(LTA). We have decided to approach this topic by exploring the continuum of where we

Transcription

1 Tansi! As members of the Saulteau First Nation, you have sought our advice on the current situation facing your people with respect to the Lheidli T enneh Agreement (LTA). We have decided to approach this topic by exploring the continuum of where we were, where we are, and where we are going. We will begin by examining the past and try to understand what has led up to this point in time. Then we will review the B.C. Supreme Court s (B.C.S.C.) decision to refuse relief in the form of an interlocutory injunction and the opportunity to appeal that decision. Finally, we will discuss the permanent issues that might be revealed if this matter continues to trial. Although this letter provides advice should this matter continue to proceed in the court system, we do believe that the best option for the Saulteau people would be a negotiated settlement. Therefore, while we have done our best to provide thorough and comprehensive advice it should be remembered that this advice ought to be taken as a last resort. Generally we believe that any exposure to the path of the court system is a gamble. Nevertheless, let us expand on that path. The History of Treaty 8 Indian lands in what is now considered Treaty 8 territory remained untouched by white settlers until the late 1800s when this area presented many opportunities which 1

2 attracted adventurers and settlement. It was the era of the gold rush and many settlers were heading to the Klondike. However some cut their travels short when news spread that rich gold mines were discovered at the eastern end of Great Slave Lake. 1 Understandably, this invasion of white settlers immensely encroached on the lifestyle, hunting and traditional practices of the Indians occupying the land. This invasion raised concerns by the Indians which were documented by Canadian newspapers. The Ottawa Citizen reported that there were Indians camped at Fort St. John who refused to let miners and police proceed further until a treaty was signed with their people. 2 It took the Treaty Commission two summers to obtain the adhesion of all the Indians concerned in the Treaty 8 area. 3 of money annually for their ceded land. 4 The government agreed to pay the Indians sums The treaty boundary included areas where there was considerable mining activity and covered valleys of the Athabasca and Peace River north of Treaty 6 and the valleys of the Nelson, upper Peace and upper Liard Rivers in British Columbia. Interestingly, it was recommended that the treaty not include the Great Bear Lake along the McKenzie River 5, as this area was of no particular value and at the 1 Rene Fumoleau, As long as this land shall last: A history of Treaty 8 and Treaty 11, (Toronto: McClelland and Stewart Limited, 1975) at Ibid.at Ibid. at Ibid. at Ibid. at 46. 2

3 time had very little impact on white settlers. 6 The Saulteau Indian Band finally became a partner of Treaty 8 in Early Problems with Treaty 8 The problems with Treaty 8 started right from the beginning, as it was well known that the Indians were not at ease with Treaty 8. To combat this unease, the government enlisted the help of Father Lancombe, a man already known and respected by the Indians. Other missionaries eventually joined and confessed in later years that they felt that they were used by the government. These missionaries were disappointed that the Indians were not treated as well as promised. 8 Whether the Indians fully understood the treaty and its consequences is questionable. When the treaty was signed few Indians could read or write English and Crown agents spoke words that were beyond the comprehension of the Indians. Therefore, the written text likely reflects the government s interpretation rather than the Indians desires. 9 Furthermore, evidence suggests that the Indians were in a state of starvation and misery at the time of negotiations and were induced into signing the treaty, 6 Ibid. at Treaty 8 Tribal Association, Chronology, online: < table.html>. 8 Supra note 1 at Monique M. Ross and Cheryl Y. Sharvit, Forest Management in Alberta and Rights to Hunt, Trap and Fish under Treaty 8 (1998) 36(3) Atla. L. Rev. 649 and 651 (QL). 3

4 believing that the Queen will never let your children die from hunger. 10 Moreover, Treaty 8 Indians were left with the understanding that the treaty guaranteed ownership of wildlife, and the rights to hunt, fish and trap as long as the sun shall rise and the rivers shall flow 11 In fact, an affidavit of James K. Cornwall, a promoter of economic and infrastructural development in Western Canada, reinforces this view. Cornwall recalled the Commissioners promising the Indians that their way of living, hunting and trapping would not be interfered with; however, the Indians lacked the capacity to write this into the treaty. 12 The promises of Treaty 8 remained static for the first five years. However, problems arose when Crown agents began cutting back treaty payments from $12 to $5 and claiming the remaining $7 would be contributed to rations. Unfortunately, the Indians never realized the benefits of the remaining money or rations. 13 Treaty payments fell into arrears; though once the problem was evidenced, the Secretary of Indian Affairs paid only two years of arrear payments. Further problems arose when the health of the Indians began to decline. Traditional Indian medicines were not equipped to address small pox and influenza. Although there was no reference to medical assistance in the Treaty, there 10 Ibid. at Ibid. 12 Ibid. at Supra note 1 at

5 was a promise of medicines and care of the Indians. No permanent medical treatments were dispensed to the Indians and many died as a result. 14 In 1910, land surveys began along with restrictions on the movement of the Indians. Blocks of land were reserved for Indians who settled together. This was an extreme restriction on their right to hunt, fish, and trap. 15 Furthermore, game laws in 1920 upset the Indians, resulting in a treaty boycott at Fort Resolution. The Indians depended on the meat and fish they caught to survive and the restrictions caused disastrous results. 16 It is quite clear that the ability to hunt, trap and fish for a living and the protection against the abuses of white hunters and trappers were from the Indians perspective material terms to Treaty Nevertheless the promises of annual money and supplies, freedom to hunt, trap and fish without restrictions slowly diminished over time. Problems with Treaty 8 Today Over the past several years, the Crown has engaged in negotiations to form a treaty with the Lheidli T enneh First Nation. This treaty is currently in the fifth stage of the British Columbia Treaty Commission (BCTC) process. 18 The Lheidli T enneh s claim 14 Ibid. at Ibid. at Ibid. at Supra note 9 at B.C. Treaty Commission, First Nations & Negotiations, online: < lheidli.php>. 5

6 overlaps with the Saulteau First Nation s tract under Treaty 8 by 5,600 square kilometres. 19 In their statement of intent, the Lheidli T enneh identify Saki Kuz (Stony Creek), Nak azdli Nation, Red Bluff Band and McLeod Lake Band as overlapping nations. 20 Saulteau First Nation sought an interlocutory injunction to stop the Lheidli T enneh s treaty from being ratified but this effort was unsuccessful. Furthermore, the Saulteau First Nation sought an order declaring that: the provisions of the Lheidli T enneh Final Agreement that confer wildlife and migratory bird harvesting, plant gathering, and wildlife and parks management rights to the Lheidli T enneh within the territory of Treaty No. 8 are unconstitutional and are no force and effect until there is adequate consultation and accommodation of the existing Treaty No. 8 rights of the plaintiffs by Canada and British Columbia. 21 However the B.C.S.C. refused to grant an interlocutory injunction to the Saulteau, which was the relief they were seeking. 22 Responding to the B.C.S.C. Decision Having remembered the past, it is important to understand the methods available to provide relief from the government s infringement on lands already promised to the Saulteau in Treaty 8. While, the B.C. Supreme Court has already ruled against an interlocutory injunction to prevent the federal and provincial governments from entering into the Lheidli T enneh Agreement, the matter can still be brought before the Court of 19 Saulteau First Nations v. Canada (A.G.), 2007 BCSC 492, [2007] B.C.J. No. 726 at paras Supra note Supra note 19 at para Ibid. at para

7 Appeal. 23 Therefore it is important to better appreciate the remedies that are available and the reasoning of the trial court judgement as well as the other options that exist. It is also vital to remember that regardless of whether the Court of Appeal decides to overturn the decision on the issuance of an interlocutory injunction, in the future the final matter must still continue to trial before the B.C.S.C. In truth, despite the celebration of a handful of major cases, courts typically do not provide relief to Aboriginal groups seeking to protect their treaty rights. As a result, some groups have taken to campaigns of direct action such as blocking access routes and picketing. Following the decision in Daishowa Inc. v. Friends of the Lubicon, a boycott of British Columbia s forest products ensued. 24 The boycott successfully appealed to the corporation s capitalist profit motive. Nevertheless, direct action campaigns have had varying success and have sometimes resulted in violence. Therefore, if negotiations with other Aboriginal communities continue to falter, it is best to continue searching for a solution in court. One yet to be explored option would be to ask the court to appoint a third party to adjudicate the treaty interpretation issues. This idea is based on the notion that courts are inherently biased in disputes between Aboriginals and government. If for example there was a sport in which one team was able to create the rules and choose the referees then it is obvious where a gambling man might place his bets. The same is true here since the 23 Ibid. 24 (1998), 158 D.L.R. (4th) 699, 39 O.R. (3d) 620 (Gen. Div.). 7

8 government is able to select the judges who sit on the bench and apply laws that are adopted from European traditions. The Saulteau can therefore request that the matter be resolved by an international body that does not have an interest in the result. There is in fact a precedent to support this position. In 1704, the Privy Council accepted the recommendation of Attorney General Lord Northey to create a permanent third party court. 25 This order arguably carries the same constitutional weight as the Royal Proclamation of However, this course of action has not been followed by courts and is unlikely to succeed. Therefore, to appeal the B.C.S.C. decision it is necessary to understand its foundation. An injunction is a court order forbidding a certain action until a permanent solution can be reached. 26 An injunction can also be the speediest of remedies. 27 In our view, the request to the court should include a declaration ordering of a survey of the land promised by Treaty 8 in order to determine definitively what territory is constituted under the treaty. The survey ought to be done by an unbiased third party with no interest in the outcome of the survey; a notion that is consistent with the Northey order. We would suggest that an organization such as the United Nations Permanent Forum on Indigenous Issues (UNPFII) be able to select the survey team. The UNPFII is sensitive to the needs of Aboriginal peoples and is also supported by the Government of Canada (a member of 25 Bruce Clark, Justice in Paradise (Montreal and Kingston: McGill Queen s University Press, 1999), B.C. Reg. 221/90, s. 45(1). 27 Robert J. Sharpe, Injunctions and Specific Performance, looseleaf (Aurora, ON: Canada Law Book, 2007) at

9 the United Nations). By determining the specific parameters of the land at issue, we will be in a better position to build a peaceful path. 28 However, we should also consult with the Kaska Dene, as they are currently engaged in a similar dispute. 29 While the legal tests to determine whether an interlocutory injunction should be granted assumes that an injunction will provide temporary relief, the reality especially in the Aboriginal rights context, is quite the opposite. Given the desires of the parties to have the dispute resolved and the time required for a full trial, settlements may well be negotiated in the shadow of the court s pre trial decision. 30 Therefore, there is a heavy risk involved in going to court. In RJR MacDonald 31, the Supreme Court of Canada created a three pronged test for the granting of an injunction: 1. Is there a serious question to be tried? 2. Will the applicant suffer irreparable harm if the injunction is not granted? 3. Does the balance of convenience lie in favour of granting or refusing the injunction? In Wale however, this test was truncated into a two pronged test in British Columbia. 32 First the applicant must demonstrate that a right will be breached. Second, the applicant 28 We should also note that while we are aware of the common law doctrine of adverse possession might be available; it is unlikely to succeed in the case of Aboriginal title. This is because Aboriginal groups tend to lack the element of exclusivity demanded by Canadian courts. See Bruce Ziff, Principles of Property Law, 4 th ed. (Toronto: Thomson Carswell, 2006), See West Moberly First Nations v. British Columbia, [2007] B.C.J. No. 1929, 2007 BCSC 1324; See also Wilson v. British Columbia, [2007] 1 C.N.L.R. 386 (B.C.S.C.). 30 Kent Roach, Constitutional Remedies in Canada, looseleaf (Aurora, ON: Canada Law Book, 2006) at RJR MacDonald Inc. v. Canada (A.G), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385 [RJR MacDonald]. 32 Wale v. British Columbia (A.G.), [1991] 1 S.C.R. 62, 53 B.C.L.R. (2d) 189 [Wale]. 9

10 must show that the balance of convenience favours the granting of an injunction. In essence however, the first prong of the Wale test encompasses the first two prongs of the RJR MacDonald test. However, in his B.C.S.C. decision Wilson J. appears to have erred in his judgment by combining the second and third prongs of the RJR MacDonald test. 33 Despite the rigidity of these tests, the fundamental question is always whether the granting of the injunction is equitable in the circumstances. 34 We have little doubt that this case satisfies the first prong of the RJR MacDonald test. The situation currently facing the Saulteau people with respect to the BCTC negotiations with the Lheileh T enneh is unprecedented. Typically, injunctions are sought to protect treaty rights from government regulations on hunting, trapping or fishing. Other times, injunctions are sought when the government has failed to consult with Aboriginal peoples before licensing the use of treaty land to a third party for commercial purposes. We are not aware of any cases in which an Aboriginal community has sought an injunction to prevent the government from entering into a treaty with another Aboriginal community. Given, the unique character of this situation, the Court of Appeal will likely entertain the application for an injunction, as did the B.C.S.C. 35 The second and third prongs of the test will be more difficult to prove as they were unsuccessful at the trial court level. 36 By failing to discuss the potential 33 Supra note 19 at para Wale at 346, McLachlin J. 35 Supra note 19 at para Ibid. at para

11 consequences of the Lheileh T enneh Agreement, Wilson J. may have made an incorrect finding of fact in addressing the issue of irreparable harm. A Court of Appeal can interfere with a finding of fact if the trial judge has made a palpable and overriding error with respect to them. 37 If the decision of Wilson J. is appealed, this will be a critical argument to submit. Irreparable harm in the legal context means an injury that cannot be compensated in monetary damages. So long as the harm can be described as irreparable, it is not necessary to discuss its magnitude. 38 Generally courts have considered this issue liberally and employed a low standard of proof. In several cases, impairment of treaty rights has been held to constitute irreparable harm as has the threat of serious environmental harm and the loss of property rights. 39 Prior to the entrenchment of Aboriginal rights in Canada s constitution 40 in 1982, courts were generally insensitive to the priorities and aspirations of Aboriginal cultures. 41 However, since Aboriginal rights are now considered constitutional rights, there is no reason to believe that damages in the form of monetary compensation would be the preferred remedy over an interlocutory injunction Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33, at para Tsay Keh Dene Band v. British Columbia (Minister of Environment, Lands & Parks) (1997), 24 C.E.L.R. (N.S.) 66 at 69 (B.C. S.C.). 39 See e.g. Nunavut Tunngavik Inc. v. Canada (A.G.), [2004] 1 W.W.R. 122, [2004] 1 C.N.L.R. 197 (Nunavut C.J.). 40 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.). 1982, c. 11, s See Kanatewat v. James Bay Development Corp.. [1975] C.A. 166, 8 C.N.L.R. 373 at 399 (Que. C.A.). 42 See MacMillan Bloedel Ltd. v. Mullin, [1985] 3 W.W.R. 577, 61 B.C.L.R. 145 (C.A.), leave to appeal to S.C.C. refused 61 N.R. 240n; see also Touchwood File Hills Qu Appelle District Chiefs Council Inc. v. 11

12 Indeed, there are several signs which indicate that the proposed Lheidli T enneh Agreement will cause irreparable harm to the Saulteau; who will essentially lose dominion and control over the disputed lands. The Treaty 8 lands which are infringed upon may very well be appreciated for spiritual or cultural reasons and as such are priceless. As well, the new treaty can potentially throw a wrench at the development and implementation of the Peace Moberly Tract, to which the Saulteau along with the West Moberly are signatories, and as such will have environmental consequences. 43 Wilson J. found arguments on this issue compelling but not dispositive. 44 While the trial court held that this would not lead to irreparable harm, the B.C. Task Force of 28 June 1991 found that where there are overlapping claims a resolution should be in place before the resolution of the treaty. 45 As for the balance of convenience requirement, public interest is a factor to be considered in weighing the competing interests. Typically government actions are deemed to be in the public interest and therefore the Crown is at an advantage in this Davis (1985), 41 Sask. R. 263 (Q.B.) (injunction to protect cultural and spirit values); see also H.S. Fairley, Private Law Remedial Principles and the Charter: Can the Old Dog Wag this New Tail? in Remedies: Issues and Perspectives, Jeffrey Berryman, ed. (Toronto: Carswell, 1991) at Brian L. Scarfe, Socio Economic Impact Assessment for the Peace Moberly Tract: Base Case (26 May 2006), online: < may2006.pdf>; See also Saulteau First Nation, News Release/ Communiqué, Environmental Impact of Oil Drum (8 July 2004), online: Turtle Island < t=1083>. 44 Supra note 19 at B.C. Treaty Commission, Report of the British Columbia Claims Task Force (B.C.: The Commission, 28 June 1991) at 20, online: B.C. Treaty Commission < claims_task_force_report.pdf>. 12

13 regard. 46 In fact, federal and provincial legislation removes the possibility of imposing an injunction against the government unless there is evidence of unlawful conduct or deliberate flouting of the law. 47 As well, when there are overlapping claims to land, the convenience afforded to an Aboriginal community is diminished. 48 Therefore, this branch of the test for relief by injunction will be most difficult to prove in court. Permanent Solutions and Issues for the Trial Regardless of whether or not the request for an injunction is successfully appealed we still ought to consider the more permanent issues since they will inevitably play a role in any future court disputes. Indeed, should the Saulteau choose the path to court, this would be the road of the future. The agreement between the government and the Lheidli T enneh infringes on treaty rights that were conferred upon the Saulteau via Treat 8 and on this premise the final matter must still continue to trial before the B.C.S.C. Although it is a known fact that the Saulteau, the Dene of Dehcho, as well as the Shuswap all believe that negotiations through consensus might present the best method of resolution there is a very real possibility of having to go to trial on the matter if these negotiations do not result in a satisfactory outcome. 46 Paul v. Pacific Salmon Foundation (1988), 24 F.T.R. 304, [1989] 2 C.N.L.R. 90 (T.D.). 47 Crown Liability and Proceedings Act, R.S.C. 1985, c. C 50; Crown Proceedings Act, R.S.B.C. 1979, c. 86, s. 11(2); Aroland First Nation v. Ontario (1996), 27 O.R. (3d) 732 (Gen. Div.); Snuneymuxw v. British Columbia (2004), 26 B.C.L.R. (4th) 360 (B.C.S.C.) (there is jurisdiction to grant injunctions on Constitutional questions). 48 Kitkala Band v. British Columbia (Minister of Forests), [1999] 2 C.N.L.R. 156 (B.C. S.C.). 13

14 The basis of the action at trial rests with the principles that form the very foundation of a treaty right. The issue contended here is that a treaty right, once agreed upon, must be honoured. In Mikisew, Binnie J. qualified the concept of the Crown s honour as a sacred promise that requires treaty rights to be determined, recognized and respected. 49 In Badger the Supreme Court of Canada held that the honour of the Crown has been built upon the foundation that treaty rights are inviolate and must be complied with completely in spirit and in terms. 50 By negotiating an agreement with the Lheidli T enneh, without so much as consulting with the Saulteau and the other Treaty 8 bands that are adversely impacted, the Crown is in effect infringing upon the promises made in Treaty 8. While Wilson J. did concede the fact that the duty to consult had been proven he did not see the agreement with the Lheidli T enneh as an impediment to the livelihood of the Saulteau and the West Moberly Lake First Nations (whose economic investment in the West Moberly Tract is substantial). As Binnie J. held in Mikisew, adverse impact is a matter of degree which sets the parameters of the extent of the Crown s duty to consult. Where the Crown s right to take up lands that have been surrendered through a treaty are exercised, the Crown has an obligation to inform itself of the impact of that exercise on the Aboriginal group and also to communicate its findings to them and deal in good faith, with the intention of substantially addressing that impact. 49 Mikisew, [2005] 3 SCR 388 (SCC)at paras as cited in Henderson, Treaty Rights in the Constitution of Canada (Toronto: Thompson Canada Limited, 2007) at R. v. Badger, [1996] 1 S.C.R. 771, [1996] S.C.J. No. 39 at para

15 Treaty rights are protected by the Canadian constitution. 51 In Sparrow, the courts defined the governments responsibility toward Aboriginal peoples and stated that the fiduciary relationship demanded an affirmation and recognition of Aboriginal rights. 52 In Bear Island Foundation v. Ontario 53 the Ontario Court of Appeal characterized this protection as a shield implying that the courts must protect treaty rights from legislation or regulation that might prove harmful to specific constitutional interests. The modification of a treaty can only be done constitutionally in cases where there is a direct conflict between a constitutional provision and a treaty right. 54 These duties enunciated by the Court provide that Aboriginal treaty rights are not absolute. However, if the government should infringe upon or interfere with an Aboriginal right, it must also bear the burden of justifying the negative impact of that law on Aboriginal rights. 55 To encourage courts to move forward on this issue we must be able to prove that the treaty rights of the Saulteau have been interfered with in a manner that is unjustifiable and irreconcilable with the honour of the Crown. The test for justified infringement was laid out as a two part test in Sparrow: 1. Does the legislation in issue have an effect of interference with an existing Aboriginal right? 2. If so, is the infringement justified? 51 Supra note 40, s. 35(1). 52 R. v. Sparrow, [1990] 1 S.C.R. 1075, 70 D.L.R. (4th) 385 at para Bear Island Foundation v. Ontario (1999), 126 O.A.C. 385 (C.A.) at Supra note Supra note 52 at para

16 The onus of proving that the legislation in question causes an interference or infringement of rights lies upon the group challenging it. In order to determine the answer to the first prong of the Sparrow test, the Court provided the following analysis: 1. Is the limitation reasonable? 2. Does the regulation impose hardship? 3. Does the regulation deny the holders of the right their preferred means of exercising that right? The question of reasonability is meant to address the purpose or the effect of the legislation and whether or not either of them unnecessarily infringes upon Saulteau rights. It is our view that by ignoring the overlap issue and by accepting the Lheidli T enneh land claim in full, the government is infringing upon the rights of the Saulteau as well as other Treaty 8 bands who have an interest in this resource rich area. At present, the Saulteau are working with their neighbours, the West Moberly Lake First Nation in order to develop resources as part of a Sustainable Resource Management Plan. Both, the Saulteau as well as the West Moberly Lake First Nation have exerted efforts toward development of economic activity on the Peace Moberly Tract in a way that protects their culture, values and interests. Upon ratification of the Lheidli T enneh Agreement, the Saulteau and other Treaty 8 groups might lose control over the use and management of the disputed lands. 16

17 The Oil Drum Industries is a company that is owned by the Treaty 8 group. The company facilitates consultation and accommodation processes when developing treaty lands and it also provides employment and revenue to members of Treaty 8. It is the only oil and gas company that is permitted to extract these resources from Treaty 8 lands. Ratification of the Lheidli T enneh Agreement might lead to a change in the operation of the company. The Saulteau have relied on the ownership and revenue from this company and in that sense taking away the economic sustainability of the Saulteau in this case is parallel to the adverse impact of the Crown s actions on integral Aboriginal rights such as hunting and trapping rights. 56 As for the third prong of the Sparrow test, it is our view that the new agreement will deny the Saulteau of their preferred means of exercising their treaty rights. The decision of Wilson J. is based on the false premise that the Saulteau would not lose the opportunity to consult if the Lheidli T enneh were to successfully enter into a treaty with government. However, if the rights proffered by Treaty 8 are so easily set aside then the very legitimacy of the treaty making process might fall into disrepute. Although judicial interference within the negotiations might prove to be undesirable and complicated, inaction will inevitably perpetuate the lack of trust between the Crown and Aboriginal peoples as a whole. 56 Supra note 49 at para

18 If the interference upon the Saulteau s treaty rights is recognized by the court, then the onus would then shift to the Crown to justify the infringement. The Court has set forth the following test to determine if the Crown has met this onus: 1. Is there a valid legislative objective? 2. Has there been as little infringement as possible in order to affect the desired result? 3. In a situation of expropriation, is fair compensation available? 4. Has the Aboriginal group in question been consulted with respect to the measures implemented? The fact that the land promised in the Treaty with the Lheidli T enneh overlaps with the land promised in Treaty 8 is not in dispute. 57 The government s position seems to be that if the land was once shared by the communities then it can be shared again. If the land overlapped historically then it should still overlap and the communities should be left to decide amongst themselves how the land should be used. In fact, The Report of the British Columbia Claims Task Force includes the recommendation that Fist Nations resolve issues related to overlapping traditional territories among themselves. 58 The term valid legislative objective was defined in the R. v. Cornell by the Supreme Court of Canada, which held that: [t]he concept of a valid federal objective clearly goes beyond legislative validity under the division of powers. There must be a federal objective that provides a reasonable justification for the particular inequality in the sense that the inequality is not clearly arbitrary or capricious but finds some legitimate basis in the particular legislative policy Supra note Supra note R. v. Cornell, [1988] 1 S.C.R

19 The valid legislative objective that the government might argue is that the creation of the LTA is of the utmost importance and that details, such as how the land is to be shared, should be worked out later in negotiations. Disputes between Canada s Aboriginal populations and the government waste the country s resources and create ill feelings all around. Canada does not have the ability to resolve land disputes that predate Confederation. Interference by the government might even lead to strains on the relationship between the Aboriginal groups, since the Canadian legal system is a winnertake all system. By forcing Aboriginal communities to negotiate how to share the land all of the parties will save much time and money. The government may also argue that the valid legislative objective is the righting of the historical wrong done to the Lheidli T enneh by not entering into a treaty with them until now. The inequality that the government is trying to rectify is the inequality between the Aboriginal groups created by one group having a treaty while another does not. The creation of the treaty would create rights and increased economic opportunity to the Lheidli T enneh of which the Treaty 8 bands already enjoy. The current land dispute only deals with a small portion of land that has been historically shared between the communities; therefore, they should enter into negotiation to resolve the dispute. 19

20 The inequality that the treaty would help diminish far outweighs any minor land dispute that does not involve the issue of irreparable harm. 60 In other words, there is plenty of time to resolve the land dispute through negotiation therefore the benefits of the treaty, being of the utmost importance to the Province of British Columbia, the Government of Canada, the Lheidli T enneh, and all of the neighbouring Aboriginal groups, outweighs any potential, land dispute between parties who have historically resolved these problems by using their own methods. However, this land dispute did not exist prior to the creation of the Lheidli T enneh Agreement. It was created by the government when they included Treaty 8 land in the LTA without negotiating or consulting with the Treaty 8 bands. These issues have the serious potential to create conflict between the Aboriginal groups involved, creating an inequality, thus negating any potential benefit for anyone except for the federal and provincial governments. The giving away of Saulteau land to resolve old disputes between the Canadian and British Columbia governments and the Lheidli T enneh, without any consultation or negotiation, should only be upheld where there is a clear benefit to all parties. The benefit here is only a possibility. As we have seen, treaties tend to progress over time and it is likely that provisions in the proposed Lheidli T enneh treaty will need to be clarified by the courts down the road on other issues than this one. If this treaty was a guaranteed end to all future potential areas of conflict between the 60 Supra note

21 Lheidli T enneh and government then it may be justified, but it is not. The objective that the government asserts, the treaty with the Lheidli T enneh, is a noble endeavour but the costs outweigh the benefits and are therefore too great to be justified. Has the infringement been as little as possible? If there had been negotiation and consultation between the governments and the Saulteau then they would have been able to argue that the infringement had been as little as possible but that is not the case. The government has no possible way of knowing if the infringement had been as little as possible because they never consulted with the Saulteau, whose treaty rights they are infringing. The government may argue that by allowing the Aboriginal groups to solve their own land disputes in a more traditional way, between themselves, they are not imposing a Canadian legal system on them, and thus, are trying not to infringe on their culture. By becoming a part of the negotiations and forcing a settlement, the government would be infringing on the historical dispute settlement mechanisms of the Lheidli T enneh and the Saulteau. Infringing on land is much less of an infringement than by not allowing them to exercise their culture by resolving this on their own. If the government was correct in asserting that it had the right to withdraw land previously included in Treaty 8, entrenched by the enactment of section 35(1) of the Constitution Act, 1982, then the government also has a duty to compensate for such a loss. No compensation has so far been offered by either the Province of British Columbia, the Government of Canada or by the Lheidli T enneh. In Osoyoos Indian Band v. Oliver, 21

22 while discussing reserve lands, McLachlin C.J. stated that reserve land does not fit neatly within the traditional rationale that underlies the process of compulsory takings in exchange for compensation in the amount of the market value of the land plus expenses. 61 What can be taken from the statement and applied to the facts at hand is that any compensation offered must be of cultural significance. For many communities in Canada, mostly non Aboriginal, this would be in the form of money. In other words, while compensation can take many forms, it must still be present. There has been no compensation in this case; therefore we argue that the government is not justified in expropriating the land. Finally, have the Saulteau people been consulted with respect to the measures implemented? Looking at this issue to determine a different action, Wilson J. stated that the Saulteau had made a strong prima facie case that no consultation occurred between the Saulteau and the governments of British Columbia and Canada. 62 Since there have been no consultations, the governments have thus far failed to fulfill their obligations to the Treaty 8 bands. It is likely that the court will find that the infringement was not justified. However, the determination of this issue will be hard to come by and will likely remain in the judicial system for several years before there is a final outcome. 61 Osoyoos Indian Band v. Oliver (Town), 2001 SCC 85, [2001] 3 S.C.R Supra note

23 Conclusion The path has been long and remains longer still. The history of Treaty 8 is wrought with conflict from its very inception and the current dispute is just one more challenge along that winding road. An interlocutory injunction might still be possible to obtain by appealing to the B.C. Court of Appeal. However, there is a high barrier to meet and even if the appeal is successful we will still have to settle the larger, permanent issues at trial. Considering the cost, the amount of time that would be necessary to complete a trial and the potential to further induce conflict within the Aboriginal community, we believe that it would be worthwhile to use our best efforts to resolve this dispute through negotiations. The government has ripened the situation to pit Indian against Indian. Do not let the government have its way; the traditional path can make all the difference. Mussi! 23