My name is Ghislain Otis. I have been a member of the Quebec Bar since 1984 and I am currently a Full Professor at the Civil Law Section of the University of Ottawa. I am the author of an article published in the Revue générale de droit on the discriminatory extinguishment of the ancestral rights of several Indigenous Peoples of Quebec by a federal law from 1977, which undoubtedly constitutes an unavoidable issue in the current era of reconciliation.
This article was written on the eve of the 45th anniversary of an important event, I believe, in the history of relations between Indigenous Peoples and governments in Quebec, specifically, the enacting of the laws that implemented the James Bay and Northern Quebec Agreement, which was an important event because it was the first modern treaty in Canada between, on the one hand, the Governments of Quebec and Canada, and, on the other hand, two groups of Indigenous Peoples of Quebec: the Cree and the Inuit. The territory covered by the James Bay Agreement is an immense territory, marked by majestic rivers, covered in the south by a very dense and ancient boreal forest and, a little further north, by a region of tundra. This territory represents a little more than half of the total territory of Quebec. The James Bay Agreement was signed by two Indigenous Peoples, the Cree and the Inuit, but what is important to know and what is often forgotten, especially today, 45 years later, is that the territory in question is also a part of the traditional territory of other Indigenous Peoples who live mainly in Quebec, namely the Innu to the north and east, the Atikamekw Nehirowisiwok to the southeast, and the Anishinaabeg to the southwest. These three Indigenous communities have always claimed Indigenous rights to this territory, and yet, while they did not consent to the James Bay Agreement, a clause was inserted into the James Bay Agreement, as well as the federal implementation legislation, purporting to unilaterally extinguish all Indigenous territorial rights to the territories covered by the agreements, including the territorial rights of the non-signatory peoples I mentioned earlier.
A primary motivation for the State in Canada to enter into an agreement, known as a treaty, with an Indigenous People has always been to specify the rights and status of the territory covered by the agreement, and the means always favoured, until recently, has been to ask the signatory peoples to give up all their traditional rights to the territory, what were later called Indigenous rights, in exchange for a whole range of advantages, benefits and rights specifically mentioned and enumerated in a written document, known as a treaty. Thus, the legal security of the two parties was assured: on the one hand, the State, which now knows that the territory is free of ancestral rights and therefore is now in a position to open the territory to exploitation and settlement by non-Indigenous populations; and on the other hand, the Indigenous Peoples themselves, who also have a certain legal security since, obviously, they no longer have to assert, before the courts, the rights that are still ill-defined and very indeterminate. They have a series of rights that are formally and explicitly enumerated and defined in the treaty.
The James Bay Agreement continued the long-standing practice, dating back to the 18th century in Canada, of including an extinguishment clause in the treaty. Except that what is unique about the James Bay Agreement, and what I believe is unprecedented in the history of government-Indigenous relations in Canada, is that it also provides for the extinguishment of the rights of Indigenous Peoples who are not parties to the treaty. So peoples whose rights are claimed to have been extinguished have never actually accepted this extinguishment and have continued to challenge the validity of the federal extinguishment legislation ever since the extinguishment clause for non-signatories was included in federal legislation that was passed and came into force in 1977.
This article is about the legality of extinguishment, not necessarily about its legitimacy. And what does the article say? First, it highlights the fact that in 1977, although the Canadian Charter of Rights and Freedoms was not in force, the 1977 federal legislation was not enacted in a legal vacuum with respect to human rights and freedoms, because in 1970 the first Charter of Rights and Freedoms to be enacted in Canada was in force: the Canadian Bill of Rights, which was adopted in 1960. Now, this Charter of Rights does apply to the allegedly extinguishing legislation passed by the Parliament of Canada in 1977, and this article first makes the contribution of mobilizing a quasi-constitutional Charter of Rights that is now largely forgotten, very much neglected by jurists, and yet still has the capability of granting real protection in several types of circumstances. And the case of the supposed extinguishment of the rights of the Indigenous Peoples of Quebec by a 1977 law is a textbook case where it is relevant, even necessary, for the jurist to mobilize this Charter of Rights and Freedoms.
Contrary to what many people think, the rights of Indigenous Peoples are not completely foreign to the charters of rights and freedoms. It is sometimes thought that, by nature, the rights of Indigenous Peoples are different from human rights and freedoms, since they are collective rights, group rights reserved for communities because of their ethnocultural identity. So this article highlights the fact that although these rights are group rights, they include subsidiary individual rights that are likely to be protected by the quasi-constitutional instruments relating to rights and freedoms. So this idea that we can, through a constitutional charter of rights and freedoms, protect the rights of Indigenous individuals on their traditional territory is also, I think, an interesting contribution of this study.
Obviously, the crux of the problem, the crux of the legal issue here, is to determine the extent to which there is indeed an incompatibility between the Canadian Bill of Rights and the allegedly rights-extinguishing federal legislation. The article attempts to answer this question by constructing a legal argument that rigorously obeys the canons of positivist legal analysis and that consists of demonstrating that the Canadian Bill of Rights and Freedoms, on the one hand, prohibits discrimination with respect to the accommodation or restriction of fundamental human rights, including the right to respect for one’s property. So from this principle of equality or non-discrimination in the enjoyment of property, it can be established that the federal law infringes, at first glance quite clearly, on this principle of non-discrimination in the enjoyment of property, since it purports to extinguish, to eliminate the rights to land and resources held by non-signatory Indigenous Peoples, but at the same time, it guarantees in a very explicit and clear manner all the property and all the property rights of third parties that hold rights other than Indigenous rights. Clearly, this is a prejudicial differential treatment of Indigenous People because of the Indigenous nature of their rights.
Having demonstrated this fairly clear discriminatory character of the legislation, the question remained as to whether this discrimination is nonetheless acceptable, or nonetheless valid, because it would ultimately be justifiable in a free and democratic society, or it would ultimately be a necessary evil to achieving a very important governmental objective. This discrimination is not justifiable. It is not justifiable, first, because it pursues an objective which is not in itself of the kind that justifies discrimination in a free and democratic society such as Canada; and second, because it is accepted by the Supreme Court that a law whose very purpose is contrary to law, that is to say, whose raison d’être is in fact antagonistic to the protection of rights, can never be justified. We argue in this article that the purpose of the law was precisely to distinguish between the rights of signatories and non-signatories; to give quite deliberate priority to the rights of certain groups at the expense of the rights of non-signatory peoples. So the intention, in our view, underlying the legislation is itself inconsistent with the Declaration – not only the intention, but also the means that are taken, since in our view it was possible to achieve the governmental objective, which we are told was to secure the title to the territory for third parties, for the signatories and, above all, for the Government of Quebec. Well, there are several reasons to think that this objective of legal security could be achieved, to a very large extent, without purely and simply, and irreversibly, extinguishing the rights of non-signatory peoples without their consent.
This is a law that is inconsistent with a quasi-constitutional charter of rights. What is the consequence? The consequence is that a quasi-constitutional statute is superior to other statutes, and that in the event of a conflict between the quasi-constitutional statute and another statute, the former will prevail, with the consequence that the provisions of the statute that are inconsistent with the Canadian Declaration are inoperative, that is, they are of no effect. They can no longer be applied or invoked against non-signatory peoples. What this means, inoperability, is that the law becomes void of legal effect. The consequence is therefore that the rights of third parties on the territory have survived and will henceforth have to be harmonized and reconciled with the rights of the peoples who have signed the James Bay Agreement, since it is very important to remember, also from this section, that the fact that the rights of third parties are still enforceable does not obviously prevent the James Bay Agreement from existing. It does not prevent the Crees and the Inuit from enjoying the rights provided for in this Agreement. The persistence of the James Bay Agreement can very well be reconciled with the persistence of the rights of the non-signatories, the proof being that all modern treaties subsequent to the Agreement have done precisely that, i.e. they have specified that the treaty does not abrogate or affect the rights of any other Indigenous People with respect to the territory covered by the treaty.
Why are we talking about this today? Because, first of all, it is a subject that is still relevant today, it is an injustice, in a way, from the point of view of Indigenous People; it is a wound that remains just as alive today as it was 45 years ago; but also because we currently have a Canadian government that is putting forward a policy of reconciliation, that is putting forward a very voluntary policy of recognizing the rights of Indigenous Peoples. So, how can we reconcile in 2021 the alleged unilateral extinguishment by the federal parliament of the potential rights of several Indigenous Peoples in Quebec and the idea of reconciliation and recognition of rights?