAKN").

The UAKN promotes knowledge and research about urban Aboriginal populations in Canada. It challenges the prevailing mythology and emphasizes the lived reality of the majority of Aboriginal people in Canada, as people who live connected to their Aboriginal heritage and culture in the context of an urban setting. With the goal of contributing to a better quality of life for urban Aboriginal people.

This project brings together research on urban Aboriginal populations, institutions, and political structures with research on the legal doctrine of the duty to consult. It queries whether the duty to consult has application to urban, off- reserve populations and if so, how this duty should be conceptualized. The present paper attempts to lay the groundwork for this research by describing some of the organizations representing urban Aboriginal people and/or providing services to them in Atlantic Canada, setting out the existing case law, state of the jurisprudence and academic commentary, and by putting forth areas where further research will be required.

The research is community-driven. Organizations such as Friendship Centres and Native Councils across Canada recognize membership, provide services to, advocate for, and represent urban, off-reserve Aboriginals. In Atlantic Canada, there are seventeen organizations that are members of the UAKN. These organizations and others bridge many of the gaps left by a legal and social regime that is focused provincially on non-Aboriginal populations or federally on the on-reserve Aboriginal populations. This research is driven and supported by community partners who identify particular research needs and who are intimately involved in the research projects. In the words of one community partner:

We [Aboriginal people] have been studied from every possible angle imaginable. There is already a ton of literature that exists out there on us, however, I realize there is only a small portion of it that is actually authored by us. The Urban Aboriginal Knowledge Network has created legitimate research opportunities for us, to examine where we are, for us to explore issues from our own standpoint, and to stop being someone else's subject, and become the authors of our own data. (4) The lack of government consultation in the design, maintenance and termination of social, educational, employment and housing programs has profound effects on the lives of urban Aboriginal people. For example, former chief of the New Brunswick Aboriginal Peoples Council and current general manager of the New Brunswick Aboriginal Flousing Corporation Skigin-Elnoog, Gary Gould notes:

Prior to BU1-C31 there used to be a federal housing program for status-Indians off reserve. Basically, it was very similar to the program we modelled for the 2006 Aboriginal housing trust; a locked interest rate, down payment assistance [...] After BII1-C31 the federal government, along with the bands, determined that there was no future need for this because everybody was going to get their status and rush back to their communities. I think the evidence shows over the past thirty years that that has not been the trend at all. But the government ended it. They went and consulted with the Assembly of First Nations, they didn't consult with the urban Aboriginal communities at all. (5) The demographic trend also suggests that Aboriginal people do not abandon their identity at the city gates. Urban Aboriginal people are not only here to stay, but are here to grow. (6) It is crucial that the law of the duty to consult and the broader law of Aboriginal and treaty rights be responsive to these demographic realities. At the same time as the demographic trend towards urbanization unfolds among Aboriginal Canadians, the law on the duty to consult is becoming more refined and developed. The existing jurisprudence relates almost exclusively to land and resources and in this context legal standards are being developed which may preclude applications outside of the land and resource parameters.

This paper proceeds in four parts. We begin by providing an overview of the duty to consult jurisprudence. In this part, we highlight that the existing jurisprudence has developed in a factual context of land and resource development and a doctrinal context of justifying additional rights deprivations. When the courts apply the duty to consult to the traditional territories of Aboriginal people, they have taken a predominantly property-based approach that is in tension with the sovereign and self-governance dimensions of Aboriginal rights. Doctrinally, the duty has been thought to be largely prospective. It arises when governments take new initiatives to further diminish the territorial claims of Aboriginal people. Again, this is in tension with the retrospective and remedial need to address historical rights deprivations in consultative processes. These observations apply to both on-reserve and off-reserve rights claimants.

The second part discusses the issue of identity. Not only is it difficult to fit Aboriginal rights outside of the property paradigm into the duty to consult jurisprudence, but it is an additional challenge to operationalize the duty to consult even assuming the first set of obstacles can be overcome. This is because some issues of identity remain contested. Many off-reserve, urban Aboriginals are status Indians. Their identity as Aboriginals is not in issue. However, there are also many urban Aboriginals who are non-status or Metis, including some who live outside of the traditional territories of their ancestors. For those groups, their aboriginality is frequently contested.

The third part addresses the question of who is recognized and authorized to speak for urban Aboriginal people. For both status and non-status Aboriginal people, there is also a question about who holds rights of representation. There is a clear link between the issues in this part and in the preceding part regarding the crucial issue of whether urban Aboriginal communities can effectively recognize individuals as Aboriginal. There has been a concern that the governance structures established under the Indian Act are not well suited to meeting the representational needs and aspirations of off-reserve and non-status populations for a long time. (7)

In the fourth part, we discuss areas of concern. The issue of representation in government consultations is pressing. At present, the gap between governmental consultation policies engaging status and on-reserve populations and the majority of indigenous Canadians who live off-reserve and often do not have status is growing. We identify areas of urban Aboriginal organizations' current activity where we argue governmental consultations should occur. Furthermore, we note some areas where there presently exist gaps in services where urban Aboriginal organizations ought to be consulted on how best to address them. We then conclude by suggesting the mutual benefits of consultation in these areas for Aboriginal and non-Aboriginal Canadians.

1. The Duty to Consult: Source and Scope

   The Crown's duty to consult with Aboriginal peoples was first recognized by the Supreme Court of Canada ("SCC") in 1990 in R v Sparrow, (8) In that case Ronald Sparrow was charged for fishing with a drift net that was longer than permitted under his Band's Indian fishing licence. Sparrow admitted to the facts, but justified his actions on the ground that he was exercising his Aboriginal right to fish under section 35(1) of the Constitution Act, 1982, which states that: "The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed." (9) The Court in Sparrow was asked to give meaning to Aboriginal rights following their entrenchment in the Constitution Act, 1982. The Supreme Court held that Aboriginal rights which were not extinguished prior to the enactment of section 35 continue to exist. However, these rights are not absolute and may be infringed by the Crown in specified circumstances. The Crown must justify rights limitations by demonstrating that its infringement serves a compelling and substantial objective and that the limit is justifiable in light of the special trust relationship and responsibility of the government vis-a-vis Aboriginal people. (10)

   It is in the latter part of this test--related to the justification of infringements of Aboriginal rights--that the duty to consult is doctrinally located. Within the justification analysis, the Court explained that there are additional questions beyond the compelling and substantive objective element of the test which need to be addressed. Such questions include "whether the Aboriginal group in question has...