What Has the Supreme Court Done?

John Howard, QC (footnote 1)

[Editor's note: In December, the Supreme Court of Canada brought down a decision in the BC aboriginal lands case known as Delgamuukw. The decision could have extremely far-reaching and serious consequences for BC's economy.]

Has the Supreme Court in its December Delgamuukw decision expedited or rendered more straightforward settlement of the long-festering aboriginal claims issue? In fact, the opposite is the case: it has simply increased the length of the red tape involved.

Instead of expediting a settlement, the Supreme Court has continued a trend begun by the BC Court of Appeal in Delga-muukw, and set up a model that requires that multiple issues be determined in accordance with fuzzy, abstract standards on a case-by-case basis. This model creates a powerful incentive for aboriginal groups to erect legal and even physical blockades to discourage any economic activ-ity as a bargaining lever in the bargaining process. That means endless actions, injunction applications, and finally—assuming the infringement is justified—endless valuation hearings (which are notoriously complicated and unpredictable) to determine the damage the infringement caused the aboriginal title holder.

The remarkable thing is that the entire Delgamuukw proceeding, although allegedly decided on a "contextual" basis—that is, the Supreme Court took into account social and cultural factors as well as legal precedent—ignores the following:

• transfer payments made to aboriginals under the Indian Act (in excess of $6 billion each year)
• 
   
• transfer payments made to aboriginals under the Income Tax Act
• 
   
• the BC Federal Memorandum of Agreement of June 21, 1993, stipulating the share of costs of BC settlements to be borne by each government
• 
   
• the establishment of the BC Treaty Commission to orchestrate the claims process, and above all
• 
   
• the numerous sets of negotiations in progress, particularly the possible adverse impact of Delgamuukw on those negotiations

The Delgamuukw case may have been considered on a contextual basis, but unfortunately, even a broad context for a judicial decision is narrow indeed compared to the broad policy context required to make a sound policy decision about massive transfer payments.

As Chayes pointed out long ago, courts by their very nature are inherently limited in their ability to analyze policy. (footnote 2) Court cases are adversarial with the conflicting issues of the parties defined very narrowly. Such an approach is almost the antithesis of what is required for policy development, even where the issues involve only the interpretation of statutory standards. In brief, what is lacking is truly representative parties; (footnote 3) There must be a better solution than litigation.

Policy Spectrum

If there is any policy that has reached the nadir of what Theodore Lowi characterizes as interest-group liberalism (the discredited idea that competing interest groups will have the same efficient result as competing individuals), it is the present aboriginal policy of negotiating a "deal" with each aboriginal claimant. The current process involves public servants, who owe a fiduciary duty to each aboriginal claimant, ostensibly bargaining at arm's length, unconfined by any statutory standards or express policy, negotiating a "just" settlement with virtually no oversight by any legislature. The transaction costs of obtaining a settlement reportedly amount to 25 percent of a total claim. Given the predilection of contemporary politicians for interest-group liberal solutions, it is not a surprising policy. But the following list, which is anything but exhaustive, shows there are alternatives to the current negotiations that would enable aboriginal people to help themselves. Assume, in each case, a BC aboriginal population of 100,000 and a maximum settlement of $60,000 (1993 dollars) per aboriginal person, that is, a total settlement cost of $6 billion. Here are some alternatives to the present situation:

Analyze the Northern Canada, Yukon, and Alaska settlements to determine a per capita benchmark for payment of the total settlement amount, leaving to negotiations the problem of determining how much land is to be transferred instead of cash, all subject to the incentives set out in the BC Federal Memorandum of Agreement dated June 21, 1993

Within the above limits, implement a guaranteed annual income/negative income tax (GAI/NIT) model, which in effect would provide a relatively long-term annuity to aboriginal households that they could invest in local community infrastructure, household improvements, or health or education, depending on a family's needs. This would apply to both on- and off-reserve aboriginals, thus removing the current incentive so "ghettoize" aboriginal families. In addition, it would give individuals control over the cash resources and therefore power to determine what kind of self-government they want

Transfer the funds as block grants to existing aboriginal councils and bands and perhaps in part to households. Minimize central government controls other than audits to discourage fraud, thus backing away from bureaucratic paternalism, and thereby forcing aboriginals to assume the risks of responsibility, accountability, even failure

Abandon the present "negotiation" model, declare that a legislated infringement of aboriginal title is justified, thus giving rise concurrently to hundreds of aboriginal cases in which the courts must determine the scope of the alleged aboriginal title and must work out the damages owed to aboriginal claimants. This last model is suggested tongue-in-cheek, for it would probably overwhelm the court system and throw the BC economy into chaos. As Chief Justice Lamer states in Delga-muukw, "... it is best that we leave those questions to another day." Indeed it is, for the path along which Delgamuukw is leading us is probably tortuous, endless, and downhill all the way.

The Supreme Court of Canada's reasons in the Delgamuukw decision reflect a volatile mix of rehashed Marxist legal theory and judicial activism reflected by "contextual" analyses interpreting "rights" to solve the aboriginal claims issue seemingly in a vacuum, ignoring the ongoing programs to deal with the claims issues. Chief Justice Lamer and his colleagues may have tripped the balance, but I doubt it. Certainly they have built up aboriginal expectations that are not realistic. No society—and especially one now paying out some $1.5 billion a year in transfer payments to BC aboriginals—will allow itself to be tied up in knots by land claims.

But Delgamuukw may also present an opportunity. The model it implies is so bad that any other model looks good. The central problem is that the premise of the present negotiating model is largely a rerun of US policy derived from the US Indian Reorganization Act of 1934, which advocated greater self-determination, communal governance, and increased transfer payments —coupled, of course, with increased, suffocating bureaucratic control. In 1967 the American Congress amended these policies to increase resource transfers to aboriginals and to decrease bureaucratic intrusions in the name of self-determination. They thus supplanted government paternalism by promoting partnership and self-help. Even so, bureaucratic constraints continue and the transfer of effective decision making power to aboriginal communities "... has come to little."

Perhaps we in Canada should re-evaluate the implications of the neo-Marxist philosophy reflected in the current negotiations process and even in Delgamuukw. No one has succeeded in running a communal economy on the basis of transfer payments from government. It is almost disingenuous to suggest we can do so in respect of aboriginal communities. However, as Hegel states, "What experience and history teach is this—that people and governments never have learned anything from history, or acted on principles deduced from it."

Equally disconcerting are the Supreme Court reasons in Delgamuukw. They reach out far beyond even conventional rights analysis, bringing into question the legitimacy of such decision making. It is a serious question, for the court, having literally charged into politics in the sense of declaring policy rather than interpreting law, exposes itself to unconstrained political criticism.

Footnotes

1. This is an excerpt from "Delgamuukw: The Problem of Legitimacy," a paper prepared for presentation at the Pacific Business and Law Institute conference on the Supreme Court of Canada's Delgamuukw decision held in Vancouver on February 12 and 13, 1998.  Back to top
2. Abram Chayes, "The Role of the Judge in Public Law Litigation," 89 Harvard Law Review 1281 (1976).   Back to paragraph 5
3. The Supreme Court acknowledged that it did not have even the desirable aboriginal parties before it: Delgamuukw, par. 185. It did not even consider the effects on third parties directly and adversely affected by land transfer decisions nor what it would cost to implement its decision.   Back to paragraph 5

Navigate

• Back to March '98 Fraser Forum Contents
• Back to Fraser Institute Homepage

info@fraserinstitute.ca You can contact us at the above email address for any comments or information requests. Please report any dead links or technical problems.

If you know someone who would be interested in this web page, please enter their email address below, and we will forward this URL to them: Email Address:

Last Modified: Wednesday, October 20, 1999.