Thank you, Mr. Chair.
Thank you for allowing me to testify, even though I couldn't appear in person. I am currently in the community of the Uashat mak Mani-Utenam Nation on the North Shore of Quebec. Long live technology!
I'm not going to go back over the facts of the indigenous crisis. You know them well enough. As an expert in indigenous law and policy, I will focus primarily on what I understand about the causes of the crisis and what I see as lessons we can learn from it.
First of all, the crisis is the culmination of several issues related to first nations territories and political governance. There are, of course, issues specific to the Wet'suwet'en Nation and those related to the Coastal GasLink project in particular. The crisis has become so acute because the issues go well beyond hereditary chiefs' opposition to a pipeline project. Moreover, it is not by chance that the crisis has had such resonance in Quebec and that there have been such important gestures of support from first nations in Quebec, particularly from the Mohawks and Micmacs, but also from the Atikamekw, Innu, Algonquins and many others.
The situation in Quebec is very similar to that in British Columbia. These are two regions where there is no, or at least few, historic surrender treaties. So there are large areas of what are referred to as unceded indigenous territories over which first nations have rights, but rights that are not fully recognized by governments or the courts. These are what I call invisible rights: indigenous rights, indigenous title, the inherent right of self-government, the right to be consulted and accommodated, the right to fiduciary protection by the Crown, and so on.
It's not because they are invisible that they don't exist, but because they are invisible, they are often ignored. In the course I teach at the Faculty of Law of the Université de Montréal, "Canadian Law and Indigenous Peoples", I always begin my first class with a drawing of my own, which is a pictorial representation of Canadian indigenous law. Here is my drawing.
You see a rectangle that symbolizes Canadian law and a circle that identifies the normative orders of indigenous peoples. This circle overlaps in part, but not completely, with positive Canadian law: there are rights that are sometimes recognized and others that are not. That's what Mr. Borrows was talking about in terms of indigenous rights, the normative orders of indigenous peoples that existed and have continued to exist in Canada.
The chart explains what is known as legal pluralism, which is present in indigenous law in Canada, and it also explains some of the issues related to the crisis and the complexity of the solutions. Indigenous peoples, because they have not been conquered, because they have not given up their inherent rights, despite the considerable efforts made during generations of colonial policy, still possess, to different degrees, depending on the nation, parts of their legal order that existed before the creation of Canada. This is true for those who have entered into treaties and even more so for those who have not, as is the case in Quebec and British Columbia in particular.
These rights have been recognized in part by the courts, which are trying, as best they can, to reconcile the pre-existing sovereignty of indigenous nations with the current sovereignty of the Crown. However, the concepts created remain vague and imprecise. In short, they often remain invisible to the current political system. This is the fundamental problem. Faced with the difficulty of resolving problems through political means, first nations are forced to turn to the courts or blockade railroads.
You have to realize that the courts are not a panacea. It is often very long, very expensive and very risky. Even when the first nation wins its case in court, it does not necessarily represent a victory. Take the case of the Wet'suwet'en Nation, one of the two nations involved in the famous 1997 Delgamuukw decision.
The decision was heralded as a great victory for indigenous people, as the court recognized the existence and scope of indigenous title to unceded indigenous lands. However, the court refused to decide the case, inviting governments to negotiate or first nations to return to the trial court to prove title again.
You'd certainly think we wouldn't be here today if the negotiation route had worked better. We can't blame the courts. The recognition and definition of these invisible rights was left to the Supreme Court, if not clarified at the political level, as the federal government had promised to do when the Constitution was patriated in 1982 and section 35 was included, which recognizes indigenous rights without defining them.
In fact, there are several people these days who are proposing new constitutional amendments to correct this situation. There have indeed been a few so-called modern treaties that have been concluded since the Supreme Court reminded the government in 1973, in the Calder case, that indigenous rights were not inert fossils.
Yes, there have been some treaties, but not many. The Wet'suwet'en situation is hardly unique. There are a number of similar situations, especially in British Columbia, Quebec and the Maritimes, involving unceded traditional territories in which these invisible rights exist.
Admittedly, as things stand, treaty making is extremely difficult, if not impossible, for many nations. The current framework for negotiations is inadequate and ineffective. First, the current policy on the settlement of comprehensive claims has an enormous disadvantage: the federal government is both judge and jury. The process is also very long and fraught with pitfalls. To give you an idea of the situation, some nations have been in negotiations for over 40 years.
Meanwhile, the territories continue to be developed. The duty to negotiate and accommodate does indeed exist. The duty was established by the Supreme Court in 2004 in a case involving the Haida Nation. However, this duty is yet another vague and unclear concept that causes a great deal of frustration, among both indigenous people and proponents, by the way. They complain about being caught between a rock and a hard place.
Admittedly, the governments don't have much motivation to negotiate for the recognition of rights. We can't rely too much on pressure from the courts, contrary to what we might think. While the courts recognize indigenous rights, and despite the constitutional protection granted in 1982, they've also ensured that these rights aren't absolute and that governments could violate them. The Supreme Court established criteria to justify the infringement of rights, even formally recognized aboriginal title. This gives governments a way to keep denying these invisible rights.
While recognizing the existence of aboriginal title, the Supreme Court also gave indigenous communities the burden of proving their previous occupation of their traditional territories. This proof is extraordinarily difficult and costly to produce. Only one indigenous nation has been able to provide this type of proof. That was in 2014, and the case concluded before the Supreme Court with the confirmation of the Tsilhqot'in Nation's aboriginal title to approximately 5% of its traditional territory.
What action can be taken by first nations that have invisible rights, but that can't have these rights recognized by the courts or participate in treaty negotiations? For now, they can only require that they be consulted. Again, they're reminded that they don't have a veto. If they aren't satisfied with the consultation, they can go to court. However, if they aren't satisfied with the courts, what's left? This is our impasse.
In my view, the indigenous crisis is the direct result of the governments' failure to recognize invisible rights, which are nonetheless real, and to address the historic grievances of first nations that have never surrendered or given up their land rights.
These land claims can't be resolved until the negotiation mechanisms have been fundamentally changed. After many years of frustrating negotiation experiences, I believe that the solution to the current impasse lies in a mechanism that remains separate from governments. The issue is systemic. In other words, the current system can't resolve these issues, which are so complex that they even go beyond the capacity of governments. These types of issues can't be resolved by public servants, who must comply with policies, directives and administrative procedures. I believe that a new institution, separate from governments, should be responsible for clarifying and implementing the rights of first nations. This independent body should be composed of individuals who have the necessary expertise and legitimacy to accomplish this sensitive and very important task.
One of the first things to change is probably the vocabulary used. We don't refer to claims, a confusing term that suggests that indigenous groups want new rights. As I said, these rights are existing rights for which they're seeking formal recognition. We should instead be talking about a rights recognition policy. This solution would also be a concrete step towards implementing the United Nations Declaration on the Rights of Indigenous Peoples, which Canada officially supported.
In conclusion, I'll say a few words about the uncertainty that the crisis has caused among project proponents, particularly with regard to the authorities that have the jurisdiction to negotiate development agreements. Of course, companies and the government are turning to elected band councils. We must remember that these councils are currently trying to do everything they can with the means at their disposal to improve the lives of their communities. That said, this issue is another debate.
As I said earlier, a number of nations still have traditional authorities. In a few cases, the courts have also recognized the legitimacy of these traditional authorities, such as in the case of the Wet'suwet'en in 1997. The federal government's responsibility is useful, even fundamental, in this area. The federal government must ensure that the process respects the rights of the indigenous group concerned.
Rather than encouraging the division of indigenous communities, we should be giving the communities the necessary resources to create institutions designed according to their own legal perspective. This will enable them to make legitimate decisions that are more likely to be respected by everyone.
To do this, the political route must also be taken. It's not necessary to enter into an agreement, because the right to self-government is an inherent right. However, it's more useful to enter into self-government agreements. Otherwise, situations arise such as the one involving the Mohawks of Kahnawake. They've implemented a form of de facto sovereignty over their territory. That's one reason why the blockade couldn't be cleared through a simple court injunction.
Again, the current system makes it very difficult to enter into agreements and recognize self-government.
In short, creativity and courage are now needed in order to take concrete steps towards putting words into action. Otherwise, reconciliation will remain wishful thinking. The words “nation-to-nation relationship” will become meaningless, and these types of crises will happen again.
On that positive note, thank you.