Janna Promislow & Alain Verrier
Parties resort to the Canadian courts when other efforts to resolve disputes fail. Disputes in the interpretation and implementation of modern treaties are no different, as evident in a growing body of case law. Disputes over the meaning of obligations under treaty provisions are to be expected, and dispute resolution is necessary to maintain strong working treaty relationships that can weather political changes within the parties and changes in the broader socio-economic environment. When disputes arise, treaty partners must consider when to seek resolutions from courts as opposed to the dispute resolution mechanisms negotiated as part of modern treaties. Such decisions depend in part on the availability and nature of dispute resolution under the treaties, and in part on the principles and remedies that judges have applied to similar disputes.
This article provides an overview of recent cases that demonstrate judicial attention to supporting strong treaty relationships through treaty interpretation and remedies. While the issues at stake range from development assessment processes and co-management, to consultation, and to negotiations over financing, all of these cases address disputes about implementation brought by Indigenous parties. Advocates from a number of treaty parties have called for an approach to implementation that understands modern treaties as an expression of an evolving Crown-Indigenous relationship, and the agreements themselves as “living documents” (Canada, Standing Committee on Indigenous and Northern Affairs, 2018, see pp. 18, 43, 47, 56)1. The resolution of treaty disputes in a manner that supports a living treaty approach requires balance between strong remedies to address immediate concerns and an eye on the future, with principles and directions that encourage parties to correct the course of their relationship.
The discussion begins with a review of the interpretive approach established in the Supreme Court cases to date and then considers a few key lower court decisions. The case law reviewed demonstrates the close relationship between issues of interpretation and issues of implementation. While each case requires the court to consider its role in resolving treaty disputes, there is strong judicial recognition of the need to intervene in disputes and re-direct inter-governmental negotiations to support treaty processes.
Principles of interpretation
Interpretive and consultation issues are the only modern treaty matters that have reached the Supreme Court. Two cases in 2010 marked the Court’s first consideration of the interpretation of modern treaties: Quebec (AG) v Moses (2010), addressing the development assessment processes mandated in the text of the James Bay and Northern Quebec Agreement in relation to review of a mining project proposal, and Beckman v Little Salmon/Carmacks First Nation (2010), also about development assessment but this time focussing on the consultation obligations and interpretive principles that apply when the processes committed to in the agreement were not yet implemented. Broadly speaking, two different approaches to treaty interpretation were argued. On the one hand, the Court was asked to uphold the integrity of the written agreement and find resolutions to the issues based on the text of the agreements, an approach which emphasizes respect for the sophistication of the parties who enter into the agreements. On the other hand, the Court was asked to see the agreements within a larger constitutional framework, including the application of the honour of the Crown doctrine to the interpretation of modern treaties, in recognition that treaties are part of a process of reconciliation rather than an achievement of reconciliation in and of themselves.2
While the majority in the 2010 cases took the latter approach, each case also included a minority or dissenting opinion that took the former approach, emphasizing the potential opposition of these principles. The Supreme Court’s unanimous decision in the more recent First Nation of Nacho Nyak Dun v Yukon (2017) (NND) explains that both principles apply to serve a purpose of supporting a healthy relationship between Indigenous Peoples and the Crown through the treaty:
Paying close attention to the terms of a modern treaty means interpreting the provision at issue in light of the treaty text as a whole and the treaty’s objectives. Indeed, a modern treaty will not accomplish its purpose of fostering positive, long-term relationships between Indigenous peoples and the Crown if it is interpreted “in an ungenerous manner or as if it were an everyday commercial contract. Furthermore, while courts must “strive to respect [the] handiwork” of the parties to a modern treaty, this is always “subject to such constitutional limitations as the honour of the Crown” (at para 37, citations omitted).
NND also recognizes the reconciliation processes at stake as requiring a balance between “forbearance” or restraint on the part of courts to allow the parties to find negotiated solutions (at paras 3, 33), and the need for judicial intervention and “adequate scrutiny of Crown conduct to ensure constitutional compliance” in light of the status of the treaties as constitutional documents (at para 34).
Judicial interventions of note
The experience in the lower courts suggests that judges have not been shy to intervene when treaty parties have taken their dispute into that forum. In Corp. Makivik v Québec (Procureur général) (2011), for example, the Quebec Superior Court attended to Indigenous perspectives to understand whether the specified consultation obligations applied to the minister’s decision about caribou hunting and conservation measures under the provision being interpreted (at para 116). This type of “purposive approach” looks at the text but also beyond the text of a provision to ensure that the interpretation arrived at serves the larger context and purpose of the provisions and the treaty. Based on its interpretation, the Superior Court found a breach of the consultation provisions but did not find a breach of the honour of the Crown because the power of decision remained with the Minister regardless of a procedural obligation to consult. The Superior Court declined to give the Cree, Inuit and Naskapi communities the strong remedies they sought to invalidate the regulations that gave effect to the Minister’s decision. The communities successfully appealed the decision to the Quebec Court of Appeal (Corp. Makivik v Québec [Procureur général], ). The Court of Appeal also took a purposive approach to reach a more substantive view of the consultation obligations in the treaty, including that the Minister had to remain open minded through the consultation process (at paras 77-79), to find that the Minister had breached the honour of the Crown and to declare that communities’ treaty rights had been unjustifiably violated.
Treaty financing has been a key issue in the implementation of modern treaties, and indeed is critical to the success of treaties and robust treaty relationships. Related disputes have been brought to the courts by Nunavut Tunngavik Inc. (NTI) and the Teslin Tlingit Council (TTC), and in both cases the courts again demonstrated a willingness to intervene and re-set the inter-governmental relationships on a more principled track.
In Nunavut, the dispute over the failure to implement a monitoring plan for the “health of the ecosystemic and socio-economic environment” of the settlement area under Article 12.7.6 of the Nunavut Agreement was finally settled following the Court of Appeal decision on a summary judgment application in Nunavut Tunngavik Inc v Canada (2014) (NTI). The road to this settlement included 17 attempts by NTI3 to resolve these disagreements through the Nunavut Arbitration Board, established under article 38 of the Agreement. These attempts failed because the Government of Canada did not agree to submit the disputes to arbitration, as was required under then-article 38.2.1. The 2014 Court of Appeal decision found that the Government of Canada had breached its implementation obligations under 12.7.6 and sent the matter of damages resulting from this breach back for a full trial of the issues. The parties were able to reach a settlement before this trial in 2015, including a multi-stage dispute resolution process implemented in 2017 that allows disputes to be sent to arbitration without all parties’ consent (for details, see Settlement Agreement: Moving Forward in Nunavut, signed between Nunavut Tunngavik Incorporated, Government of Nunavut, and the Government of Canada, 5 March 2015).
More recently, Teslin Tlingit Council v Canada (2019) (TTC) marks a victory for the TTC in their longstanding dispute regarding the negotiation of financial transfer agreements under Chapter 16 of their self-government agreement (for more information about financing modern treaty implementation, please see the articles in this issue by Abele, Ahmad, and Grady, and Nicol et al.). The negotiation obligations include reference to the demographics of the TTC (16.3.5), which the Government of Canada continued to measure in relation to status under the Indian Act. The TTC, by contrast, sought to have their demographics understood in relation to the citizenship provisions of the TTC Final Agreement (which are the same as in the Yukon Umbrella Final Agreement [YUFA]). These provisions eliminated the divide between status and non-status Yukon First Nations individuals and created a larger citizenship base, a move that the judge in the case called a “monumental achievement” for ending the “colonial and divisive status versus non-status distinction” (at para 13). This issue had been identified and went unresolved through over 15 years of negotiations and joint implementation review processes. The TTC finally brought the dispute to the courts in 2018, seeking a statement by the courts to clarify the parameters of the Government of Canada’s obligation to negotiate under Chapter 16. The Government of Canada argued that it was satisfying its legal obligation through a collaborative process it established in 2015 (please see Abele, Ahmad, and Grady, this issue). The process is aimed at creating a new fiscal relationship and national policy that will apply to all self-governing Indigenous groups. Not all modern treaty nations are participating in this process, however, and the TTC withdrew from it in 2016. The judge agreed with the TTC that its demographics had to be understood in relation to the definition of citizenship established by the Agreement, even if this principle did not extend to an “express legal obligation to fund every TTC Citizen.” (at para 49). The judge also agreed that the federal collaborative process – a policy choice – could not be “conflated” with or “trump” legal obligations under the Self-Government Agreement (at paras 52, 58) and that a declaration from the court is “appropriate given the years of failing to negotiate the demographic issue” (at para 60).
With regards to the interpretive principles applied, both of these cases demonstrate that strict attention to text is important in animating living treaties and strong treaty relationships. The approach taken by the majority of the Nunavut Court of Appeal was close to treating the Agreement as a “complete code” approach, highlighting the Agreement as one between well-resourced and sophisticated parties and rejecting arguments that fiduciary duties applied to supplement or inform express covenants (at para 59). The Yukon Supreme Court also reached its conclusion in the TTC case by focussing on the text of the Self-Government Agreement but took care to consider the whole context for the Chapter 16 language, including bringing definitions of eligibility and enrollment (from Chapter 3 of the TTC Final Agreement) to bear on the interpretation of Canada’s obligations to negotiate financial transfer agreements in issue. In reaching his conclusion, the judge stated that “it is not honourable to agree to a blood quantum definition of TTC Citizenship and continue to apply funding based on … the Indian Act” (at para 44).
A further issue in TTC was the relationship between treaties protected by section 35 of the Constitution Act, 1982 and the implementation of self-government arrangements that are not constitutionally protected. Although the TTC Final Agreement is protected as a treaty under section 35, section 24.12.1 of this Final Agreement indicates that self-government agreements do not create treaty rights under section 35.4 The judge rejected the Government of Canada’s arguments that section 24.12.1 means that the legal obligation to negotiate the financial transfer agreements does not have constitutional dimensions because this approach “ignores or downplays the constitutional obligation that flows from the eligibility and enrolment provisions of Chapter 3 [of the YUFA]” (at para 44). The honour of the Crown that applies to constitutional questions of interpretation thus flows into the “sub-constitutional” agreements upon which implementation of modern treaties depends.5
This theme of where the constitutional character of treaty principles and remedies begin and end was equally important in Tlicho Government v Canada (Attorney General) (2015). The federal government had introduced devolution legislation that would merge regional land and water boards under the Mackenzie Valley co-management regime into a “superboard” (for further discussion of this case, see David Wright’s article in this issue). The Tłı̨chǫ Government brought the case before this legislation was implemented, arguing that the legislation was unconstitutional because it violated their treaty rights. While the Tłı̨chǫ Agreement contemplates the possibility of federal legislation to restructure the regional land and water boards into a potentially larger co-management board (under Article 22.4.1), the Tłı̨chǫ Government pointed out the Agreement’s mandatory language establishing the regional boards (Article 22.3.2) and challenged the adequacy of federal consultation on the legislation. The Tłı̨chǫ Government asked for an injunction to prevent the legislation from being implemented, arguing that the Tłı̨chǫ would suffer irreparable damage if their regional land and water board was dismantled in favour of the superboard while the full trial of the constitutionality of the legislation was pending. In granting the injunction, the judge demonstrated a keen understanding of the constitutional nature of the treaty relationships and decisions at stake, and a willingness to intervene in the face of government policy intransigence that threatened to derail positive working relationships between the treaty parties. The pursuit of both the superboard and the trial were set aside following the election of a new federal government in 2015.
The cases surveyed here demonstrate that in spite of interpretive principles that prefer negotiated solutions to court interventions in treaty disputes, courts have also understood the need for judicial intervention to support living treaties and strong treaty relationships. The interpretive principles established and reinforced in NND allow for a contextual approach to respond to the particular disputes brought before the courts. Such disputes will variously demand closer attention to the text of particular provisions or broader attention to the purpose of the whole agreement, the interaction of different provisions in the agreement, and the limits on interpretive possibilities imposed by the honour of the Crown.
What is remarkable in this survey is the success of the Indigenous litigants in modern treaty disputes in the years following the 2010 Supreme Court decisions. Each of the four cases noted demonstrates multiple attempts by the Indigenous parties to find resolutions with their government treaty partners, whether through consultations processes (Corp. Makivik v Québec [Procureur général]  and Tłı̨chǫ Government v Canada [Attorney General]) or through dispute resolution processes under the agreements. The multi-year efforts to negotiate solutions are particularly obvious in the implementation disputes litigated in NTI and TTC. Against these efforts, it is less surprising that the courts have intervened to provide principled interpretations of the agreements and strong remedies to redirect inter-governmental relationships. The need and case to intervene may be bolstered even further if courts understood the failure of the dispute resolution mechanisms within the agreements, a failure noted by the Auditor General (Auditor General, 2003 at 8) and highlighted in the Nunavut litigation above. With the amendments to the Nunavut Agreement following the NTI case, there are still only three agreements with provisions that allow matters to go to arbitration without requiring all parties’ consent to get there, in most situations (Government of Canada, 2012, Annex B). With these four cases on the books, the Government of Canada may finally be convinced of the need to let go of outdated and unilateral policy approaches and instead rely on alternative dispute resolutions processes to continue strengthening modern treaty relationships. ◉
Dr. Janna Promislow is Associate Professor at Thompson Rivers University Faculty of Law and Visiting Scholar at Victoria University of Wellington. She is co-leading the law theme of the Modern Treaties Implementation Research Project.
Alain Verrier is a graduating JD student at Thompson Rivers University Faculty of Law.
1. The language of “living treaties” in the context of modern treaties dates to at least 1985 and the publication of Murray Coolican’s task force report on the comprehensive land claims agreement policy: Murray Coolican. (1985). Living Treaties, Lasting Agreements: Report of the Task Force to Review Comprehensive Claims Policy. Ottawa, ON: Department of Indian Affairs and Northern Development.
2. For commentary on Moses v Quebec and Beckman v Little Salmon/Carmacks First Nation, see Julie Jai, “The interpretation of modern treaties and the honour of the crown: Why modern treaties deserve judicial deference” (2009) 26:1 NJCL 25; E Ria Tzimas, “To what end the dialogue?” (2011) 54 SCLR (2d) 493; Dwight Newman, “Contractual and covenantal conceptions of modern treaty interpretation” (2011) 54 SCLR (2d) 475; Thomas Isaac, Aboriginal law, Fourth Edition: Commentary and analysis (Saskatoon: Purich Publishing Ltd., 2012) 170-171.
3. Nunavut Tunngavik Inc. (n.d.). A Summary of the 2015 Settlement Agreement. Retrieved from https://www.tunngavik.com/files/2015/05/2015-Settlement-Agreement.pdf
4. Section 24.12.1 states: “Agreements entered into pursuant to this chapter and any Legislation enacted to implement such agreements shall not be construed to be treaty rights within the meaning of section 35 of the Constitution Act, 1982.”
5. Manitoba Métis Federation v Canada, 2013 SCC 14 indicates that the honour of the Crown gives rise to distinct duties of treaty implementation and also to Crown action “in a way that accomplishes the intended purposes of treaty and statutory grants to Aboriginal peoples” (at para 73). While the application of the honour of the Crown in TTC has an anchor in a treaty provision, it also suggests the importance of further exploration of how the honour of the Crown informs the implementation of sub-constitutional agreements. Such explorations may be particularly relevant in light of federal policy directions that support the evolution of modern treaties towards a series of agreements, some of which will be protected under s. 35 and some of which will not: See Douglas R Eyford, “A New direction: Advancing Aboriginal and Treaty Rights A report ” Report of the Ministerial Special Representative on Renewing the Comprehensive Land Claims Policy (20 February 2015) at 45, online: https://www.rcaanc-cirnac.gc.ca/eng/1426169199009/1529420750631
Auditor General of Canada. (2003), Report of the Auditor General of Canada. Chapter 8 – Indian and Northern Affairs Canada – Transferring federal responsibilities to the North. Retrieved from http://www.oag-bvg.gc.ca/internet/docs/20031108ce.pdf
Canada. Parliament. House of Commons. Standing Committee on Indigenous and Northern Affairs. (2018). Indigenous land rights: Towards respect and implementation, 42nd Parliament, 1st Session. Retrieved from https://www.ourcommons.ca/Content/Committee/421/INAN/Reports/RP9684841/inanrp12/inanrp12-e.pdf
Government of Canada. (2012) Guide for the Management of Dispute Resolution Mechanisms in Modern Treaties. Retrieved from https://www.rcaanc-cirnac.gc.ca/eng/1343831539714/1542729374064
Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53
Corp. Makivik v Québec (Procureur général), 2011 QCCS 5955
Corp. Makivik v Québec (Procureur général), 2014 QCCA 145
First Nation of Nacho Nyak Dun v Yukon, 2017 SCC 58
Nunavut Tunngavik Inc v Canada, 2014 NUCA 2
Quebec (AG) v Moses, 2010 SCC 17
Teslin Tlingit Council v Canada, 2019 YKSC 3
Tlicho Government v Canada (Attorney General), 2015 NWTSC 9