Welcome Home: Aboriginal Rights Law after Desautel

Authors

Kent McNeil, Osgoode Hall Law School of York UniversityFollow
Kerry Wilkins, Faculty of Law, University of Toronto

Document Type

Article

Abstract

In R. v. Desautel, decided 23 April 2021, a majority of the Supreme Court of Canada held, for the first time, that an Indigenous community located in the United States, whose members are neither citizens nor residents of Canada, can have an existing Aboriginal right, protected by section 35 of the Constitution Act, 1982, to hunt in a specified area within Canada. This will be so, the Supreme Court majority held, where the community can show that it descends from (is a successor of) an Indigenous community that was present in what is now Canada at the time of the ancestral community’s first contact with Europeans, and that hunting in the relevant part of Canada was integral to its way of life at that time. Justices Côté and Moldaver dissented. This article analyzes the majority decision, comments on the dissenting judgments, and delves into some unresolved issues that will need attention in light of the decision. They include the status of common law Aboriginal rights, the notion of sovereign incompatibility, the optimal way of litigating claims of Aboriginal right, and the impact of the decision on Aboriginal title claims and the duty to consult.

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Citation Information

McNeil, Kent and Wilkins, Kerry. "Welcome Home: Aboriginal Rights Law after Desautel." Osgoode Hall Law Journal 59.3 (2022) : 553-585.
DOI: https://doi.org/10.60082/2817-5069.3811
https://digitalcommons.osgoode.yorku.ca/ohlj/vol59/iss3/1

References

1. RSBC 1996, c 488, ss 11(1), 47(a).

2. R v DeSautel, 2017 BCPC 84 at para 84, 68, respectively [DeSautel (BCPC)].

3. See especially R v Van der Peet, [1996] 2 SCR 507 at paras 44-46, 55-59 [Van der Peet].

4. Constitution Act, 1982, s 35(1), being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [emphasis added].

5. DeSautel (BCPC), supra note 2 at para 5-6.

6. Ibid at para 128.

7. Ibid at paras 128-35.

8. Ibid at paras 136-67.

9. Ibid at paras 168-85.

10. R v Desautel, 2017 BCSC 2389 [Desautel (BCSC)].

11. R v Desautel, 2019 BCCA 151 [Desautel (BCCA)].

12. R v Desautel, 2021 SCC 17 at para 22 [Desautel].

13. Ibid at para 20.

14. Ibid at para 47. Justice Rowe acknowledged expressly that "this criterion will need to be modified in the case of the Métis" but left that modification for another day (ibid at para 32).

15. Ibid at para 48.

16. See ibid at para 62.

17. Constitution Act, 1982, supra note 4, s 35(1).

18. See Desautel, supra note 12 at para 41, Rowe J; ibid at paras 115, 119, Côté J, dissenting.

19. Supra note 3.

20. Desautel, supra note 12 at para 22.

21. Aboriginal title is based on exclusive occupation of land at the time of Crown assertion of sovereignty. See Delgamuukw v British Columbia, [1997] 3 SCR 1010 [Delgamuukw]. Métis Aboriginal rights, apart from title (the test for which has not been determined by the Court), are based on Métis practices, customs, and traditions at the time of effective European control. See R v Powley, [2003] 2 SCR 207.

22. Van der Peet, supra note 3.

23. Desautel, supra note 12 at para 23.

24. Ibid at para 94.

25. See ibid at paras 115-25. Justice Moldaver, in a brief separate dissent, was prepared to assume, without deciding, that the majority's understanding of "aboriginal peoples of Canada" was sound. He dissented on other grounds, discussed below. See ibid at para 143.

26. Tis was done when neither Britain nor the United States actually occupied or exercised authority over most of the territory crossed by these borderlines. On creation of the border by bilateral international treaties in 1783, 1818, and 1846, see Bruce Hutchison, The Struggle for the Border (Longmans, Green & Co, 1955); Norman L Nicholson, The Boundaries of the Canadian Confederation (Macmillan of Canada, 1979); Donald A Rakestraw, For Honour or Destiny: The Anglo-American Crisis over the Oregon Territory (Peter Lang, 1995).

27. Supra note 3 at paras 44-46.

28. Desautel, supra note 12 at paras 50, 61.

29. See R v Marshall; R v Bernard, 2005 SCC 43 at para 67 [Marshall/Bernard].

30. Desautel, supra note 12 at para 130.

31. Ibid at paras 136-37.

32. Ibid at para 53, citing Kent McNeil, "Continuity of Aboriginal Rights" in Kerry Wilkins, ed, Advancing Aboriginal Claims: Visions/Strategies/Directions (Purich, 2004) 127 at 138. For other authorities relied on by the Court, see Van der Peet, supra note 3 at paras 62-63; R v Gladstone, [1996] 2 SCR 723 at para 28 [Gladstone]; Delgamuukw, supra note 21 at para 152; Tsilhqot'in Nation v British Columbia, 2014 SCC 44 at para 45 [Tsilhqot'in Nation].

33. Desautel, supra note 12 at para 54, citing R v Sappier; R v Gray, 2006 SCC 54 at paras 48-49 [Sappier/Gray]. Cited as well, on the evolution of practices into modern forms, are Van der Peet, supra note 3 at para 64; Mitchell v MNR, 2001 SCC 33 at para 13 [Mitchell].

34. Desautel, supra note 12 at para 63.

35. Ibid. See also R v Marshall, 2003 NSCA 105 at paras 157-81. Cromwell JA (later on the SCC), after detailed discussion of relevant case law, concluded that Aboriginal title, once established at the time of Crown assertion of sovereignty, continues without any need to prove occupation from sovereignty to the present. Tis decision was overturned on appeal without consideration of this issue because the SCC found, on the facts, that Aboriginal title had not been established. See Marshall/Bernard, supra note 29.

36. But see the discriminatory and rightly criticized judgment of the High Court of Australia in Members of the Yorta Yorta Aboriginal Community v Victoria, [2002] HCA 58. Additionally, see Richard Bartlett, "An Obsession with Traditional Laws and Customs Creates Difficulty Establishing Native Title Claims in the South: Yorta Yorta" (2003) 31 UWA L Rev 35; Kirsten Anker, "Law in the Present Tense: Tradition and Cultural Continuity in Members of the Yorta Yorta Aboriginal Community v Victoria" (2004) 28 Melbourne UL Rev 1; Simon Young, The Trouble with Tradition: Native Title and Cultural Change (Federation Press, 2008) at 317-34, 406-14.

37. [1977] 1 All ER 505 at 510 (Ch).

38. [1971] 2 QB 528 at 553 (CA). See also Ward v Ward (1852), 7 Ex 838 at 839; Gotobed v Pridmore (1970), [1971] 115 Sol Jo 78 (CA).

39. [1963] 1 Ch 243 at 255-56 (CA). See also Scales v Key (1840), 11 Ad & E 819 at 825-26 (QB) (where Lord Chief Justice Denman observed that the jury's finding, "that the custom had existed till 1689, was the same in effect as if they had found that it had existed till last week, unless something appeared to shew that it had been legally abolished"). See also Heath v Deane, [1905] 2 Ch 86 at 93-94; New Windsor Corporation v Mellor, [1975] 3 All ER 44 at 50-51 (Lord Denning MR), 53 (Browne LJ).

40. In Re Tucktoo and Kitchooalik (1972), 27 DLR (3d) 225 (NWT TC), af'd (1972), 28 DLR (3d) 483 (NWT CA), Territorial Court Justice Morrow held that the rule that customs can be abolished only by statute applies to Inuit customs relating to adoption, and that the legislation would have to be either repugnant to those customs, or directly or by implication intended to abolish them.

41. Supra note 12 at para 64, citing R v Côté, [1996] 3 SCR 139 at para 53 [Côté].

42. Desautel, supra note 12 at para 64.

43. Côté, supra note 41 at para 53.

44. DeSautel (BCPC), supra note 2 at paras 15-18.

45. SBC 1896, c 22, s 6 ("It shall be unlawful for Indians not resident of this Province to kill game at any time of the year"). See also Desautel, supra note 12 at para 5.

46. Desautel, supra note 12 at para 5.

47. See the quotation in note 159 below, citing ibid at para 33.

48. Where title generally is concerned, it is not lost by leaving land vacant for long periods of time or even indefinitely, provided an adverse possessor does not dispossess the owner, in which case the owner's title is extinguished by statute. At common law, it was even doubtful that title could be abandoned, because in that case an abeyance of seisin (possession entailing a title) would result, which the common law abhorred. As Sir Frederick Pollock and Frederic William Maitland wrote, "It seems very doubtful whether a man could (or can) get rid of a seisin once acquired, except by delivering seisin to some one else." See The History of English Law Before the Time of Edward I, 2nd ed (Cambridge University Press, 1898, reissued 1968) II at 54, n 2. See also Kent McNeil, Common Law Aboriginal Title (Clarendon Press, 1989) 63.

49. See generally Van der Peet, supra note 3 at para 28, Lamer CJ (stating that "[s]ubsequent to s. 35(1) [of the Constitution Act, 1982] aboriginal rights cannot be extinguished and can only be regulated or infringed consistent with the justificatory test laid out by this Court in Sparrow"). This was affirmed by McLachlin CJ in Mitchell, supra note 33 at para 11.

50. See R v Sparrow, [1990] 1 SCR 1075 at 1099 [Sparrow]; Gladstone, supra note 32 at paras 31-38; Delgamuukw, supra note 21 at para 180.

51. Halsbury's Laws of England, vol 12(1), Custom and Usage, "Extinguishment of Custom" at para 646 (4th ed reissue). For detailed discussion, see Kent McNeil, "Extinguishment of Aboriginal Title in Canada: Treaties, Legislation, and Judicial Discretion" (2002) 33 Ottawa L Rev 301.

52. Desautel, supra note 12 at para 34, Rowe J; ibid at para 139, Côté J, dissenting.

53. Supra note 3 at para 28, citing Calder v British Columbia (AG), [1973] SCR 313.

54. Supra note 12 at para 67.

55. Ibid at paras 67-70. See also paras 139-40, Côté J, dissenting.

56. Ibid at para 67.

57. Ibid at para 68. See also ibid at para 34, Rowe J (relying on an article by Mark Walters discussing the continuation of Indigenous laws and rights after British assertion of sovereignty). See Mark Walters, "The 'Golden Tread' of Continuity: Aboriginal Customs at Common Law and Under the Constitution Act, 1982" (1999) 44 McGill LJ 711.

58. These time periods can differ greatly in the same geographical area. For example, French contact with the Mohawks at a location on the St. Lawrence River was held to have occurred in 1603 with the arrival of Champlain, whereas the British acquired sovereignty by the Treaty of Paris, 1763. See R v Adams, [1996] 3 SCR 101 at paras 4, 42-45.

59. Supra note 3 at para 20 [Lamer CJ's underlining, other emphasis added].

60. Ibid at para 44 [emphasis added]. See also ibid paras 55-57. Chief Justice Lamer, in a decision delivered the same day as Van der Peet, used reconciliation as an explanation for why constitutional Aboriginal rights can be infringed when that is justifiable. In Gladstone, supra note 32 at para 73, he noted that: "Aboriginal rights are a necessary part of the reconciliation of aboriginal societies with the broader political community of which they are part; limits placed on those rights are, where the objectives furthered by those limits are of sufficient importance to the broader community as a whole, equally a necessary part of that reconciliation" [emphasis in original]. Note that the Court has acknowledged that the integral test was being applied too rigidly in some cases and should be interpreted more flexibly. Sappier/Gray, supra note 33.

61. Supra note 12 at para 69.

62. Delgamuukw, supra note 21 at para 136.

63. See Kent McNeil & David Yarrow, "Has Constitutional Recognition of Aboriginal Rights Adversely Affected Their Definition?" (2007) 37 SCLR (2d) 177 at 210; Richard Ogden, "'Existing' Aboriginal Rights in Section 35 of the Constitution Act, 1982" (2009) 88 Can Bar Rev 51.

64. Supra note 21 at para 159.

65. See McNeil & Yarrow, supra note 63 at 211. See also Delgamuukw, supra note 21 at para 142 ("under the test for aboriginal title, the requirement that the land be integral to the distinctive culture of the claimants is subsumed by the requirement of occupancy").

66. Supra note 12 at paras 68-70.

67. Recognition of common law Aboriginal rights and title could prove crucial in cases where Indigenous communities seek to prove and enforce such rights against private, non-governmental parties. See e.g. Saik'uz First Nation and Stellat'en First Nation v Rio Tinto Alcan Inc, 2015 BCCA 154 (allowing the claim to proceed even without the Crown as a party), leave to appeal to SCC refused, 36480 (15 October 2015); Tomas and Saik'uz First Nation v Rio Tinto Alcan Inc, 2022 BCSC 15 (but for its valid defence of statutory authority, the private company would be liable to the First Nation in private nuisance for having interfered with its Aboriginal rights); Kwikwetlem First Nation v British Columbia (AG), 2021 BCCA 311 (federal Crown not a necessary party to an Aboriginal title proceeding if no relief sought against federal Crown); Newfoundland and Labrador (AG) v Uashaunnuat (Innu of Uashat and of Mani-Utenam), 2020 SCC 4 (confirming Quebec courts' jurisdiction to hear and determine an Aboriginal title claim against a private company that also involves land in Labrador). The latter proceeding has been terminated by agreement without going to trial. See "Uashat mak Mani-utenam and Matimekush-Lac John Communities Sign Reconciliation and Collaboration Agreement with IOC" (3 December 2020), online (blog): www.riotinto.com/news/releases/2020/Uashat-mak-Mani-utenam-and-Matimekush-Lac-John-communities-sign-reconciliation-and-collaboration-agreement-with-IOC [perma.cc/DF7A-QZCA].

68. Delgamuukw, supra note 21 at para 136, Lamer CJ (saying "none of the decisions of this Court handed down under s. 35(1) in which the existence of an aboriginal right has been demonstrated has relied on the existence of that right at common law," but that was in 1997).

69. Supra note 12 at paras 80-81.

70. Ibid at para 124, citing Mitchell, supra note 33 at paras 159-64. On Indigenous mobility rights more generally, see John Borrows, Freedom and Indigenous Constitutionalism (University of Toronto Press, 2016) at 19-49.

71. Desautel, supra note 12 at para 125. In reality, it is highly unlikely that the drafters and legislators gave any thought to the potential rights of Indigenous peoples whose territories extend into Canada but who were not resident in Canada when section 35(1) was enacted in 1982. See supra note 18 and accompanying text.

72. 2011 BCSC 448 [Campbell].

73. An appeal to the Court of Appeal for British Columbia was dismissed without considering the substantive issues. As the logging had already taken place, the court decided the injunction would serve no purpose. See Campbell v British Columbia (Forest and Range), 2012 BCCA 274.

74. See Kent McNeil, "Aboriginal Rights and Indigenous Governance: Identifying the Holders of Rights and Authority" (2020) 57 Osgoode Hall LJ 127 [McNeil, "Aboriginal Rights and Indigenous Governance"]. https://doi.org/10.60082/2817-5069.3585

75. Supra note 12 at para 48.

76. Ibid at para 49.

77. Supra note 32.

78. See William v British Columbia, 2012 BCCA 285 at paras 132-57. Justice Groberman stated, "I agree with the trial judge's conclusion that the definition of the proper rights holder is a matter to be determined primarily from the viewpoint of the Aboriginal collective itself" (ibid at para 149). On appeal to the SCC, the holding of the trial judge and the BCCA that title is vested in the Tsilhqot'in Nation as a whole was not challenged. See McNeil, "Aboriginal Rights and Indigenous Governance," supra note 74 at 136-41.

79. Supra note 12 at para 86.

80. See DeSautel (BCPC), supra note 2 at paras 59-62. See also Desautel, supra note 12 at para 48.

81. See Delgamuukw, supra note 21 at para 159. The fact that the Lakes Tribe have an Aboriginal right to hunt in the traditional territory of the Sinixt Nation in British Columbia would not prevent members of the Sinixt Nation who do not belong to that tribe from also having hunting rights there. However, because Aboriginal title is exclusive, unlike other Aboriginal rights such as hunting rights, a declaration of title in favour of the Lakes Tribe rather than the Sinixt Nation could exclude members of that nation who do not belong to the Lakes Tribe.

82. Desautel, supra note 12 at para 80. See also Delgamuukw, supra note 21; Tsilhqot'in Nation, supra note 32.

83. Desautel, supra note 12 at para 124.

84. See further discussion infra under the heading "Sovereign Incompatibility."

85. See e.g. Jeremy Webber, "The Public-Law Dimension of Indigenous Property Rights," in Nigel Bankes & Timo Koivurova, eds, The Proposed Nordic Saami Convention: National and International Dimensions of Indigenous Property Rights (Hart, 2013) 79; Kent McNeil, "Indigenous Land Rights and Self-Government: Inseparable Entitlements" in Lisa Ford & Tim Rowse, eds, Between Indigenous and Settler Governance (Routledge, 2013) 135; Brian Slattery, "The Constitutional Dimensions of Aboriginal Title" (2015) 71 SCLR (2d) 45 https://doi.org/10.60082/2563-8505.1305; Sari Graben & Christian Morey, "Aboriginal Title and Controlling Liberalization: Use it Like the Crown" (2019) 52 UBC L Rev 435. For judicial acknowledgement of Indigenous nations' governance authority over their Aboriginal title lands, see Campbell v British Columbia, 2000 BCSC 1123.

86. See Kerry Wilkins, "Negative Capability: Of Provinces and Lands Reserved for the Indians" (2002) 1 Indigenous LJ 57; Kerry Wilkins, "Life Among the Ruins: Section 91(24) After Tsilhqot'in and Grassy Narrows" (2017) 55 Alta L Rev 91 https://doi.org/10.29173/alr791; Kent McNeil, "The Jurisdiction of Inherent Right Aboriginal Governments" (National Centre for First Nations Governance, 2007), online (pdf): wp74066.wpdns.ca/wp-content/uploads/2020/05/kent_mcneil.pdf [perma.cc/2XVH-F63C]. One potential difference is that tribes in the United States have presumptive sovereign immunity from suit. See e.g., Santa Clara Pueblo v Martinez, 436 US 49 at 58-59 (1978). Indigenous communities in Canada, even those with Aboriginal rights or title, do not.

87. The Parliament of Canada acknowledged that "[t]he inherent right of self-government recognized and affirmed by section 35 of the Constitution Act, 1982 includes jurisdiction in relation to child and family services, including legislative authority in relation to those services and authority to administer and enforce laws made under that legislative authority" (An Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c 24, s 18(1)). See Renvoi à la Cour d'appel du Québec relatif à la Loi concernant les enfants, les jeunes et les familles des Premières Nations, des Inuits et des Métis, 2022 QCCA 185 (upholding the constitutional validity of the affirmation of the right of self-government in the Act), on appeal to the SCC, online (English summary): courdappelduquebec.ca/en/judgments/ details/reference-to-the-court-of-appeal-of-quebec-in-relation-with-the-act-respecting-frstnations-inuit [perma.cc/C6SV-S83L]. A fortiori, judicially authenticated Aboriginal rights under section 35(1) should also entail governance authority over those rights. Such rights, after all, belong at first instance to Indigenous collectives, not to individuals. See Sappier/ Gray, supra note 33 at para 26.

88. See James (Sa'ke'j) Youngblood Henderson, Treaty Rights in the Constitution of Canada (Tomson Carswell, 2007); Felix Hoehn, Reconciling Sovereignties: Aboriginal Nations and Canada (University of Saskatchewan Native Law Centre, 2012); Joshua Ben David Nichols, A Reconciliation without Reflection?: An Investigation into the Foundations of Aboriginal Law (University of Toronto Press, 2020).

89. Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 [Haida]; Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69; Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43.

90. Desautel, supra note 12 (Factum of the Appellant, Her Majesty the Queen at para 92), online: www.scc-csc.ca/WebDocuments-DocumentsWeb/38734/FM010_Appellant_Her-Majesty-the-Queen.pdf [perma.cc/PK3R-L6DM] [Appellant's Factum].

91. Ibid at para 93. See also Desautel, supra note 12 (Factum of the Intervener, Attorney General of Ontario at para 31), online: www.scc-csc.ca/WebDocuments-DocumentsWeb/38734/FM070_Intervener_Attorney-General-of-Ontario.pdf [perma.cc/8269-TJ2D] ("the cross-border realities may create uncertainty for governments as to how to fulfill their [consultation] obligations").

92. Supra note 12 at paras 74-75.

93. Ibid at para 76.

94. Haida, supra note 89 at para 39.

95. Supra note 12 at para 73.

96. Ibid at para 76, citing Haida, supra note 89 at para 32.

97. Desautel, supra note 12 at para 76.

98. Ibid.

99. Appellant's Factum, supra note 90 at para 45. See also Mitchell, supra note 33 at para 10.

100. Appellant's Factum, supra note 90 at para 46.

101. Ibid, citing Mitchell, supra note 33 at para 22.

102. Appellant's Factum, supra note 90 at para 48, citing Mitchell, supra note 33 at para 160, Binnie J, concurring (in the result).

103. Supra note 12 at para 65.

104. Ibid at para 124.

105. See Simon v The Queen, [1985] 2 SCR 387 at 403; R v Sundown, [1999] 1 SCR 393 at para 33.

106. Côté, supra note 41 at para 57.

107. For discussion, see Kerry Wilkins, "Whose Claim Is It, Anyway? Lax Kw'alaams Indian Band v. Canada (A.G.), 2011 SCC 56, [2011] 3 SCR 535" (2012) 11 Indigenous LJ 73.

108. Supra note 33 at para 22. The Court considered and rejected Grand Chief Mitchell's argument that he had no need for any such right because section 6 of the Canadian Charter of Rights and Freedoms guaranteed independently his constitutional right, as a citizen of Canada, to enter and leave Canada (ibid).

109. Supra note 12 at para 66 [emphasis in original].

110. See generally Desautel, supra note 12 (Factum of the Attorney General of Canada at paras 50-53), online: www.scc-csc.ca/WebDocuments-DocumentsWeb/38734/FM080_ Intervener_Attorney-General-of-Canada.pdf [perma.cc/28BE-PFVN] [Federal Factum].

111. Ibid at para 51, citing Watt v Liebelt, [1999] 2 FC 455 (CA) at para 15.

112. Federal Factum, supra note 110 at para 54, citing Mitchell, supra note 33 at para 63.

113. Federal Factum, supra note 110 at para 55.

114. Desautel, supra note 12 at para 48. See also Federal Factum, supra note 110 at para 47.

115. Desautel, supra note 12 at para 62.

116. Because Mr. Desautel challenged the constitutional applicability of the offence provisions, section 8 of the Constitutional Question Act, RSBC 1996, c 68, entitled the Attorney General of Canada to receive notice of the constitutional question and to make submissions to the trial court, and to any subsequent BC appellate courts, about it. The Attorney General of Canada chose not to take part in the litigation until it reached the SCC.

117. Desautel, supra note 12 (Factum of the Intervener, Okanagan Nation Alliance at paras 1-7), online: www.scc-csc.ca/WebDocuments-DocumentsWeb/38734/FM120_Intervener_ Okanagan-Nation-Alliance.pdf [perma.cc/YD96-EHED] [ONA Factum].

118. See Desautel, supra note 12 (Factum of the Intervener, Métis Nation British Columbia at paras 7-8), online: www.scc-csc.ca/WebDocuments-DocumentsWeb/38734/ FM230_Intervener_Métis-Nation-British-Columbia.pdf [https://perma. cc/2TQA-LV9V] [MNBC Factum].

119. See ONA Factum, supra note 117 at paras 3, 22-28, 31; MNBC Factum, supra note 118 at paras 10-27.

120. Supra note 12 at paras 32, 47 (deferring consideration of implications for Métis), 49 (declining to "set out criteria for successorship of Aboriginal communities"), 56-60 (rejecting Canada's submission that only those non-resident Indigenous individuals eligible to "shelter" under the section 35 rights of Indigenous communities resident in Canada could benefit from such rights), 80-82 (deferring discussion of Aboriginal title and modern treaty issues).

121. Ibid at para 2.

122. Ibid at para 90 [emphasis in original], citing Marshall/Bernard, supra note 29 at para 142 [emphasis added in Desautel]. For further discussion of the issue, see Shin Imai, "The Adjudication of Historical Evidence: A Comment and an Elaboration on a Proposal by Justice Lebel" (2006) 55 UNBLJ 146.

123. Supra note 50 at 1095 ("trial for a violation of a penal prohibition may not be the most appropriate setting in which to determine the existence of an aboriginal right").

124. [1999] 3 SCR 533 at para 13.

125. 2011 SCC 56 at para 11: "The courts (including this Court) have long urged the negotiation of Aboriginal and treaty claims. If litigation becomes necessary, however, we have also said that such complex issues would be better sorted out in civil actions for declaratory relief rather than within the confines of regulatory proceedings. In a fisheries prosecution, for example, there are no pleadings, no pre-trial discovery, and few of the procedural advantages afforded by the civil rules of practice to facilitate a full hearing of all relevant issues".

126. Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 at para 84.

127. Cheslatta Carrier Nation v British Columbia, 2000 BCCA 539 at para 15 [Cheslatta Carrier], leave to appeal refused [2000] SCCA No 625. See generally ibid at paras 13-19; Kaska Dena Council v British Columbia (AG), 2008 BCCA 455 at paras 11-15. See also Dzawada'enuxw First Nation v. Canada (AG), 2021 FC 939.

128. See Cheslatta Carrier, supra note 127 at para 19 ("the definition of the circumstances in which infringement is justified is an important part of the process of defining the right itself").

129. Supra note 12 at para 87.

130. Ibid, citing Clyde River (Hamlet) v Petroleum Geo-Services Inc, 2017 SCC 40 at para 24.

131. See Haida, supra note 89 at para 25; Manitoba Metis Federation Inc v Canada (AG), 2013 SCC 14 at para 73; Daniels v Canada (Indian Affairs and Northern Development), 2016 SCC 12 at paras 54, 56; Desautel, supra note 12 at paras 88-89. For discussion, see Felix Hoehn, "The Duty to Negotiate and the Ethos of Reconciliation" (2020) 83 Sask L Rev 1.

132. See generally supra note 67.

133. See British Columbia (Minister of Forests) v Okanagan Indian Band, 2003 SCC 71 at para 35 [Okanagan]: "The power to order interim costs is inherent in the nature of the equitable jurisdiction as to costs, in the exercise of which the court may determine at its discretion when and by whom costs are to be paid. Tis broad discretion may be expressly referred to in a statute....Indeed, the power to order interim costs may be specifically stipulated....Even absent explicit statutory authorization, however, the power to award interim costs is implicit in courts' jurisdiction over costs as it is set out in statutes".

134. Ibid at paras 45-47.

135. William v British Columbia, 2013 BCCA 1.

136. 2014 SCC 48 at para 55. https://doi.org/10.1515/9780295806006-004

137. Okanagan, supra note 133 at para 40.

138. Little Sisters Book and Art Emporium v Canada (Commissioner of Customs and Revenue), 2007 SCC 2 at paras 36, 41, 71, 73 [Little Sisters]; Anderson v Alberta, 2022 SCC 6 at paras 23, 37, 38, 50 [Anderson]. https://doi.org/10.1007/978-3-031-28847-0_3

139. Little Sisters, supra note 138 at para 5; Anderson, supra note 138 at paras 21, 23.

140. Little Sisters, supra note 138 at para 40. See also Anderson, supra note 138 at para 50.

141. See Anderson, supra note 138 at paras 47-48.

142. Ibid at paras 4, 43-44.

143. Ibid at paras 4, 40.

144. Ibid at para 46.

145. Ibid at para 5. See also ibid at para 41.

146. Ibid at paras 29, 68.

147. See ibid at para 41: "Detailed proof of an applicant's pressing needs and the extent to which they are unfunded, and estimated litigation costs, may be required to ensure accountability over the expenditure of public funds. At the same time, it must not be prohibitively expensive to establish impecuniosity."

148. See Pasqua First Nation v Canada, 2017 FC 655 at para 29 [Pasqua], citing Little Sisters, supra note 138 at para 59. https://doi.org/10.15581/021.24.5406

149. Okanagan, supra note 133 at para 40.

150. Little Sisters, supra note 138 at para 51.

151. Okanagan, supra note 133 at para 40. See also Anderson, supra note 138 at para 20 (where the Court substitutes the phrase "exceptional importance").

152. See R v Caron, 2011 SCC 5 at para 44 [Caron].

153. Little Sisters, supra note 138 at para 39.

154. See supra notes 134-136 and accompanying text.

155. Okanagan, supra note 133 at para 41. See also Caron, supra note 152 at para 39; Anderson, supra note 138 at paras 19, 24, 26.

156. Little Sisters, supra note 138 at para 38, citing Okanagan, supra note 133 at para 1.

157. Pasqua, supra note 148 at para 28, citing Joseph v Canada, 2008 FC 574 at para 27. See also quotation in text, above at note 155.

158. Not to mention the risk all civil litigants face of having to pay the other parties' costs if they are unsuccessful.

159. See in particular, Desautel, supra note 12 at para 33. There, Justice Rowe, after observing that the "displacement of Aboriginal peoples as a result of colonization is well acknowledged," quoted with approval this passage from the Royal Commission on Aboriginal Peoples: Aboriginal peoples were displaced physically - they were denied access to their traditional territories and in many cases actually forced to move to new locations selected for them by colonial authorities. They were also displaced socially and culturally, subject to intensive missionary activity and the establishment of schools - which undermined their ability to pass on traditional values to their children, imposed male-oriented Victorian values, and attacked traditional activities such as significant dances and other ceremonies. In North America they were also displaced politically, forced by colonial laws to abandon or at least disguise traditional governing structures and processes in favour of colonial-style municipal institutions. Canada, Looking Forward, Looking Back, vol 1 (Ottawa: Canada Communication Group, 1996) at 132. See also Desautel (BCCA), supra note 11 at para 62.