T-545-97
Nunavik Inuit as represented by Makivik Corporation (Applicant)
v.
The Minister of Canadian Heritage and The Attorney General of Canada (Respondents)
and
Her Majesty the Queen in Right of Newfoundland and Labrador Inuit Association (Interveners)
Indexed as: Makivik Corp.v. Canada (Minister of Canadian Heritage) (T.D.)
Trial Division, Richard A.C.J."Ottawa, January 6, 7, 8 and August 4, 1998.
Native peoples — Lands — Negotiation of aboriginal land claims in context of treaty process — Minister of Canadian Heritage desiring to create Torngat National Park in Northern Labrador — Negotiations thereon between Minister, Newfoundland and Labrador Government, and Labrador Inuit Association — Nunavik Inuit, represented by Makivik Corp., with whom Federal Crown engaged in comprehensive land claims settlement negotiations, excluded from process because provincial government not recognizing them — Duty to consult and negotiate in good faith — Agreement in principle between federal government and applicant constituting recognition park cannot be established until negotiations completed.
Constitutional law — Aboriginal and Treaty Rights — Negotiation of aboriginal land claims in context of treaty process — Minister of Canadian Heritage desiring to create Torngat National Park in Northern Labrador — Negotiations thereon between Minister of Canadian Heritage, Newfoundland and Labrador Government, and Labrador Inuit Association — Nunavik Inuit, with whom Federal Crown engaged in comprehensive land claims settlement negotiations, excluded from process because provincial government not recognizing them — Duty to consult and negotiate in good faith — Agreement in principle between federal government and applicant constituting recognition park cannot be established until negotiations completed.
Constitutional law — Distribution of powers — Minister of Canadian Heritage desiring to create Torngat National Park in Northern Labrador — Negotiations thereon between Minister, Newfoundland and Labrador Government, and Labrador Inuit Association — Nunavik Inuit, represented by Makivik Corp., with whom Federal Crown engaged in comprehensive land claims settlement negotiations, excluded from process because provincial government not recognizing them — Province of Newfoundland questioning Court's jurisdiction to grant relief impacting directly or indirectly on Province's constitutional authority over its lands, resources.
Nunavik Inuit through Makivik Corporation were engaged in treaty negotiations with the Crown in right of Canada. Comprehensive claims were submitted pursuant to the federal government's Comprehensive Land Claims Policy of 1987. Under the 1993 Federal Policy for the Settlement of Native Claims, it is only after the Aboriginal claimant has met the tests for establishing Aboriginal rights or title as directed by the courts that the government will accept a comprehensive claim for negotiation. A framework agreement was signed. In 1993, the Minister of State for Indian Affairs and Northern Development confirmed that the claims of Nunavik Inuit to Aboriginal rights in certain parts of Labrador had been accepted for negotiation and advised that the government of Canada wished to begin substantive negotiations.
Canada's proposed Torngat Mountain National Park was being planned within the area which is the subject of negotiations pursuant to the treaty process between the applicant and the government of Canada. In November 1992, a study to determine the feasibility of establishing a new national park in the Torngat Mountains was announced by the federal Minister of State for the Environment, the Newfoundland and Labrador Minister of Tourism and Culture and the president of the Labrador Inuit Association (LIA). Parks Canada refused to allow Makivik Corporation to participate in the feasibility study at the Working Group or Steering Committee level following the provincial government's indication that it did not support Makivik's request. The area which the Working Group set out for study as well as the area within the boundaries proposed for the creation of the Park form 80% of the territory which is the subject of the claim by Nunavik Inuit and accepted for negotiation by the Government of Canada. In November 1997, Canada, the provincial government and the LIA announced that those three parties had ratified an agreement concerning settlement of the LIA's comprehensive land claim. The agreement provided, inter alia, for the inclusion of the proposed national park in a Labrador Inuit Settlement Area over which the LIA and its members are to enjoy, inter alia, priority subsistence harvesting rights and the right to participate with governments in the management of wildlife, fish, plants and environmental assessment.
The issues were whether parties, having undertaken to engage in a treaty process in the current constitutional and policy context prevailing in Canada, thereby incur legally enforceable positive duties towards their partners in the treaty process and legally enforceable constraints on their conduct with respect to the issues and interests which are the object of the treaty negotiations. If yes, has the Crown in right of Canada breached its legally enforceable positive duties towards Makivik and Nunavik Inuit in the treaty process by acting as it did herein. The applicant sought declarations confirming the Crown's duty to negotiate, its fiduciary duty to the applicant, its obligation under subsection 91(24) of the Constitution Act, 1867 and subsection 35(1) of the Constitution Act, 1982; and that the Crown cannot proceed with the creation of the Park until it has concluded a treaty with Nunavik Inuit. Newfoundland's position is that applicant's land claim is not substantiated and it questions the Court's jurisdiction to grant relief impacting upon the Province's constitutional authority over its lands and resources.
Held, the respondents have a duty to consult with the applicant prior to establishing a park reserve in Northern Labrador. That duty includes both the duty to inform and to listen. The respondents have a duty to consult and negotiate in good faith with the applicant its claims to Aboriginal rights in certain parts of Labrador, prior to the establishment of a national park in Northern Labrador. If an agreement between the Government of Canada and the Government of Newfoundland and Labrador to establish such a national park is reached before final land claim settlement, the lands are to be set aside as a national park reserve, pending land claim negotiations.
The following principles can be drawn from the cases over the last three decades: (1) It is the role of the court to assist and further the negotiation process. Where the federal government has agreed to negotiate claims, the public anticipates that the claims will be resolved by negotiation and by settlement; (2) Subsection 35(1) of the Constitution Act, 1982 represents the recognition of Aboriginal rights in the treaty process and the government's obligation within that process; it is a specific constitutional basis upon which subsequent negotiations can take place and requires a just settlement for Aboriginal peoples; (3) A treaty process is entered into for the mutual benefit of both the Crown and the Aboriginal peoples; it should be solemnly respected; (4) The relationship between the Crown and Aboriginal peoples, as well as the dealings between the parties, should be given a generous interpretation in favour of the Aboriginal peoples; (5) The honour of the Crown is at stake in its dealings wiht the Aboriginal peoples; (6) There are additional considerations in cases dealing with Aboriginal rights. The fiduciary duty is enforceable and includes protection against unwarranted effects upon the Aboriginal interests; (7) The government's responsibility to safeguard the Aboriginal peoples' interests is equally applicable to the rights which relate to the land and the native interest in the land; (8) The federal jurisdiction and responsibilities pursuant to subsection 91(24) are tied to section 35 as well. The treaty process encompasses the transactions of Aboriginal rights as well as Aboriginal title.
The fiduciary relationship between the Crown and the Aboriginal peoples may be satisfied by the involvement of Aboriginal peoples in decisions taken with respect to their lands. There is always a duty of consultation. And consultation is relevant to determining whether the infringement of Aboriginal rights is justified. The nature and scope of the duty will vary with the circumstances. Even where the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the Aboriginal peoples whose rights and lands are at issue. Any negotiations should also include other Aboriginal nations which have a stake in the territory claimed. The Crown is under a moral, if not legal, duty to enter into and conduct those negotiations in good faith.
Although counsel for the respondent says that it is not his fault if Newfoundland does not want to talk to them (the Nunavik Inuit), and although the Province of Newfoundland has full constitutional authority over the lands in issue, national park reserves are managed under the National Parks Act, without prejudice to unresolved land claims. Traditional hunting, fishing and trapping activities of Aboriginal people continue. Standard land reversionary clauses are in place so that lands may be removed from park status if necessary to resolve land claims. Aboriginal rights which are recognized and affirmed by subsection 35(1) fall along a spectrum with respect to their degree of connection with the land. At one end are the practices, customs and traditions that are integral to the distinctive Aboriginal culture. At the other end, is Aboriginal title which is the right to the land itself. The possibility of joint title has been recognized by American courts. There may be cases in which two Aboriginal nations lived on a particular piece of land and recognized each other's entitlement to that land but nobody else's. The Agreement-in-principle between the federal government and the applicant recognizes that a park cannot be established until negotiations are completed.
statutes and regulations judicially considered
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], s. 91(24).
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 35 (as am. by SI/84-102, s. 2).
Federal Court Act, R.S.C., 1985, c. F-7, ss. 2(1) "federal board, commission or other tribunal" (as am. by S.C. 1990, c. 8, s. 1), 18 (as am. idem , s. 4), 18.1 (as enacted idem, s. 5), 18.4 (as enacted idem).
National Parks Act, R.S.C., 1985, c. N-14.
cases judicially considered
applied:
Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; (1997), 153 D.L.R. (4th) 193; 99 B.C.A.C. 161; [1998] 1 C.N.L.R. 14; 220 N.R. 161; R. v. Sparrow, [1990] 1 S.C.R. 1075; (1990), 70 D.L.R. (4th) 385; [1990] 4 W.W.R. 410; 46 B.C.L.R. (2d) 1; 56 C.C.C. (3d) 263; [1990] 3 C.N.L.R. 160; 111 N.R. 241; R. v. Van der Peet, [1996] 2 S.C.R. 507; (1996), 137 D.L.R. (4th) 289; [1996] 9 W.W.R. 1; 80 B.C.A.C. 81; 23 B.C.L.R. (3d) 1; 109 C.C.C. (3d) 1; [1996] 4 C.N.L.R. 177; 50 C.R. (4th) 1; 200 N.R. 1; 130 W.A.C. 81; Montana Band of Indians v. Canada, [1991] 2 F.C. 30; [1991] 2 C.N.L.R. 88; (1991), 120 N.R. 200 (C.A.); MacMillan Bloedel Ltd. v. Mullin; Martin v. R. in Right of B.C., [1985] 3 W.W.R. 577; (1985), 61 B.C.L.R. 145; [1985] 2 C.N.L.R. 58 (C.A.); Simon v. The Queen et al., [1985] 2 S.C.R. 387; (1985), 71 N.S.R. (2d) 15; 24 D.L.R. (4th) 390; 171 A.P.R. 15; 23 C.C.C. (3d) 238; [1986] 1 C.N.L.R. 153; 62 N.R. 366; R. v. Sioui, [1990] 1 S.C.R. 1025; (1990), 70 D.L.R. (4th) 427; 56 C.C.C. (3d) 225; [1990] 3 C.N.L.R. 127; 109 N.R. 22; 30 Q.A.C. 280; Union of Nova Scotia Indians v. Canada (Attorney General), [1997] 1 F.C. 325; (1996), 22 C.E.L.R. (N.S.) 293; [1997] 4 C.N.L.R. 280; 122 F.T.R. 81 (T.D.).
referred to:
Calder et al. v. Attorney-General of British Columbia, [1973] S.C.R. 313; (1973), 34 D.L.R. (3d) 145; [1973] 4 W.W.R. 1; confg. (1970), 13 D.L.R. (3d) 64 (B.C.C.A.); Guerin et al. v. The Queen et al., [1984] 2 S.C.R. 335; (1984), 13 D.L.R. (4th) 321; [1984] 6 W.W.R. 481; 59 B.C.L.R. 301; [1985] 1 C.N.L.R. 120; 20 E.T.R. 6; 55 N.R. 161; 36 R.P.R. 1; United States v. Santa Fe Pacific R. Co., 314 U.S. 339 (1941).
authors cited
Canada. Dept. of Indian Affairs and Northern Development. Statement of the Government of Canada on Indian Policy, 1969. Ottawa, 1969.
Canada. Royal Commission on Aboriginal Peoples. Report of the Royal Commission on Aboriginal Peoples, Vol. 2 "Restructuring the Relationship". Ottawa: Minister of Supply and Services Canada, 1996.
Indian and Northern Affairs Canada. Comprehensive Land Claims Policy. Ottawa: Minister of Supply and Services Canada, 1987.
Indian and Northern Affairs Canada. Federal Policy for the Settlement of Native Claims. Ottawa: Minister of Indian Affairs and Northern Development, 1993.
Parks Canada. Parks Canada Guiding Principles and Operational Policies. Ottawa: Minister of Supply and Services Canada, 1994.
appearances:
Peter W. Hutchins and David Schulze for applicant.
Alain A. C. Lafontaine for respondents.
Donald H. Burrage for intervener, Her Majesty the Queen in Right of Newfoundland.
Barbara A. McIsaac, Q.C. and Veryan N. G. Haysom for intervener, Labrador Inuit Association.
solicitors of record:
Hutchins, Soroka & Dionne, Montréal, for applicant.
Deputy Attorney General of Canada for respondents.
Department of Justice, Civil Division, St. John's, Newfoundland, for intervener, Her Majesty the Queen in Right of Newfoundland.
McCarthy Tétrault, Ottawa, for intervener, Labrador Inuit Association.
The following are the reasons for order rendered in English by
Richard A.C.J.:
I. Nature of the Proceedings
This proceeding, commenced by an originating notice of motion dated March 26, 1997, raises serious issues concerning the negotiation of Aboriginal land claims in the context of the treaty process. It involves consideration of the division of powers between the federal government and the provinces and the applicability and scope of section 35 [as am. by SI/84-102, s. 2] of the Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]. It does not involve, at this stage, the determination of substantive rights. As counsel for the applicant stated, this proceeding is about process. Counsel for the applicant advances the proposition that section 35 of the Constitution Act, 1982 not only recognizes and affirms Aboriginal and treaty rights but also enshrines the treaty process itself in the Constitution. The treaty process and the duties of the parties arising out of that process, according to counsel, are constitutionally protected by section 35. This proceeding also raises the issue of the role of the courts in ensuring that negotiations within the treaty process are respectful of the duties and obligations of the parties.
The decision, or more specifically the failure to act, which gives rise to this application is defined by the applicant as follows:
On February 19, 1997, Zebedee Nungak, the president of Makivik Corporation, wrote to the Respondent Minister of Canadian Heritage requesting within two weeks her confirmation that Canada would only proceed with the creation of the Torngat Mountains National Park with the consent of Nunavik Inuit and as part of the treaty process which Canada is engaged in with the representatives of Nunavik Inuit, the whole as appears from Exhibit 8 to the Affidavit of Sam Silverstone.
The Respondent Minister of Canadian Heritage has failed to provide the Applicants with the undertaking required by them in the letter of February 19, 1997.
The issues framed by the applicant are as follows:
i) Do parties, having undertaken to engage in a treaty process in the current constitutional and policy context prevailing in Canada, thereby incur legally enforceable positive duties towards their partners in the treaty process and legally enforceable constraints on their conduct with respect to the issues and interests which are the object of the treaty negotiations?
ii) If the answer to i) is in the affirmative, has the Crown in right of Canada breached its legally enforceable positive duties towards Makivik and Nunavik Inuit in the treaty process:
a) by doggedly continuing towards the establishment of the Torngat National Park in Northern Labrador notwithstanding the treaty process engaged with Nunavik Inuit, and
b) by systematically allowing Nunavik Inuit to be excluded from the substantive process leading to the establishment of the Park, and
c) by refusing at the same time to discuss the establishment of the Park within the context of the treaty negotiations with Nunavik Inuit?
The relief sought by the applicant is as follows:
Declare that the Crown in Right of Canada has a duty to negotiate treaties with Aboriginal peoples in good faith and that the Respondent Minister of Canadian Heritage, as a Minister of the Crown, is bound by such duty.
Declare that the Crown in Right of Canada, by accepting for negotiation the Nunavik Inuit assertion of rights in and the resulting claims to Labrador, by advising Nunavik Inuit that the Government of Canada wished to begin substantive negotiations, and by commencing negotiations pursuant to a Negotiation Framework Agreement with Makivik, recognized the assertion of rights by and the resulting claim of the Nunavik Inuit and engaged its responsibility to negotiate a treaty in good faith with Nunavik Inuit and to make every reasonable effort to conclude and sign a treaty with Nunavik Inuit.
Declare that the Crown in right of Canada recognized a Nunavik Inuit Aboriginal interest in the lands at issue by accepting for negotiation the Nunavik Inuit assertion of rights in and the resulting claims to Labrador, by advising Nunavik Inuit that the Government of Canada wished to begin substantive negotiations, and by commencing negotiations pursuant to a Negotiation Framework Agreement with Makivik.
Declare that the Respondent Minister of Canadian Heritage is in breach of the Crown's fiduciary duty to the Applicants by refusing to confirm to them that in territory covered by their treaty process with the government of Canada a national park will only be created pursuant to their treaty process.
Declare that section 91(24) of the Constitution Act, 1867 and subsection 35(1) of the Constitution Act, 1982 impose on the Crown an obligation to treat with Nunavik Inuit before creating a park on the territory concerning which the parties are involved in a treaty process with respect to Nunavik Inuit's Aboriginal rights.
Declare that the creation of a national park in the Torngat Mountains without the consent of the Nunavik Inuit would be a violation of their treaty process and therefore offends the rule against bad faith and is ultra vires.
Declare that for the Respondents to allow the designation for any purpose related to the establishment of a national park of lands under negotiation as part of the Applicants' treaty process is contrary to the Crown's duty to negotiate in good faith, endangers the integrity of the process and would substantially nullify its objective.
Declare that the Crown in Right of Canada cannot proceed with the creation of the proposed Torngat National Park until it has concluded a treaty with Nunavik Inuit in respect of their assertion of rights and resulting claim in Labrador which Canada has accepted for negotiation, or other arrangements satisfactory to them have been made.
II. Background
The events giving rise to this proceeding can be summarized as follows:
a) Treaty Negotiations
Nunavik Inuit through Makivik Corporation are currently engaged in treaty negotiations with the Crown in right of Canada.
In 1987, Nunavik Inuit through Makivik Corporation submitted their comprehensive claim pursuant to the federal government's Comprehensive Land Claims Policy of 1987.
The Crown in right of Canada in the Federal Policy for the Settlement of Native Claims, March 1993, has identified the purpose of treaty negotiations as follows [at page 7]:
Comprehensive claims settlements are negotiated to clarify the rights of Aboriginal groups to lands and resources, in a manner that will facilitate their economic growth and contribute to the development of Aboriginal self-government. Settlements are intended to ensure that the interests of Aboriginal groups in resource management and environmental protection are recognized, and that claimants share in the benefits of development.
The decision by the federal government to accept a comprehensive claim for negotiation is not taken lightly but in fact only after the Aboriginal claimant has met the tests for establishing Aboriginal rights or title as directed by the courts. This is expressly acknowledged in the Federal Policy for the Settlement of Native Claims, March 1993.
For the federal government to accept a comprehensive claims submission under the Federal Policy for the Settlement of Native Claims, March 1993, an Aboriginal group must demonstrate all of the following [at pages 5-6]:
1. The Aboriginal group is, and was, an organized society.
2. The organized society has occupied the specific territory over which it asserts Aboriginal title since time immemorial. The traditional use and occupancy of the territory must have been sufficient to be an established fact at the time of assertion of sovereignty by European nations.
3. The occupation of the territory by the Aboriginal group was largely to the exclusion of other organized societies.
4. The Aboriginal group can demonstrate some continuing current use and occupancy of the land for traditional purposes.
5. The group's Aboriginal title and rights to resource use have not been dealt with by treaty.
6. Aboriginal title has not been eliminated by other lawful means.
The federal government's Comprehensive Land Claims Policy of 1987 includes procedures involving the following steps:
1. Statement of Claim;
2. Acceptance of claims;
3. Preliminary negotiations;
4. Framework agreements;
5. Agreements-in-principle;
6. Final agreements.
The Comprehensive Land Claims Policy of 1987 states with respect to the "framework agreements" [at page 24]:
Negotiations towards the development of a framework agreement will be initiated when the Minister of Indian Affairs and Northern Development judges the likelihood of successful negotiations to be high, . . . .
Framework agreements will be negotiated and will determine the scope, process, topics, and parameters for negotiation. Approaches to obtaining certainty with respect to lands and resources, and the order and timeframe of negotiations will also be provided for in the framework agreements.
Framework agreements, and substantial changes to them, will be considered and approved by the federal government.
In the case of Nunavik Inuit, preliminary negotiations were initiated and concluded in the signing of a framework agreement.
The steps taken in this process can be summarized as follows:
(1) Formal notice of the rights of Nunavik Inuit in Labrador and the offshore as recognized and affirmed in section 35 of the Constitution Act, 1982 was given to the Government of Canada on April 1, 1985.
(2) On June 18, 1987, Makivik tabled on behalf of Inuit of Nunavik before the Office of Comprehensive Claims, Department of Indian Affairs and Northern Development, an initial statement of claim with respect to Northern Quebec Inuit land use and occupancy in Labrador and the offshore area surrounding Labrador.
(3) By letter dated November 7, 1990, the Honourable Tom Siddon, Minister of Indian Affairs and Northern Development, informed Senator Charlie Watt, President of Makivik Corporation that the Department had completed its review of Inuit of Nunavik's statement of claim and supporting documentation and that the Department in conjunction with the Department of Justice had concluded that the documentation submitted "did not meet the criteria of the department for acceptance of a comprehensive claim for negotiation".
(4) The Office of Comprehensive Claims notified Makivik that further additional data was required and identified six (6) additional areas of information that would be required before the Makivik statement of claim to Aboriginal rights in Labrador would be considered for acceptance for negotiations under the claims policy. The six (6) topics that needed to be addressed were:
" the archeology and pre-historic occupancy of the region identified in the comprehensive claim;
" the utilization of Labrador by the Inuit of Nunavik during historical time as defined by the Office of Comprehensive Claims to be from first European contact to the year 1930;
" the family histories or genealogical linkages that establish relationships between present day Inuit of Nunavik and the lands and offshore waters of Labrador;
" the historical development of the Port Burwell/Killiniq area in relationship to original settlement and relocations;
" the descriptions and analysis of the patterns of land use and occupancy in Labrador by the Inuit of Nunavik;
" a map that clearly identifies the claim area.
(5) Supplementary data integrated into the original statement of claim was provided to the Government on October 27, 1992, in the integrated statement of claim.
(6) The 1992 integrated statement of claim submitted by Makivik includes detailed mapping of Nunavik Inuit land and resource use and occupancy in Labrador indicating extensive and intensive land and resource use and occupancy throughout the area of the proposed national park.
(7) On June 23, 1993, the Minister of State for Indian Affairs and Northern Development confirmed that the claims of Nunavik Inuit to Aboriginal rights in certain parts of Labrador had been accepted for negotiation and advised that the Government of Canada wished to begin substantive negotiations.
(8) On August 19, 1993, the Government of Canada and Makivik executed a negotiation framework agreement, the stated purpose of which was to "promote efficient, effective, timely and orderly negotiations towards an Agreement-in-Principle" (paragraph 1.1), set out the parameters of the negotiation process, the scope of the negotiations and the agenda, funding and timetable of the negotiations (paragraph 1.2) and which provided inter alia in its preamble that the parties were undertaking the negotiations in good faith.
The Government of Canada has recently reaffirmed that Makivik has "an accepted comprehensive claim in Northern Labrador" and that a treaty process is engaged between Canada and Nunavik Inuit, as appears more fully from the letters from Minister Ronald Irwin dated October 3, 1996, and October 26, 1996.1
The Government of Canada wishes to confirm that Makivik has an accepted comprehensive claim in northern Labrador as outlined in the June 23, 1993 letter from the Honourable Pierre Vincent, then Minister of State of Indian Affairs and Northern Development, to Senator Charlie Watt, then President of Makivik Corporation. A copy of this letter is enclosed for ease of reference.
b) Torngat National Park Process
The Torngat Mountains area of Labrador was first proposed by Parks Canada as a potential national park in the mid-1970s, but further consideration was delayed until Aboriginal land claims in the areas were addressed.
Canada's proposed Torngat Mountain National Park is being planned within the area which is the subject of negotiations pursuant to the treaty process between the applicant and the Government of Canada.
The Torngat Mountains include the lands within the northernmost part of the Ungava-Labrador Peninsula, they are divided by the border with Quebec and extend eastward to the Labrador Sea.
The federal government policy respecting the establishment of national parks purports to operate within the framework of protection for Aboriginal interests as prescribed by the courts and the Constitution.
The guiding principles in the Parks Canada Guiding Principles and Operational Policies dated 1994 and operational policy of Parks Canada when selecting and assessing new national parks are as follows [at pages 26-27]:
1.2.2
In selecting potential national parks, consideration will be given to a wide range of factors, including:
. . .
xi) the implications of Aboriginal rights, comprehensive land claims and treaties with Aboriginal peoples;
. . .
1.2.3
Potential national parks will be selected in consultation with provincial or territorial governments, other federal agencies, non-government organizations, affected Aboriginal peoples and the interested public.
. . .
1.3.1
Parks Canada, in conjunction with provincial or territorial governments, will undertake an assessment of the feasibility of a new park proposal; where there are opportunities, this will be undertaken as part of other processes such as regional land use planning, provincial protected area strategies or Aboriginal comprehensive land claim negotiations.
On November 23, 1992, a study to determine the feasibility of establishing a new national park in the Torngat Mountains was announced by the federal Minister of State for the Environment, the Newfoundland and Labrador Minister of Tourism and Culture and the President of the Labrador Inuit Association.
The first meeting of the Torngat Mountains National Park Feasibility Assessment Working Group was held on February 16, 1993.
Throughout the period from 1995 through 1997, Makivik attempted through both formal and informal means to obtain assurances that the park would not be created without Nunavik Inuit consent.
From late 1993 through early 1996, Makivik attempted to reach an overlap agreement with the Labrador Inuit Association which would have, inter alia, addressed the park planning process.
On September 28, 1995, Makivik sent a letter, to all three members of the Torngat Mountains National Park Feasibility Assessment Steering Committee advising that the Labrador Inuit did not constitute the sole Aboriginal group with recognized rights and interests in the area and requesting that Makivik be invited to participate, as a member, in both the Steering Committee and the Working Group.
Parks Canada refused to allow Makivik Corporation to participate in the feasibility study at the Working Group or Steering Committee level following the Government of Newfoundland and Labrador's indication that it did not support Makivik's request.
The area which the Torngat Mountains National Park Feasibility Assessment Working Group set out for study as well as the area within the boundaries proposed for the creation of the Torngat Mountains National Park form 80% of the territory which is the subject of the claim by Nunavik Inuit and accepted for negotiation by the Government of Canada.
On November 5, 1997, Canada, the Government of Newfoundland and the Labrador Inuit Association announced that those three parties had ratified an agreement concerning settlement of the Labrador Inuit Association's comprehensive land claim. The agreement provides, inter alia, for the inclusion of the proposed Torngat Mountains National Park in a Labrador Inuit Settlement Area over which the Labrador Inuit Association and its members are to enjoy, amongst other rights and benefits, priority subsistence harvesting rights and the right to participate with governments in the management of wildlife, fish, plants and environmental assessment.
In a News Release of November 5, 1997, from the Government of Newfoundland entitled "Details of LIA's land claim agreement released" and the attached backgrounders concerning land claims negotiations in Labrador it is stated:
Senior officials of the federal and provincial governments and the LIA have reached agreement on major outstanding issues that will serve to facilitate the completion of an Agreement-in-Principle. The agreed Negotiators' Text includes the following elements.
1) Land Regime
The Agreement sets out two categories of land affecting a total of 28,000 square miles in northern Labrador:
(a) Labrador Inuit Lands (LIL)"Labrador Inuit will receive surface title to 6,100 square miles of land where Inuit will enjoy a substantial package of rights and benefits including exclusive harvesting rights and control of new developments.
(b) Labrador Inuit Settlement Area (LISA)"This area comprises a total of 21,900 square miles and will include the proposed Torngat Mountains National Park of approximately 3,000 square miles. Within LISA, Labrador Inuit will enjoy, among other rights and benefits, priority subsistence harvesting rights and the right to participate with governments in the management of wildlife, fish, plants and environmental assessment.2
According to Premier Brian Tobin of Newfoundland, the agreement will form the basis of an agreement in principle to be completed within months.3
The applicant alleges that, in addition to Canada's refusal to include Nunavik Inuit in the park planning process, Canada has also refused to discuss the establishment of the Torngat Park at the Nunavik Inuit treaty negotiating table.
The applicant alleges that both the province of Newfoundland and the Labrador Inuit Association have been able to use their position on the Feasibility Assessment Steering Committee and Working Group in order to ensure that the proposed boundaries of the park would not include certain lands deemed crucial to their interests. The applicant alleges more specifically that:
1) With respect to the mining industry, and as a result of the decision by the Government of Newfoundland and Labrador that the Ramah Group and lands immediately adjoining it to the east remain accessible to mineral exploration and extraction, these lands were excluded from the park boundaries proposed by the Working Group.
2) With respect to the Labrador Inuit Association, the lands between Saglek and Hebron Fiords were also excluded from the proposed boundaries of the park because the Labrador Inuit Association was of the view that this entire area should remain available to future Labrador Inuit land use, unencumbered by a national park.
3) The fiords which form the coast of the Torngat Mountains were also excluded from the proposed final boundaries of the park because the Labrador Inuit Association wanted to retain the option of commercial fishing in the fiords.
4) The northernmost portion of the proposed park" comprising 806 square kilometres clearly within the territory for which the Government of Canada acknowledged Nunavik Inuit use and occupancy"was added to the proposed boundaries very late in the planning process, once southern lands had been withdrawn in order to protect Newfoundland's mineral interests and the LIA's commercial fishing aspirations.
III. Position of the Applicant
The applicant asserts that:
1) This proceeding does not affect the rights of the Province.
2) For the purpose of this proceeding the applicants have not asked for any determination of their Aboriginal rights to lands and waters in Labrador within the meaning of subsection 35(1) of the Constitution Act, 1982.
3) This proceeding concerns the obligations of the Crown in right of Canada flowing from its agreement to negotiate a treaty with the applicants in settlement of a comprehensive land claim pursuant to the Negotiation Framework Agreement of August 19, 1993 as well as the Federal Government Comprehensive [Land] Claims Policy of 1987 and the Federal Policy for the Settlement of Native Claims, March 1993.
The applicant argues that the importance of good faith negotiations with all Aboriginal nations having a stake in the territory claimed was emphasized by the Supreme Court of Canada in its recent judgment in Delgamuukw v. British Columbia:4
Moreover, the Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith. Ultimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this Court, that we will achieve what I stated in Van der Peet, supra, at para. 31, to be a basic purpose of s. 35(1)""the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown". Let us face it, we are all here to stay.
Moreover, there is a duty on respondents for good faith performance of their contractual obligations incurred under the Negotiation Framework Agreement of August 19, 1993.
The applicant contends that acceptance of rejection by the province of rights within the meaning of subsection 35(1) of the Constitution Act, 1982, as asserted by an Aboriginal people, is not determinative of the existence of the rights.
It would be equally perverse to use the refusal of the intervener to acknowledge applicant's rights in Newfoundland as a reason for denying the applicant the relief sought in these proceedings, a declaration of its right to engage in a treaty process unencumbered by prior designation of the territory in question, a treaty process aimed at achieving protection for the applicant's rights and greater certainty for all.
The applicant quotes from a federal policy paper:
It is often stated that the federal government is seeking to end, or extinguish, all Aboriginal rights through claims settlements. This is not the case. The government's objective is to negotiate agreements that will provide certainty of rights to lands and resources in areas where Aboriginal rights have not yet been dealt with by treaty or other legal means. In doing so, the special rights of Aboriginal groups that are agreed upon are set out in constitutionally protected agreements or treaties.5
For the purposes of these proceedings, the applicant invokes its claim to Aboriginal rights in and over Labrador and the offshore only to the extent that these were recognized by Canada for the purposes of negotiation.
The federal government through its Comprehensive Land Claims Policy, the courts, including the Supreme Court of Canada, and the Royal Commission on Aboriginal Peoples, have all acknowledged that judicial determination is not the sole and unique way in which to have Aboriginal and treaty rights recognized and affirmed; indeed it may not be the preferred manner of doing so.
The Chief Justice in Delgamuukw has so directed. Similar direction was given by the British Columbia Court of Appeal in MacMillan Bloedel.
I think it fair to say that, in the end, the public anticipates that the claims will be resolved by negotiation and by settlement. This judicial proceeding is but a small part of the whole . . . between governments and the Indian nations.6
Mr. Justice La Forest in Delgamuukw [at page 1135], referred with approval to the statements by the Royal Commission on Aboriginal Peoples [Report of the Royal Commission on Aboriginal Peoples] respecting the relative merits of negotiated recognition of Aboriginal rights and title over court-imposed solutions. In the passage referred to by Mr. Justice La Forest, the Royal Commission states [Vol. 2 "Restructuring the Relationship" at page 562]:
The courts can be only one part of a larger political process of negotiation and reconciliation. As noted in a recent report by a task force of the Canadian Bar Association, "While the courts may be useful to decide some native issues or to bring pressure on the parties to settle by some other means, it appears clear that judicial adjudication will not provide all of the answers to the issues surrounding native claims".
. . .
Negotiations are clearly preferable to court-imposed solutions. Litigation is expensive and time-consuming. Negotiation permits parties to address each other's real needs and make complex and mutually agreeable trade-offs. A negotiated agreement is more likely to achieve legitimacy than a court-ordered solution, if only because the parties participate more directly and constructively in its creation. Negotiation also mirrors the nation-to-nation relationship that underpins the law of Aboriginal title and structures relations between Aboriginal nations and the Crown.
The applicant cites R. v. Sparrow,7 wherein Dickson C. J. stated:
It is clear, then, that s. 35(1) of the Constitution Act, 1982, represents the culmination of a long and difficult struggle in both the political forum and the courts for the constitutional recognition of aboriginal rights. The strong representations of native associations and other groups concerned with the welfare of Canada's aboriginal peoples made the adoption of s. 35(1) possible and it is important to note that the provision applies to the Indians, the Inuit and the Métis. Section 35(1), at the least, provides a solid constitutional base upon which subsequent negotiations can take place. It also affords aboriginal peoples constitutional protection against provincial legislative power. We are, of course, aware that this would, in any event, flow from the Guerin case, supra, but for a proper understanding of the situation, it is essential to remember that the Guerin case was decided after the commencement of the Constitution Act, 1982. In addition to its effect on aboriginal rights, s. 35(1) clarified other issues regarding the enforcement of treaty rights (see Sanders, "Pre-existing Rights: The Aboriginal Peoples of Canada," in Beaudoin and Rathushny, eds., The Canadian Charter of Rights and Freedoms , 2nd ed., especially at p. 730).
In our opinion, the significance of s. 35(1) extends beyond these fundamental effects. Professor Lyon in "An Essay on Constitutional Interpretation" (1988), 26 Osgoode Hall L.J. 95, says the following about s. 35(1), at p. 100:
. . . the context of 1982 is surely enough to tell us that this is not just a codification of the case law on aboriginal rights that had accumulated by 1982. Section 35 calls for a just settlement for aboriginal peoples. It renounces the old rules of the game under which the Crown established courts of law and denied those courts the authority to question sovereign claims made by the Crown.
The applicant also cites R. v. Van der Peet,8 where Lamer C.J. discussed the general principles applicable to legal disputes between Aboriginal peoples and the Crown.
Before turning to a purposive analysis of s. 35(1), however, it should be noted that such analysis must take place in light of the general principles which apply to the legal relationship between the Crown and aboriginal peoples. In Sparrow, supra, this Court held at p. 1106 that s. 35(1) should be given a generous and liberal interpretation in favour of aboriginal peoples:
When the purposes of the affirmation of aboriginal rights are considered, it is clear that a generous, liberal interpretation of the words in the constitutional provision is demanded. [Emphasis added.]
This interpretive principle, articulated first in the context of treaty rights";Simon v. The Queen, [1985] 2 S.C.R. 387, at p. 402; Nowegijick v. The Queen, [1983] 1 S.C.R. 29, at p. 36; R. v. Horseman, [1990] 1 S.C.R. 901, at p. 907; R. v. Sioui, [1990] 1 S.C.R. 1025, at p. 1066"arises from the nature of the relationship between the Crown and aboriginal peoples. The Crown has a fiduciary obligation to aboriginal peoples with the result that in dealings between the government and aboriginals the honour of the Crown is at stake. Because of this fiduciary relationship, and its implication of the honour of the Crown, treaties, s. 35(1), and other statutory and constitutional provisions protecting the interests of aboriginal peoples, must be given a generous and liberal interpretation: R. v. George , [1966] S.C.R. 267, at p. 279. This general principle must inform the Court's analysis of the purposes underlying s. 35(1), and of that provision's definition and scope.
The fiduciary relationship of the Crown and aboriginal peoples also means that where there is any doubt or ambiguity with regards to what falls within the scope and definition of s. 35(1), such doubt or ambiguity must be resolved in favour of aboriginal peoples. In R. v. Sutherland, [1980] 2 S.C.R. 451, at p. 464, Dickson J. held that paragraph 13 of the Memorandum of Agreement between Manitoba and Canada, a constitutional document, "should be interpreted so as to resolve any doubts in favour of the Indians, the beneficiaries of the rights assured by the paragraph". This interpretive principle applies equally to s. 35(1) of the Constitution Act , 1982 and should, again, inform the Court's purposive analysis of that provision.
The applicant also relies on the most recent decision of the Supreme Court of Canada in Delgamuukw. Lamer C.J. discussed the jurisdiction of the federal government:9
I conclude with two remarks. First, even if the point were not settled, I would have come to the same conclusion. The judges in the court below noted that separating federal jurisdiction over Indians from jurisdiction over their lands would have a most unfortunate result"the government vested with primary constitutional responsibility for securing the welfare of Canada's aboriginal peoples would find itself unable to safeguard one of the most central of native interests"their interest in their lands. Second, although the submissions of the parties and my analysis have focussed on the question of jurisdiction over aboriginal title, in my opinion, the same reasoning applies to jurisdiction over any aboriginal right which relates to land. As I explained earlier, Adams clearly establishes that aboriginal rights may be tied to land but nevertheless fall short of title. Those relationships with the land, however, may be equally fundamental to aboriginal peoples and, for the same reason that jurisdiction over aboriginal title must vest with the federal government, so too must the power to legislate in relation to other aboriginal rights in relation to land.
. . .
The extent of federal jurisdiction over Indians has not been definitively addressed by this Court. We have not needed to do so because the vires of federal legislation with respect to Indians, under the division of powers, has never been at issue. The cases which have come before the Court under s. 91(24) have implicated the question of jurisdiction over Indians from the other direction"whether provincial laws which on their face apply to Indians intrude on federal jurisdiction and are inapplicable to Indians to the extent of that intrusion. As I explain below, the Court has held that s. 91(24) protects a "core" of Indianness from provincial intrusion, through the doctrine of interjurisdictional immunity.
It follows, at the very least, that this core falls within the scope of federal jurisdiction over Indians. That core, for reasons I will develop, encompasses aboriginal rights, including the rights that are recognized and affirmed by s. 35(1). Laws which purport to extinguish those rights therefore touch the core of Indianness which lies at the heart of s. 91(24), and are beyond the legislative competence of the provinces to enact. The core of Indianness encompasses the whole range of aboriginal rights that are protected by s. 35(1). Those rights include rights in relation to land; that part of the core derives from s. 91(24)'s reference to "Lands reserved for the Indians". But those rights also encompass practices, customs and traditions which are not tied to land as well; that part of the core can be traced to federal jurisdiction over "Indians". Provincial governments are prevented from legislating in relation to both types of aboriginal rights.
Counsel for the applicant asserted that it is the role of the court to assist and further the negotiating process. Counsel relied on the case of MacMillan Bloedel10 in which it is said:
The fact that there is an issue between the Indians and the province based upon aboriginal claims should not come as a surprise to anyone. Those claims have been advanced by the Indians for many years. They were advanced in Calder, and half the court thought that they had some substance. The Constitution Act, 1982 recognized and affirmed "the existing aboriginal and treaty rights of the aboriginal peoples of Canada". The federal government has agreed to negotiate some claims. Other claims are being advanced. Another action has been started by other Indian bands concerning lands in the northwestern part of the province. It is significant that no injunction has been sought in that action. I think it fair to say that, in the end, the public anticipates that the claims will be resolved by negotiation and by settlement. This judicial proceeding is but a small part of the whole of a process which will ultimately find its solution in a reasonable exchange between governments and the Indian nations. Viewed in that context, I do not think that the granting of an interlocutory injunction confined to Meares Island can be reasonably said to lead to confusion and uncertainty in the minds of the public.
Counsel for the applicant also cited the following extract from the decision of the Federal Court of Appeal in Montana Band of Indians v. Canada:11
The Court is of the view also that the subject matter of dispute, inasmuch as it involves the constitutionality of legislation ancillary to the Manitoba Act, 1870 is justiciable in the courts and that declaratory relief may be granted in the discretion of the court in aid of extra-judicial claims in an appropriate case.
The situation at bar is not dissimilar. As noted by the Associate Chief Justice, the appellants rely on a complex series of constitutional instruments in support of the declarations sought.
This is also a case where counsel for the appellants has stated clearly that if the declarations sought are obtained, they might well be used in support of "extra-judicial claims." In such an eventuality, there might never be a second phase to the process as visualized by the Associate Chief Justice. Negotiated settlements of aboriginal claims are a distinct possibility in today's reality.
Counsel drew the Court's attention to the following passages taken from the Report of the Royal Commission on Aboriginal Peoples:12
The courts can be only one part of a larger political process of negotiation and reconciliation. As noted in a recent report by a task force of the Canadian Bar Association, "While the courts may be useful to decide some native issues or to bring pressure on the parties to settle by some other means, it appears clear that judicial adjudication will not provide all of the answers to the issues surrounding native claims". Similarly, Chief Edward John of the First Nations Summit of British Columbia stated at our hearings:
It has never been the role of the Courts to define the detailed terms of the accommodation between the Crown and the First Nations. We have gone to the Courts in our own defence. We view them as a source of guidance for government, as to the rights of Aboriginal peoples and the resulting duties of government.
Chief Edward John
First Nations Summit of British Columbia
Prince George, British Columbia, 1 June 1993
. . .
The availability of interim relief is closely related to the broader process of nation-to-nation negotiation. Interim relief against Crown and third-party activity on disputed territory is bound to serve as an incentive for the Crown to reach an agreement concerning lands and resources. Because negotiation is preferable to litigation as a means of resolving disputes between the Crown and Aboriginal nations, "courts should design their remedies to facilitate negotiations between First Nations, governments and other affected interests". Aboriginal peoples will secure substantive gains in negotiations only if courts order remedies that give Aboriginal parties more bargaining power than they have under Canadian law at present.
Based on these authorities, counsel for the applicant invites the Court to conclude that:
The Federal Government through its Comprehensive [Land] Claims Policies [Policy], the courts, including the Supreme Court of Canada, and the Royal Commission on Aboriginal Peoples, have all acknowledged that judicial determination is not the sole and unique way in which to have Aboriginal and treaty rights recognized and affirmed; indeed it may not be the preferred manner of doing so.
While the courts have directed that complex substantive issues are often better resolved through negotiations than through litigation, they have also made clear that there is a useful role for the courts in assisting the negotiation process.
The Royal Commission on Aboriginal Peoples has urged courts to "design their remedies to facilitate negotiations".
The Royal Commission on Aboriginal Peoples asserts that government and Aboriginal action in the form of nation-to-nation negotiations "is central to the constitutional recognition and affirmation of Aboriginal rights" under subsection 35 of the Constitution Act , 1982.
The treaty process is primarily a process which is federal in nature and it is the Government of Canada which is, under the Constitution, ultimately responsible for the conduct of negotiations.
Clearly, if there is any doubt as to whether the treaty process itself falls within the scope and definition of subsection 35(1), such doubt or ambiguity must be resolved in favour of Nunavik Inuit.
The applicant contends that it is now well-established law that there exists a fiduciary relationship between the Crown and Aboriginal peoples from which fiduciary duties flow. In support of this argument, reliance is placed on the Sparrow decision, at page 1108:
In Guerin, supra, the Musqueam Band surrendered reserve lands to the Crown for lease to a golf club. The terms obtained by the Crown were much less favourable than those approved by the Band at the surrender meeting. This Court found that the Crown owed a fiduciary obligation to the Indians with respect to the lands. The sui generis nature of Indian title, and the historic powers and responsibility assumed by the Crown constituted the source of such a fiduciary obligation. In our opinion, Guerin, together with R. v. Taylor and Williams (1981), 34 O.R. (2d) 360, ground a general guiding principle for s. 35(1). That is, the Government has the responsibility to act in a fiduciary capacity with respect to aboriginal peoples. The relationship between the Government and aboriginals is trustlike, rather than adversarial, and contemporary recognition and affirmation of aboriginal rights must be defined in light of this historic relationship.
It is well established that the categories of relationships that give rise to fiduciary obligations are not closed and the content of the fiduciary duty varies with the type of relationship to which it is applied. In the present proceeding, the applicant is asking this Court to confirm that the duty flows from the relationship established through the treaty process.
The applicant contends that there are constraints on Crown behaviour towards Aboriginal peoples. This constraint is not only applicable to Crown action but also Crown inaction. As the Supreme Court stated in Sparrow:13
Our history has shown, unfortunately all too well, that Canada's aboriginal peoples are justified in worrying about government objectives that may be superficially neutral but which constitute de facto threats to the existence of aboriginal rights and interests. By giving aboriginal rights constitutional status and priority, Parliament and the provinces have sanctioned challenges to social and economic policy objectives embodied in legislation to the extent that aboriginal rights are affected.
Moreover, the Government of Canada and Makivik have entered into the Framework Agreement in which they promised each other to undertake negotiations in good faith to conclude a comprehensive land claims agreement on a timely and expeditious basis. This Court is entitled to determine whether the respondents have fulfilled that obligation.
Any contention by Canada or Newfoundland in this case that the Crown's promise to engage in a treaty process does not include enforceable duties towards Nunavik Inuit and their Aboriginal rights must be judged against the evolution of the law in regard to the fiduciary duties on the Crown.
Nunavik Inuit submits that any doubt or ambiguity surrounding the Crown's responsibilities in the treaty process must be resolved in such a way as to fulfil the fiduciary duty owed by the Crown to the applicant which duty includes an obligation to protect its interests and which is enforceable by the courts.
By agreeing with the Government of Newfoundland to negotiate the creation of the proposed Torngat Mountains park in the absence of Nunavik Inuit, the respondent has preferred Newfoundland's wishes and its own goal of park creation to the successful completion of the treaty process in which it is engaged with the applicant contrary to the respondent's fiduciary duty owed to the applicant.
It is entirely appropriate for this Court to intervene to constrain the Crown from acting in conflict with its fiduciary duty towards the applicant.
The applicant concludes that, having accepted the applicant's offer to negotiate a treaty and having commenced treaty negotiations with the applicant, the Government of Canada has a duty to conduct its negotiations with the applicant in good faith in order to attempt to settle issues relating to their rights.
IV. Position of the Respondent
In the affidavit evidence of Michael W. Porter, the Acting Director General, National Parks Directorate, dated May 26, 1997, the Government of Canada provided the following information concerning the park process:
Pending any transfer of administration and control of lands to the Crown in right of Canada for national park purposes, the Government of Newfoundland and Labrador has jurisdiction over all lands and resources within the area of the proposed national park. Accordingly, beginning with the provincial government's indication in October 1995 that it would not agree with Makivik's request that it be invited to participate as a member of the park feasibility study Steering Committee or Working Group, I and my staff have endeavoured to identify an alternate approach that would provide Makivik and Nunavik Inuit with the opportunity to have a meaningful role in the park establishment process, while working within the constraints imposed by Newfoundland's position.
Thus, in my February 23, 1996 letter to Mr. Silverstone I also indicated that " . . . Parks Canada is prepared to meet in a parallel process with Makivik, and LIA if it wishes, to consider those matters that are within federal jurisdiction in so far as they pertain to concluding a park agreement for the Torngat Mountains area, without prejudice to aboriginal land claims", the whole as incorporated in Exhibit 6 already attached to this Affidavit.
Mr. Zebedee Nungak, President of Makivik Corporation wrote to the Honourable Sheila Copps, Minister of Canadian Heritage on September 18, 1996. Among other matters, he indicated that Makivik and Nunavik Inuit had concluded that the proposed parallel consultation process proposed in my letter to Mr. Silverstone of February 23, 1996 was not acceptable to them. Mr. Nungak's letter of September 18, 1996 is attached to this Affidavit as Exhibit 10.
Parks Canada's offer to discuss the possibility of a parallel process in which to address Makivik's concerns and interests in the proposed national park has not been revoked. However, Makivik's refusal to consider the matter has prevented any substantive discussion of the form it might take. Parks Canada remains willing and interested in working with Makivik to identify a means by which Makivik can have a substantive role in the park establishment process.
Parks Canada accepted Makivik's invitation to meet with the residents of the two northern Quebec communities located most closely to northern Labrador, to provide information regarding the study. At those meetings, Parks Canada representatives emphasized their willingness to return to consult with the communities, whenever requested. When Makivik's request to participate formally in the study, within the existing Steering Committee/Working Group framework, proved unworkable due to the position of the Government of Newfoundland and Labrador, Parks Canada developed and proposed a parallel process to facilitate direct consultation with Makivik and Nunavik Inuit in the feasibility study. Makivik has refused to discuss further with Parks Canada its possible participation in such a parallel consultation process. The President of Makivik Corporation did not respond to the opportunity presented by Minister Copps' invitation to meet personally with him to discuss Makivik's concerns.
In a further affidavit of Gregory Gauld, the Director General-Comprehensive Claims, dated December 2, 1997, it is further stated:
The Inuit of Labrador, represented by the Labrador Inuit Association (L.I.A.), in 1977 filed with the Government of Canada a comprehensive claim in respect of lands in northern Labrador in the Province of Newfoundland.
The claim referred to above in paragraph 2 has been accepted for negotiation by both the Government of Canada and the Government of Newfoundland and Labrador.
To my information and belief, extensive negotiations with a view to concluding a comprehensive claim agreement concerning the claim referred to above in paragraph 2 have taken place among the LIA, the Government of Canada and the Government of Newfoundland and Labrador and are still taking place.
To my information and belief, the negotiations referred to above in paragraph 4 have, amongst other things, dealt with general principles concerning the proposed establishment of a national park in the northern portion of the area claimed by the Inuit of Labrador.
The Nunavik Inuit, represented by Makivik Corporation, filed with the Government of Canada a comprehensive claim in respect of the offshore area surrounding northern Quebec and northern Labrador and in respect of lands in northern Labrador in the Province of Newfoundland.
The claim referred to above in paragraph 6 has been accepted for negotiation by the Government of Canada but the Government of Newfoundland and Labrador has rejected for negotiation the claim of Nunavik Inuit to areas within the Province of Newfoundland.
To my information and belief, extensive negotiations with a view to concluding a comprehensive claim agreement in respect of that part of the claim referred to above in paragraph 6 concerning the offshore area surrounding northern Quebec have taken place between the Government of Canada and Makivik Corporation and are still taking place. To my information and belief the Government of the Northwest Territories is also represented in those negotiations.
The proposed park referred to above in paragraph 5 would be located on land claimed by both the Nunavik Inuit and the Inuit of Labrador.
The position of the Government of Canada is that a comprehensive claim agreement provide that nothing in the agreement shall be construed to affect, recognize or provide any rights under section 35 of the Constitution Act, 1982 for any aboriginal peoples other than those who are party to the agreement.
In a further affidavit by Douglas B. Yurick, the Chief, New Park Proposals (Southern Canada) for Parks Canada, dated May 26, 1997, the Government of Canada explained more fully the process for the establishment of a national park.
The establishment of a national park is a five-step process that is guided by the Cabinet-approved Parks Canada's Guiding Principles and Operational Policies, the relevant extracts are attached as Exhibit 1 to this Affidavit:
Step 1 is the identification of up to several representative natural areas that portray the diversity of a subject "natural region" (one of 39 across Canada) and that are in a natural state;
Step 2 is the selection of a preferred park candidate from among these representative natural areas, taking into account a number of natural heritage and other factors;
Step 3 toward park establishment is a detailed assessment of the feasibility of establishing it. Public consultation with the full range of stakeholders in the area of a proposed national park is an important part of such a feasibility study. In situations where Aboriginal comprehensive claims have been accepted for negotiation or where there are existing Aboriginal and treaty rights, it is Parks Canada's practice to seek the involvement of the claimants of such rights, and/or the negotiating claimant group(s), as participants in the park feasibility assessment. In southern Canada, where lands and resources remain under provincial jurisdiction pending any agreement to transfer their administration and control to the Crown in right of Canada for the purpose of establishing a national park, as is the case in the Torngat Mountains, achieving this participation of all claimant Aboriginal groups can be hampered by provincial policy positions.
If the Step 3 assessment demonstrates that a national park is feasible and that there is public support for this, it is often followed by interim protection in the form of a withdrawal of the proposed park lands from availability for any new commercial resource uses. In the case of lands and resources under provincial jurisdiction, such a land withdrawal is enacted by the provincial government, using provincial legal instruments.
Step 4 involves, in the case of lands under provincial jurisdiction, the negotiation of a federal-provincial agreement to establish the park. Both governments seek the approval of their respective Cabinets prior to signing such an agreement. It is a standard feature of such agreements that they incorporate provision for the subsequent Order-in-Council transfer of the administration and control of park lands from the Crown in right of the province to the Crown in right of Canada for purposes of establishing and managing a national park. Only when that transfer has been completed are park lands under the administration and control of the federal government and available for addition, by act of Parliament, to the Schedule of the National Parks Act.
Information provided in paragraphs 30 to 36 of this affidavit outlines the distinctions between national parks and reserves for national parks, the latter being an interim stage in situations where there are unresolved aboriginal claims at the time of completing a federal-provincial park agreement.
Where a comprehensive claim settlement provides for an Impact and Benefit Agreement pursuant to the establishment of a national park, this agreement is negotiated prior to the final park establishment step, described below.
Step 5, which may follow some years after a park agreement is signed, entails adding the lands of the national park to the Schedule of the National Parks Act. Presently, this requires that the Parliament of Canada pass an amendment to the Act.
In the Northern Labrador Mountains Natural Region, steps 1 and 2 toward park establishment were completed by the mid-1970s, with the Torngat Mountains area emerging as the preferred site for a national park. A Step 3 assessment of park feasibility began in the late 1970s but was suspended in 1979.
The Step 3 park feasibility assessment resumed formally on November 23, 1992, when the Minister of State (Environment) for Canada, the Minister of Tourism and Culture for Newfoundland and Labrador, and the President of the Labrador Inuit Association (hereinafter "LIA") announced jointly a study to consider the feasibility of establishing a national park in the Torngat Mountains of northern Labrador, the whole as indicated in a press release issued by the three of them on the same day, a copy of which is attached as Exhibit 2 to this Affidavit.
At this time, Step 3 has also been completed.
This affidavit also explained the distinction between the establishment of a national park and of a reserve for a national park and their impact on Aboriginal land claims.
National Parks are public lands set aside by the Parliament of Canada, under the National Parks Act, that are dedicated to the people of Canada for their benefit, education and enjoyment, subject to the Act and regulations thereunder, and that are to be maintained and made use of so as to leave them unimpaired for the enjoyment of future generations.
Beginning at page 10 of the first public newsletter for the Torngat Mountains national park feasibility study, dated April 1994, Parks Canada has indicated that the feasibility study is being undertaken without prejudice to land claim negotiations, and that if an agreement to establish a national park were to be reached before final land claim settlement, lands would be set aside as a national park reserve, pending claim settlement legislation.
Where, prior to park establishment, proposed national park lands are within the jurisdiction of a province, a federal-provincial park establishment agreement is negotiated, providing for the transfer of administration and control of the park lands to the Crown in right of Canada for national park purposes. Accordingly, there is no federal jurisdictional interest in the lands and resources of such an area until a federal-provincial agreement for their transfer to the Crown in right of Canada has been signed. (A revisionary clause in such agreements stipulates the return of administration and control to the Crown in right of the province if Parliament should at any time determine that the lands are no longer required for national park purposes.)
Since 1974, in several situations where lands deemed appropriate for the establishment of a national park have been overlapped by (an) unsettled Aboriginal land claim(s), Parliament has set the lands aside as a reserve for a national park pending resolution of the land claim(s). Examples include Kluane National Park Reserve in Yukon, Nahanni, Auyuittuq and Ellesmere Island national park reserves in the Northwest Territories, and Gwaii Haanas National Park Reserve in British Columbia.
Such "national park reserves" are managed under the National Parks Act , without prejudice to unresolved land claims. Traditional hunting, fishing and trapping activities of Aboriginal people continue. Standard land reversionary clauses are in place so that lands may be removed from park status if necessary to resolve land claims. Other interim measures may include aboriginal peoples' involvement in park reserve management.
Subsequently, legislation passed by Parliament to confirm a negotiated settlement of the land claim(s) will either incorporate, or provide for the future resolution of, matters such as benefits to aboriginal people from park establishment (generally in the areas of preferential hiring and contracting opportunities), their role in co-operatively managing the park, and the extent and management of wildlife harvesting rights. Where such matters are resolved after the negotiated land claim settlement, they are generally incorporated in a negotiated impact and benefit agreement or some similar document, jointly signed.
The sole extant situation in which lands set aside originally as a national park reserve have subsequently achieved full national park status is the central portion of Kluane National Park Reserve, pursuant to passage by Parliament of the Yukon First Nations Land Claims Settlement Act in 1994. (Confirmation of the final extent of the park reserve as a national park awaits the final resolution of adjoining land claims.) Final boundaries of the Ellesmere Island and Auyuittuq national park reserves were confirmed by the Nunavut Land Claims Agreement Act, 1993. Inuit impact and benefit agreements required by the latter settlement are presently under negotiation, with final confirmation of both national parks to be achieved by amendment of the National Parks Act within one year of completing the Inuit impact and benefit agreements.
V. Position of the Intervener, Province of Newfoundland
The Province of Newfoundland was granted the status of intervenor and the scope of its intervention at the hearing was limited to the issues of fact raised by the parties in their respective individual records.
The Province of Newfoundland takes no position with respect to the conduct of the land claim negotiations between the applicant and respondents. The Province articulated two issues raised in this proceeding which are of particular concern to it:
(a) The assumption implicit in the Applicants' argument that they have existing aboriginal rights in the Province, when such rights have not been determined, and in fact have been rejected by the Province; and
(b) The jurisdiction of this Court to grant relief impacting either directly, or indirectly, on the Province's constitutional authority over its lands and resources.
The Province acknowledges that the applicant claims Aboriginal rights to lands and resources in Labrador. However, the question of whether or not the applicant actually has existing aboriginal rights in Labrador, within the meaning of section 35 of the Constitution Act, 1982, has not been judicially determined.
The Province argues that a "claim" of Aboriginal rights is not itself an "aboriginal right" within the meaning of subsection 35(1). Rather, subsection 35(1) provides constitutional protection for "existing aboriginal and treaty rights".
Where Aboriginal claimant groups and governments successfully conclude a modern land claims agreement, that agreement, once duly ratified, is a "treaty" within the meaning of section 35. Subsection 35(3) is clear in its recognition that governments and Aboriginal peoples may enter negotiations to reach a land claims agreement. What is protected under section 35 is the concluded land claims agreement, that is, the treaty, not the process.
It follows that the Government of Canada's decision to accept the applicant's land claim submission for the purpose of negotiation, pursuant to federal land claims policy, cannot of itself create or entrench Aboriginal or treaty rights within the meaning of subsection 35(1).
While the Government of Canada has accepted the applicant's land claim submission for negotiation, this submission has been rejected by the Province. On October 16, 1995, Mike Buist, Assistant Deputy Minister, Parks and Recreation, confirmed that Province's position in a letter to the applicant, as follows:
In 1994, the provincial assessment of The Inuit of Nunavik Statement of Claim to Labrador determined Makivik's land use and occupancy documentation was insufficient to substantiate an aboriginal land claim to areas of on-shore Labrador by Nunavik Inuit.
The Province claims that to date it has not received any information from the applicant to change the Province's position regarding the applicant's claim to land and resources in Labrador.
The Federal Court's jurisdictional limitations preclude the applicant from embarking upon issues which impact upon the Province.
Both the Comprehensive Land Claims Policy 1987 and the Federal Policy for the Settlement of Native Claims 1993 clearly recognize the inability of the Government of Canada to negotiate matters within the Province's exclusive constitutional jurisdiction. The 1987 Policy states [at page 19]:
The federal government has jurisdiction in relation to Indians and Indian lands. Most other lands and resources, except in the territories, fall under provincial jurisdiction. For this reason, the participation of provincial governments in the negotiation of claims within their jurisdiction will be strongly encouraged and is essential to any negotiation of settlements involving areas of provincial jurisdiction or provincial lands and resources.
In the 1993 Policy's Executive Summary, it is stated to the same effect [at page i]:
In the provinces, most of the lands and resources which are the subject of comprehensive claim negotiations are under provincial jurisdiction.
The applicant entered into the negotiations with the respondents with this knowledge and, through the Negotiation Framework Agreement, agreed that lands and resource issues could not be advanced without the participation of the Province.
Section 4.4 of the Negotiation Framework Agreement provides:
Negotiations related to areas under Newfoundland's jurisdiction will not take place without Newfoundland's concurrence and participation in accordance with an understanding to be reached between Canada and Newfoundland.
The Province owns the lands and natural resources comprising the proposed national park and has exclusive constitutional jurisdiction to deal with these lands and resources.
VI. Position of the Intervener, Labrador Inuit Association
Counsel for the Labrador Inuit Association submitted that the Court must take into account the following realities:
(1) the constitutional context, that is, the division of powers between the federal and provincial governments;
(2) aboriginal claims are not consistent with current provincial borders; and,
(3) there are many cases in Canada of overlapping claims by different aboriginal groups.
More particularly, the Labrador Inuit Association submitted that any order made by this Court must be made in the context of section 18.1 of the Federal Court Act [R.S.C., 1985, c. F-7 (as enacted by S.C. 1990, c. 8, s. 5)], and that any such order should not grant relief in broad terms as sought by the applicant. Further, any such order should not jeopardize the establishment of a national park reserve on the territory.
VII. Obligation to Consult and Negotiate
The jurisprudential development of the past three decades has more clearly defined and given direction to the courts concerning the role of the Crown in protecting the rights of Aboriginal peoples.
In this respect, I would note that the "Crown" refers both to Her Majesty in right of Canada and Her Majesty in right of each of the provinces.
One of the key elements of Aboriginal rights and Aboriginal title, is their existence prior to European contact. For the first time, in R. v. Sparrow,14 the Chief Justice and Mr. Justice La Forest, dealt with the protective and remedial scope of subsection 35(1) of the Constitution Act, 1982,15 and its strength as a promise to the Aboriginal peoples of Canada. They gave directions as to the duties, rights and protection inherent in the treaty process.
Subsection 35(1) has a significant impact when the governments or the courts recognize that the Aboriginal peoples have rights. It represents a specific constitutional basis upon which subsequent negotiations can take place and it requires a just settlement for Aboriginal peoples.
The historical attitudes of the governments prior to the coming into force of subsection 35(1) are as follows.
The Statement of the Government of Canada on Indian Policy, 196916 contained the assertion that:
. . . aboriginal claims to land . . . are so general and undefined that it is not realistic to think of them as specific claims capable of remedy except through a policy and program that will end injustice to the Indians as members of the Canadian community.
A number of judicial decisions of the Supreme Court of Canada prompted a reassessment of the position being taken by the government,17 urging the government towards the recognition of Aboriginal rights. The Honourable Jean Chrétien, then Minister of Indian Affairs and Northern Development, on claims of Indian and Inuit people, made a statement (August 8, 1973) which expressed the government's willingness to negotiate regarding claims of Aboriginal title. The policy reads as follows:
The Government is now ready to negotiate with authorized representatives of these native peoples on the basis that where their traditional interest in the lands concerned can be established, an agreed form of compensation or benefit will be provided to native peoples in return for their interest.
The statement constituted an expression of a policy rather than a legal recognition.18 The federal government took the position that any federal obligation was of a political character.19
In MacMillan Bloedel,20 the Court of Appeal concluded that it is the role of the court to assist and further the negotiating process. Where the federal government has agreed to negotiate claims, the public anticipates that the claims will be resolved by negotiations and by settlement.
The Chief Justice and Mr. Justice La Forest opined that subsection 35(1) of the Constitution Act, 1982 represents the recognition of Aboriginal rights in the treaty process and in the government's obligations within that process. It provides the constitutional basis upon which subsequent negotiations can take place. Therefore, section 35 requires a just settlement for Aboriginal peoples. Also, it affords Aboriginal peoples constitutional protection against provincial legislative power.
Since 1985, the Supreme Court of Canada has developed, both in the wording and in the spirit of the constitutional entrenchment, the implications of section 35. It promised a reassessment of the position taken by the government towards Aboriginal peoples.
In Simon v. The Queen et al.,21 Chief Justice Dickson found that a treaty process was entered into for the mutual benefit of both the Crown and the aboriginal peoples, and should therefore be solemnly respected. Treaties need to be recognized as a source of protection for pre-existing aboriginal rights.
In R. v. Sioui,22 Mr. Justice Lamer [as he then was] concluded that a treaty is characterized by the intention of the parties to create mutually binding solemn obligations.
In Montana Band of Indians v. Canada23 the Court of Appeal opined that the negotiated settlements of Aboriginal claims are a distinct possibility in today's reality.
In R. v. Van Der Peet,24 the Chief Justice determined that the relationship between the Crown and Aboriginal peoples, and the dealings between the parties should be given a generous interpretation in favour of the Aboriginal peoples. Because of the nature of the relationship, the Crown has a fiduciary obligation to Aboriginal peoples where the honour of the Crown is at stake. It is because of this relationship and its implications, subsection 35(1) and other statutory and constitutional provisions protecting the Aboriginal interests, that a generous and liberal interpretation must be applied.
In R. v. Badger,25 Mr. Justice Cory opined that the honour of the Crown is at stake in its dealings with the Indian people; that it is always assumed that the Crown intended to fulfil its promises and that no appearances of sharp dealings will be sanctioned.
The Royal Commission on Aboriginal Peoples26 concluded that the government's task is to determine, define, recognize and affirm whatever Aboriginal rights existed.
The fact that the relationship between the government and Aboriginal peoples is trust-like, rather than adversarial has important implications for the role of government with respect to Aboriginal lands and resources. It requires institutional arrangements to protect them, and it requires government not to rely simply on the `public interest' as justification for limiting the exercise of Aboriginal rights with respect to them. Moreover, it requires government to act in the interests of Aboriginal peoples when negotiating arrangements concerning their lands and resources.
The Commission has urged the courts to design their remedies to facilitate negotiations.27 The Commission further asserts that government and Aboriginal action in the form of nation-to-nation negotiation is central to the constitutional recognition and affirmation of Aboriginal rights under section 35. Therefore, there is a need for remedies to assist the parties where negotiations are not progressing.
In the opinion of the Commission, while the courts may be useful to decide some native issues or to bring pressure on the parties to settle by some other means, it appears that judicial adjudication will not provide all of the answers to the issues surrounding native claims.28
In Union of Nova Scotia Indians v. Canada (Attorney General),29 Mr. Justice MacKay concluded that there are additional considerations in cases involving aboriginal rights. The fiduciary duty is enforced and includes protection against unwarranted effects upon the aboriginal interests.
In Delgamuukw, the Chief Justice opined that the government's responsibility to safeguard the Aboriginal peoples' interest is equally applicable to the rights which relate to the land and the Native interest in the land. The government has vested interests in the security and the welfare of Canada's Aboriginal peoples. Their most central interest is their interest in their lands.
The Chief Justice further determined that the scope of federal jurisdiction and responsibilities, pursuant to subsection 91(24) [of the Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1 [R.S.C., 1985, Appendix II, No. 5]], are tied to section 35 [of the Constitution Act, 1982], as well. The treaty process encompasses the transaction of Aboriginal rights as well as Aboriginal title. Such rights include both rights in relation to the lands, as well as practices, customs and traditions which are not tied to land.
a) General Principles
The following principles can be drawn from the jurisprudence:
(a) It is the role of the court to assist and further the negotiating process. Where the federal government has agreed to negotiate claims, the public anticipates that the claims will be resolved by negotiation and by settlement.
(b) Subsection 35(1) represents the recognition of Aboriginal rights in the treaty process and the government's obligation within that process; it is a specific constitutional basis upon which subsequent negotiations can take place and requires a just settlement for Aboriginal peoples.
(c) A treaty process is entered into for the mutual benefit of both the Crown and the Aboriginal peoples; it should be solemnly respected.
(d) The relationship between the Crown and the Aboriginal peoples, as well as the dealings between the parties should be given a generous interpretation in favour of the Aboriginal peoples.
(e) The honour of the Crown is at stake in its dealings with the Aboriginal people.
(f) There are additional considerations in cases involving Aboriginal rights. The fiduciary duty is enforceable and includes protection against unwarranted effects upon the Aboriginal interests.
(g) The government's responsibility to safeguard the Aboriginal peoples' interests is equally applicable to the rights which relate to the land and the native interest in the land.
(h) The federal jurisdiction and responsibilities pursuant to subsection 91(24) are tied to section 35 as well. The treaty process encompasses the transactions of Aboriginal rights as well as Aboriginal title.
The Royal Commission on Aboriginal Peoples has concluded as follows:
(a) The government's task is to determine, define, recognize and affirm whatever Aboriginal rights existed.
(b) The courts should design their remedies to facilitate negotiations.
b) Analysis
The fiduciary relationship between the Crown and Aboriginal peoples may be satisfied by the involvement of Aboriginal peoples in decisions taken with respect to their lands.
There is always a duty of consultation. Whether the Aboriginal group has been consulted is relevant to determining whether the infringement of Aboriginal rights is justified.
The nature and scope of the duty will vary with the circumstances. Even where the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the Aboriginal peoples whose rights and lands are at issue.
Any negotiations should also include other Aboriginal nations which have a stake in the territory claimed. The Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith.
In this instance, the applicant has signed an agreement-in-principle with the respondents. The respondents assert that they are ready to negotiate and fulfil their duty to conduct negotiations in good faith. However, due to the division of powers between the federal and provincial governments, and the refusal to date of the Government of Newfoundland and Labrador to consult and negotiate with the applicant, the respondents claim that they are without means to rectify the situation. Counsel for the respondents stated in oral argument:
[translation] Look, Your Lordship. Because Newfoundland refuses to have Makivik involved, we're under an obligation to withdraw. We have obligations resulting from another party's refusal. That, Your Lordship, is what doesn't make sense in this case.
We want Makivik to be involved.
We've accepted Makivik's land claim. We've started negotiating. We're still negotiating and will continue to negotiate the claim. Except that when it comes time to talk about provincial jurisdiction, we can't do that because Newfoundland isn't at the table. It's not our fault that Newfoundland isn't at the table.
Now, you ask me, "Why don't you invite Makivik to the table when you're talking with the LIA and Newfoundland about creating a park?" We do invite them, Your Lordship, we want them to be there. We have recognized them, recognized their claims. We would genuinely like them to be there and to have them say, "We, too, want a park, we want a park reserve." We would like them to be full participants.
Except that if we do that, we go together: I go get my friend, Mr. Hutchins; we go to Newfoundland; my friend, Mr. Hutchins, goes into the room and sits down. Then the negotiators from Newfoundland get up and leave. They say, "We have nothing more to say."
What can I do about it, Your Lordship? I can't compel the Newfoundland authorities to remain seated at the table with Makivik. I'm unable to do that, Your Lordship.
With the greatest respect, Your Lordship, I think that even a court would be unable to do that.
A party that doesn't want to negotiate can't be forced to negotiate. That party will have to accept the consequences, if any. When you refuse to negotiate, you take your changes.
Counsel for the respondents added:
[translation] It's not my fault if Newfoundland doesn't want to talk to them. I have no power over them. If it were only up to me, I'd tell them, "Sit down at the table, we're going to talk." I don't have that power. The Minister of Indian Affairs doesn't have that power, Your Lordship, and I think that even the Court doesn't have that power. If Newfoundland doesn't want to negotiate, it doesn't want to negotiate!
. . .
[S]imply as a result of agreeing, we'd have to leave the table if they can't participate. That's the treaty process. If they can't participate, we'd have to withdraw. It's not our fault.30
The Province of Newfoundland has full constitutional authority over the lands in issue. Counsel for the Government of Newfoundland and Labrador asserted in oral argument:
There are matters which the federal government simply cannot negotiate constitutionally. The provinces, of course, including Newfoundland, by virtue of the Constitution, 109 and section 92, have exclusive constitutional jurisdiction over their lands and resources.
It is trite to say that but it needs to be said.
It is easy to lose sight of the fact that unless and until the province of Newfoundland transfers administration and control to the federal government, the lands that are shown on the map that our friend put over here are lands in Labrador which belong to the province of Newfoundland. They are lands and resources of the province unless and until administration and control of those lands is passed to the federal government.31
National parks are public lands set aside by the Parliament of Canada, under the National Parks Act [R.S.C., 1985, c. N-14], that are dedicated to the people of Canada for their benefit, education and enjoyment, subject to the Act and regulations thereunder. They are to be maintained and made use of so as to leave them unimpaired for the enjoyment of future generations.
National park reserves are managed under the National Parks Act, without prejudice to unresolved land claims. Traditional hunting, fishing and trapping activities of Aboriginal people continue. Standard land reversionary clauses are in place so that lands may be removed from park status if necessary to resolve land claims. Other interim measures may include Aboriginal peoples' involvement in park reserve management. Subsequently, legislation passed by Parliament to confirm a negotiated settlement of the land claims will either incorporate, or provide for the future resolution of matters such as benefits to Aboriginal people from park establishment.
Aboriginal title is a right in land and, as such, is more than the right to engage in specific activities which may be themselves Aboriginal rights. The content of Aboriginal title confers the rights to use the land for a variety of activities, not all of which need be aspects of practices, customs and traditions which are integral to the distinctive cultures of Aboriginal societies.
Pursuant to subsection 35(1), Aboriginal rights which existed and were recognized under the common law are elevated to constitutional status. The existence of an Aboriginal right at common law is sufficient, but not necessary, for the recognition and affirmation of that right by subsection 35(1).
Aboriginal rights which are recognized and affirmed by subsection 35(1) fall along a spectrum with respect to their degree of connection with the land. At the one end, are the practices, customs and traditions that are integral to the distinctive Aboriginal culture. Although these activities are not sufficient to support a claim for title to the land, they would receive constitutional protection. In the middle, there are necessary activities which are usually intimately related to a particular piece of land. At the other end of the spectrum, is Aboriginal title which is the right to the land itself.
Since the purpose of subsection 35(1) is to reconcile the prior presence of Aboriginal peoples in North America with the assertion of Crown sovereignty, it is clear that subsection 35(1) must recognize and affirm both aspects of that prior presence"first, the occupation of land, and second, the prior social organization and distinctive cultures of Aboriginal peoples on that land.
The possibility of joint title has been recognized by American courts.32. There may be cases in which two Aboriginal nations lived on a particular piece of land and recognized each other's entitlement to that land but nobody else's.
Where a national park reserve is established, there is a minimal impact on the rights and the use of lands. There is in my view however, a duty to consult in such circumstances. Any consultation must be meaningful.
Where a national park itself is established, the impact will occur on the title, the rights and the use of land. There is, therefore, a duty to consult and negotiate in good faith in such circumstances.
The Agreement-in-Principle between the federal government and the applicant recognizes that a park cannot be established until negotiations are completed.
VIII. Federal Court Act
A question arose concerning the scope of remedies available on an application for judicial review, in particular, whether declaratory relief is available.
Subsection 18(3) [as am. by S.C. 1990, c. 8, s. 4] of the Federal Court Act mandates that the remedies provided for in subsection 18(1) [as am. idem] and subsection 18(2) [as am. idem] may be obtained only on an application for judicial review made under section 18.1 of the Act. Section 18.1 of the Act sets out the standing requirements, the grounds of review and the powers of the Court on an application for judicial review. The threshold question is whether review is being sought against a "federal board, commission or other tribunal" as that expression is defined in subsection 2(1) [as am. idem , s. 1] of the Act. Prior to 1992, judicial review in the Trial Division could, at the option of the applicant, be sought by way of an action commenced by statement of claim or by way of originating motion. However, an application for a declaration was available only by way of an action. Subsection 18.4(2) [as enacted idem, s. 5] empowers the Trial Division to direct that an application for judicial review proceed by way of an action. No such order was sought in this case.
The purpose of section 18 of the Act is to grant exclusive judicial review jurisdiction over federal administrative tribunals to the Federal Court. However, it cannot deprive provincial superior courts of their jurisdiction to determine the constitutional validity and applicability of legislation.
Subsection 18.1(3) describes the relief that the Court may grant on an application for judicial review. It includes the relief which could be granted under paragraph 18(1)(a) of the Act, which includes the grant of declaratory relief. It also preserves the traditionally discretionary nature of judicial review.
IX. Disposition
Canada's proposed Torngat Mountain National Park is being planned within the area which is the subject of negotiations pursuant to the treaty process between the applicant and the Government of Canada. The federal government policy respecting the establishment of national parks purports to operate within the framework of protection for Aboriginal interests as prescribed by the courts and the Constitution. For the reasons given above, I grant the following declaratory relief:
1. The respondents have a duty to consult with the applicant prior to establishing a park reserve in Northern Labrador. The duty to consult includes both the duty to inform and to listen.
2. The respondents have a duty to consult and negotiate in good faith with the applicant its claims to Aboriginal rights in certain parts of Labrador, prior to the establishment of a national park in Northern Labrador.
3. If an agreement between the Government of Canada and the Government of Newfoundland and Labrador to establish such a national park is reached before final land claim settlement, the lands are to be set aside as a national park reserve, pending land claim negotiations.
1 Exhibit 9 to the affidavit of Lorraine Brooke, Application Record, at p. 224.
2 Exhibit 2 to the affidavit of Sam Silverstone on the motion to expedite hearing of the application.
3 Statement by Premier Brian Tobin of Newfoundland concerning acceptance of the basis for an agreement-in-principle in the Labrador Inuit land claim negotiations, Exhibit 3 to the affidavit of Sam Silverstone on the motion to expedite hearing of the application.
4 [1997] 3 S.C.R. 1010, at pp. 1123-1124, per Lamer C.J.
5 Federal Policy for the Settlement of Native Claims, 1993 [at p. 9].
6 MacMillan Bloedel Ltd. v. Mullin; Martin v. R. in Right of B.-C., [1985] 3 W.W.R. 577 (B.C.C.A.), at p. 607; see also: Delgamuukw, supra, note 4.
7 [1990] 1 S.C.R. 1075, at pp. 1105-1106.
8 [1996] 2 S.C.R. 507, at pp. 536-537.
9 Supra, note 4, at pp. 1118-1119.
10 Supra, note 6, at p. 607.
11 [1991] 2 F.C. 30 (C.A.), at pp. 38-39.
12 Canada. Royal Commission on Aboriginal Peoples. Report of the Royal Commission on Aboriginal Peoples. (Ottawa: Minister of Supply and Services Canada, 1996), Vol. 2 "Restructuring the Relationship", Part 2, at pp. 562, 564.
13 Supra, note 7, at p. 1110.
14 Supra, note 7.
15 Being Schedule B to the Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].
16 Canada (Ottawa: Department of Indian Affairs and Northern Development, 1969) [at p. 11].
17 Calder et al. v. Attorney-General of British Columbia (1970), 13 D.L.R. (3d) 64 (B.C. C.A.); affd [1973] S.C.R. 313.
18 Sparrow, supra, note 7, at p. 1105.
19 ;Guérin et al. v. The Queen et al., [1984] 2 S.C.R. 335.
20 Supra, note 6, at p. 607.
21 [1985] 2 S.C.R. 387, at pp. 401-402 and 410.
22 [1990] 1 S.C.R. 1025, at p. 1044.
23 Supra, note 11, at pp. 38-39.
24 Supra, note 8, at p. 536.
25 [1996] 1 S.C.R. 771, at p. 794.
26 Supra, note 12, at p. 566.
27 Ibid., at p. 564.
28 Supra, note 12, at p. 562.
29 [1997] 1 F.C. 325 (T.D.).
30 Transcript, January 7, 1998 at p. 25.
31 Transcript, January 7, 1998, at p. 76.
32 United States v. Santa Fe Pacific R. Co., 314 U.S. 339 (1941).