Abstract

Excerpted From: Brenda L Gunn, Remedies for Violations of Indigenous Peoples' Human Rights, 69 University of Toronto Law Journal 150 (November, 2019) (120 Footnotes) (Full Document Requested)

Current Canadian law on remedies for violations of Indigenous peoples' rights is quite limited. It is limited in part because, under Canadian law, the protection of Indigenous rights is limited. The Supreme Court of Canada has limited the scope of Aboriginal and treaty rights under section 35(1) of the Constitution Act, 1982, to those practices, customs, and traditions that are central and integral to the distinctive people that have been continuously exercised since European contact. Not only has the constitutional jurisprudence on Aboriginal and treaty rights in Canada developed an extremely limited interpretation of the scope of protected rights, but the Court has also read in the power of governments to justifiably limit these rights if there is a valid legislative objective and the honour of the Crown is upheld. In Delgamuukw, the Court cast the net wide on the possible justifiable grounds to limit Aboriginal rights, including Aboriginal title:

[T]he range of legislative objectives that can justify the infringement of aboriginal title is fairly broad. Most of these objectives can be traced to the reconciliation of the prior occupation of North America by aboriginal peoples with the assertion of Crown sovereignty, which entails the recognition that 'distinctive aboriginal societies exist within, and are a part of, a broader social, political and economic community.’ In my opinion, the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of aboriginal title.

The ability of governments to justifiably limit these rights means that, even if a claimant successfully proves an interference with a right, it often seems as though the courts defer to the government's arguments on the need to limit the right, undermining the goal of constitutionally entrenching these rights. The final concern is that even where an infringement is found, the remedies provided by the court are not often sufficiently robust. The lack of full and effective remedies is particularly frustrating given the decades that many of these cases often take to make it through the courts. In addition to these limitations on the definition of Aboriginal rights, many cases, especially in the area of consultation and accommodation, often are judicial reviews that, if the Aboriginal claimant is successful, tend to result in sending the decision back to the decision maker to make a new decision.

Delgamuukw demonstrates the challenge of gaining an effective remedy through domestic litigation processes. In Delgamuukw, the first major Supreme Court of Canada decision on Aboriginal title in Canada, the Court refrained from making an actual determination on title or ordering any real remedy. The Court ordered a new trial and encouraged the parties to negotiate the issue rather than litigate. The Court emphasized the need for reconciliation stating: 'Let us face it, we are all here to stay.’ This case demonstrates the hesitance of the Court to actually define the rights and order a remedy. In fact, the frustration over remedies in Delgamuukw includes the way in which the plaintiffs needed to reform their original request to improve their chance of success before the courts:

In the early stages of the trial plaintiffs' counsel indicated that this case, unlike Calder, was 'all or nothing,’ that is the claim was for ownership and jurisdiction, and the plaintiffs were not seeking any lesser relief. This position was wisely moderated later in the trial when Mr. Grant made it clear that the plaintiffs were also seeking a declaration of their aboriginal rights. He said that while ownership and jurisdiction were the plaintiffs' primary claims, they wished the Court to grant them whatever other rights they may be entitled to.

The second case on Aboriginal title in 2014 did lead the Court to grant a declaration of Aboriginal title over the claimed area and to declare that British Columbia had breached its duty to consult the Tsilhqot'in people. This remedy was ordered after a 339-day trial, which started back in 1989 and a trial decision of 1,387 paragraphs. Even when a right is found, remedies are not easy to acquire through domestic litigation. As will be demonstrated below, the simple declaration of title is not only difficult to get through the domestic processes but is not as robust of a remedy as could be gained through the international human rights system.

Remedies for breaches of the duty of consultation and accommodation are similarly weak. The remedies ordered by Canadian courts for a breach of the duty vary with the situation. While possible remedies include injunctive relief, damages, an order to conduct consultation (and specific requirements for such consultation), and a declaration that the Crown has breached its duty, the most common order is a declaration of a failure to conduct consultation and sending the matter back for reconsideration by the decision maker. For example, in Haida Nation, where the Supreme Court of Canada first established a duty to consult and accommodate prior to the final recognition or negotiation of Aboriginal rights, the Court simply ordered

that the government has a legal duty to consult with the Haida people about the harvest of timber from Block 6, including decisions to transfer or replace Tree Farm Licences. Good faith consultation may in turn lead to an obligation to accommodate Haida concerns in the harvesting of timber, although what accommodation if any may be required cannot at this time be ascertained.

The Court did not order any actual accommodation measures but simply indicated that these may result from the consultations. The only outcome was the consultation that needed to occur before the government could issue harvesting licences.

A further challenge for remedies domestically is the hesitance of the Court to issue interlocutory injunctions. In Haida Nation, there was additional discussion regarding the possibility of interlocutory injunctions; however, the Court expressed its preference against ordering them. The Court recognized that 'it is open to plaintiffs like the Haida to seek an interlocutory injunction. However, it does not follow that they are confined to that remedy. If plaintiffs can prove a special obligation giving rise to a duty to consult or accommodate, they are free to pursue these remedies.’ The Court continued to express that 'interlocutory injunctions may offer only partial imperfect relief.’ The Court then highlighted four key shortcomings of interlocutory injunctions: they do not capture the full nature of Crown obligations toward Indigenous peoples; they are all or nothing remedies without the balancing of Aboriginal peoples' rights against Canadian societal interests; the balance of convenience portion of the interlocutory injunction test tends to go against protecting Aboriginal peoples' rights; and, finally, they are only 'a stop-gap remedy pending litigation of the underlying issue.’ The Court then indicated that, given the lengthy process to prove Aboriginal rights and the complex nature of the claims, 'an interlocutory injunction over such a long period of time might work unnecessary prejudice and may diminish incentives on the part of the successful party to compromise.’ The Court's clear preference for pursuing the duty to consult and accommodate versus an interlocutory injunction further limited the remedies available for Aboriginal rights claims. This is especially frustrating given that the judicial review nature of most consultation cases results in the issues returning to the decision maker for reconsideration without any real protection of Aboriginal rights.

In contrast to domestic jurisprudence, international human rights bodies have ordered fairly robust remedies that both vindicate rights and are meant to deter government from engaging in activities that further violate Indigenous peoples' rights. As expressed here, the challenge of gaining effective remedies in Canada is intimately linked to the challenge of poor rights recognition in Canada. In fact, the Inter-American Commission of Human Rights (IACHR) has recognized that there really is no effective mechanism in Canada for the recognition and protection of Aboriginal title. The Hul'qumi'num Treaty Group (HTG) currently have a petition before the IACHR, alleging that Canada violated its rights 'because of the absence of demarcation, established boundaries and recording of title deed to their ancestral lands; the lack of compensation for HTG ancestral lands currently in the hands of private third parties; the granting of licences, permits and concessions within ancestral lands without prior consultation; and the resulting destruction of the environment, the natural resources and of those sites the alleged victims consider sacred.’ In response to the petition, the Canadian government raised a procedural objection to the admissibility of the petition, claiming that the HTG had failed to exhaust domestic remedies before pursuing an international petition and provided a lengthy list of domestic remedies that they should have pursued. In deciding to admit the petition, the IACHR found that the HTG did not have to exhaust domestic remedies because, 'with regard to legal remedies to obtain the declaration and protection of the aboriginal title, the exception to the requirement of exhaustion of domestic remedies applies because the remedy does not constitute an effective protection of the right alleged by the petitioners.’

As indicated above, much of the domestic jurisprudence seems to focus on justifying infringements of Aboriginal and treaty rights, whereas the goal in international human rights law is to uphold the rights. This distinction may be key as to why remedies in international human rights law are more robust than in domestic law. Further, the lack of effective remedies seems to undermine the protection of Aboriginal and treaty rights in Canada. In this way, the issue of right definition and remedy interact and reinforce each other. This article argues that stronger domestic remedies must be ordered in Canada in order to provide stronger recognition and protection of Aboriginal and treaty rights. It argues that Canadian courts should order remedies similar to the reparation orders of the Inter-American Court of Human Rights (IACtHR), that are guided by the principles of restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition. These principles have led the Court to identify necessary measures both to fulfil the protected rights and to protect against future violations.

This article begins with a brief discussion of why Indigenous peoples have turned to international human rights law for recognition and protection of their rights to further highlight the need to bring these international standards into Canadian domestic law. Next, it considers briefly some of the rights that are generally protected in international human rights law, including how the understanding of these rights has evolved over time to demonstrate the similarity with the issues that are raised domestically in Canada to support the argument that Canadian courts should be guided by international reparation orders for violations of Indigenous peoples' rights. It then offers an overview of some of the remedies ordered from various international human rights bodies for violations of Indigenous peoples' rights and the function these orders play in the protection of Indigenous peoples' rights. The article concludes with some recommendations for Canadian courts on how remedies could be ordered to better protect Indigenous peoples' rights and deter government action that violates these rights.

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The above discussion has laid out the various remedies that the IACtHR has ordered for violations of Indigenous peoples' right to their traditional lands. The reparations ordered have required states to demarcate, delimit, and title Indigenous peoples' lands; to change domestic law to ensure that the rights are protected; to prohibit development on the lands until the lands are titled and to rehabilitate lands that have been damaged by development; to ensure human rights training for government personnel; to provide financial compensation, sometimes in the form of community development funds; to publicize all or parts of the Court judgment; and, finally, to ensure that the Court will continue to monitor the implementation of these remedies. Many of these remedies would make significant contributions to the better protection of Aboriginal rights in Canada. A key difference in the reparation orders is the Court's focus on the effective realization of Indigenous peoples' rights. This is accomplished through reparation orders that are guided by the principles of restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition. In Canada, much of the Court's discussion is on whether or not the government can justify the infringement of rights and not about realizing the rights. This has led the Court to issue (and, in fact, most Aboriginal claimants to seek) a simple declaration of a violation, assumingly on the premise that Canada will then take action to address the deficiency in the law or the decision-making process without much direction on what is needed to uphold and protect the rights. There is no remedy issued for the actual violation.

One of the distinctions may be that the IACtHR is often focused on ensuring rights are realized, with the principle of guarantees of non-repetition being a key consideration in the ordering of reparations. This forward-looking approach to rights protection is different than the very case-specific and backward-looking impacts of government actions on Indigenous peoples' rights. With the aim of identifying measures to guarantee non-repetition, the Court is then able to identify creative solutions that speak to the particular domestic context of the rights violation. To accomplish this, the Court has ordered states to take actual measures to provide legal protection of the right. In addition, international human rights law and the reparations of the IACtHR focus on addressing the actual harm experienced by Indigenous peoples when their rights have been violated. Thus, the question is not simply whether the right has been violated but also what measures are necessary to address the impacts of the violation. As Lenzerini argues, 'it is essential to adopt a flexible approach based on a case-by-case basis, in light of what is appropriate to effectively restore the wrongs suffered in the concrete case according to the perception of Indigenous peoples themselves.’ This is achieved in part by requiring states to change domestic law to ensure that rights are protected going forward.

A key development in Canada would be for Canadian courts to ensure that they monitor compliance with the order without requiring the parties to launch another lawsuit. This remedy also then necessitates remedies that move beyond a simple declaration of a law, regulation, or government actor violating a right in order for there to be additional actions with which the court must monitor compliance. This requirement builds on Kent Roach's idea of a 'declaration plus,’ where the court retains jurisdiction and is available and hopefully educated about the dispute should the parties disagree about what the declaration requires and could also impose interim rulings and remedies when necessary. Expanding the existing approach to declarations to include ongoing jurisdiction of the Court would provide greater protection to Indigenous peoples' rights in Canada and promote greater compliance with the remedies ordered.

Métis, Associate Professor, Robson Hall Faculty of Law, University of Manitoba, Winnipeg, MB, Canada