Guest blogger Ara Basmadjian on Aboriginal rights

Thursday, December 22, 2011

“Lax Kw’alaams Indian Band v. Canada (Attorney General): Supreme Court of Canada Denies Aboriginal Right to Commercial Fishing”

Although section 35(1) of the Constitution Act, 1982 “recognized and affirmed” aboriginal and treaty rights in Canada, the Supreme Court has not been particularly forthcoming in understanding the unique challenges faced by First Nations litigants and the lawyers who represent them.[1] In Lax Kw’alaams Indian Band v. Canada (Attorney General)[2] (“Lax Kw’alaams Indian Band”), the high court unanimously dismissed the Lax Kw’alaams’ claim of an aboriginal right to harvest and sell “all species of fish” on a commercial basis within their ancestral territories along the coast of British Columbia.[3] The Supreme Court’s recent decision underscores the highly factual character of aboriginal rights claims and provides some instruction on the modern expression of historical practices.

Prior to contact with Europeans around 1793, the Lax Kw’alaams First Nation harvested salmon, halibut, herring spawn, seaweed, shellfish, and eulachon in the northwest waters of what is now coastal British Columbia. The eulachon, or candlefish, were central to the Lax Kw’alaams’ life-way and served as the basis of their subsistence economy. The fish were harvested in late winter and often boiled into grease that could be used to preserve perishable foodstuffs. Eulachon grease was also bartered among indigenous peoples for other goods and resources.[4] In the late nineteenth century, the British Crown provided the Lax Kw’alaams with reserves and fishing sites within their ancestral grounds. In 2002, the Lax Kw’alaams sought judicial recognition of an aboriginal right to preferential access to the commercial fishery in their homelands.[5]

At trial, the court was not persuaded that the Lax Kw’alaams had engaged in any significant trade in natural resources which constituted an integral aspect of their distinctive culture. The importance of eulachon grease to the Lax Kw’alaams’ civilization did not provide a sound historical basis for a modern right to commercial resources.[6] The British Columbia Court of Appeal confirmed the trial judge’s decision that trading in fish resources was largely limited to a particular species and did not evolve into a general right to commercial fishing.[7]

The Lax Kw’alaams First Nation advanced four arguments before the Supreme Court of Canada: (1) the lower courts effectively reversed the proper inquiry by characterizing the aboriginal rights claim before examining the relevant evidence and historical practices; (2) trade in eulachon grease should not be considered an isolated practice but rather part of the Lax Kw’alaams’ broader culture; (3) in the event that the Lax Kw’alaams fail to establish a commercial fishing right, then the court should consider fishing rights on a more modest scale; and (4) the Honour of the Crown necessarily engaged preferential access to the fishery during the allotment of reserves and fishing sites in the 1880s.[8]

Justice Binnie, for the Court, rejected the Lax Kw’alaams’ characterization of the approach to establishing an aboriginal right. The statement of claim is the logical starting point and contextualizes the evidence that is to follow. The Lax Kw’alaams, according to Justice Binnie, were asking for a “commission of inquiry,” which is not appropriate in civil litigation.[9] As Justice Binnie suggests, “[t]he trial of an action should not resemble a voyage on the Flying Dutchman with a crew condemned to roam the seas interminably with no set destination and no end in sight.”[10] The Lax Kw’alaams’ approach to aboriginal rights was also contrary to established authority in the Supreme Court’s seminal decision in R. v. Van der Peet.[11] Furthermore, the rules of civil procedure stipulate that pleadings, at the outset, provide the opposing party with fair notice of the parameters of the case.[12] Yet, Justice Binnie’s reasons tend to obscure the notion that aboriginal rights claims serve a measure of reconciliation between the Crown and First Nations people. Perhaps the adversarial nature of civil litigation is inappropriate in the context of aboriginal rights claims and should be tempered in order to promote collaboration in which the courts play a more inquisitive role.

Aboriginal rights claims are based primarily on the facts. The courts have stablished that aboriginal rights are not frozen in time but are permitted to evolve in accordance with both “quantitative and qualitative” limits.[13] Indeed, the modern expression of an aboriginal right must contain sufficient continuity with a distinctive pre-contact practice. Justice Binnie placed great emphasis on the trial judge’s findings of fact. Although the Lax Kw’alaams’ harvest and trade of eulachon grease was “an integral part of their distinctive culture,” their ancestral life-ways did not include significant trade in other fish products generally.[14] In short, the right to a commercial fishery would constitute a qualitatively different activity from the Lax Kw’alaams’ “species specific” practice.[15] Moreover, the right to harvest fish on a commercial scale would be quantitatively disproportionate to the Lax Kw’alaams’ activity.[16]

If the courts denied their claim to a commercial right, the Lax Kw’alaams argued that the judges should have engaged in a more searching inquiry of “lesser and included rights.”[17] This claim was not presented in a clear or coherent manner. Justice Binnie supported the trial judge’s conclusion that rejection of the original claim ultimately amounted to rejection of the lesser claim.[18] Indeed, both arguments lacked the requisite evidence.

Finally, Justice Binnie dismissed the notion that the Honour of the Crown created an obligation to provide the Lax Kw’alaams with a commercial fishing license. Once again, Justice Binnie based his decision largely on the trial judge’s interpretation of the facts. There was simply no evidence to support the claim that the Crown intended to grant the Lax Kw’alaams preferential access to commercial resources.

The Supreme Court’s decision in Lax Kw’alaams Indian Band provides much-needed clarification on what is required to advance an aboriginal right. The case is significant because it serves as a warning against litigants who try to extrapolate broad modern rights from comparatively narrow ancestral practices. The decision also illustrates the difficulty of claiming an aboriginal right based on limited historical evidence. This challenge is compounded by the adversarial character of civil litigation. Perhaps aboriginal claimants would be better served by a more collaborative forum.

Ara Basmadjian is a third-year J.D. candidate at the University of Ottawa.

[1] Constitution Act, 1982, s 35(1), being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
[2] Lax Kw’alaams Indian Band v Canada (Attorney General), 2011 SCC 56 [Lax Kw’alaams Indian Band].
[3] Ibid at para 1.
[4] Ibid at para 15-17.
[5] Ibid at para 18.
[6] Ibid at para 28.
[7] Ibid at para 32.
[8] Ibid at para 37.
[9] Ibid at para 40.
[10] Ibid at para 41.
[11] Ibid at para 42. See R v Van der Peet, [1996] 2 SCR 507.
[12] Lax Kw’alaams Indian Band, supra note 1 at 43.
[13] Ibid at para 51.
[14] Ibid at para 52-53.
[15] Ibid at para 56.
[16] Ibid at para 58.
[17] Ibid at para 60.
[18] Ibid at para 62.

The Guardian's Top Women of the Year 2011

Friday, December 16, 2011

SARAH STEVENSON, TAEKWONDO WORLD CHAMPION tops the Guardian's list of justice-seeking powerhouses.

Owning Public Events: ‘Performance-Enhancing” Rights and the Olympics

Picture the small university town which holds its convocation ceremonies every spring. Proud parents and siblings, aunts, uncles and grandparents flock to the town to see junior graduate. This is the single biggest annual event in the community, and it creates a boon for local businesses of all kinds, including hotels, restaurants, bars, gift shops, florists, and convenience stores. Many of these local businesses will hang signs or banners in their windows celebrating the graduating class. In doing so, they recognize the importance of the event to the community, and they celebrate a significant occasion in the lives of residents and visitors to the community. Many of the businesses also recognize the important economic benefit brought to the community by the students, and feel it appropriate to signal this appreciation. Graduating students have likely worked as part-time employees in many of these businesses. In some cases, business owners are alumni of the schools, or have children who have attended the school. Of course, it is also true that the businesses recognize that they may benefit financially by tapping into the enthusiasm and pride of visitors to the community.

Now picture the University deciding that it “owns” convocation. After all, the event only happens because of the operations of the university. It is a major, recurring event that requires organization and preparation. The University, which is in part publicly funded, has no doubt experienced budget cuts and dislikes raising tuition to meet its needs. It might have a few key private sector donors that it would like to reward and encourage as much as possible. These donors, it reasons, have supported the university, and so should receive some sort of exclusivity when it comes to major university events. The donors think this is a good idea too. So, the university decides that it is entitled to control the goodwill associated with convocation; it wants to prevent local businesses from trading on that goodwill without paying for the right to do so. Alternatively, it might decide that rights to associate commercially with convocation should be available only to a few select corporations – those who are able to pay premium prices for an exclusive opportunity. It decides to take legal action against any company that puts up signs or banners that make any direct or indirect reference to its major event.

Does this scenario sound absurd and far-fetched? Perhaps it is an extreme example, but it is clear that we are beginning to head in the direction of recognizing some form of property right in the goodwill associated with major events. And there are good reasons why we should be concerned.

We are now only months away from the 2012 summer Olympic Games that will take place in London, England. To call this a major event is an understatement. Along with the fanfare, pomp and ceremony of the Games, we will be bombarded with advertising and merchandising campaigns. These campaigns, for the most part will be engineered by Olympic sponsors – those mega corporations that have shelled out enormous sums of money for the privileges that come with sponsorship.

There are other voices in the story of marketing and the Olympic Games, however. For years, non-sponsors have sought to associate themselves with the Olympic Games (or with other major sporting events, for that matter) without paying the exorbitant sponsorship fees. Such campaigns are called “ambush marketing”, and they are often cleverly designed so as to create associations without actually using the protected intellectual property of the International Olympic Committee (IOC) (which includes all manner of trademarks such as the name Olympics and the famous rings). For example, in 1992, Mastercard, a commercial rival of credit card company and Olympic sponsor VISA, ran an advertising campaign that stated: “And remember, to visit Spain, you don't need a visa”. (Get it?)

In frustration at the persistence of companies seeking to reference a mega international event in their marketing campaigns without having paid through the nose for the right to do so, the IOC has, for a number of years now, made a commitment to enact strong anti-ambush marketing legislation a condition of a successful Olympic bid. You might not have noticed that Canada did so for the 2010 Winter Olympics in Vancouver. This is because (as Dana Ellis, Benoit S├ęguin and I argue elsewhere), Canada’s constitutional division of powers made the drafting of such a law a tricky business, and the legal departments of major corporate non-sponsors quickly found the obvious loopholes and drove their marketing trucks right through them. (Does anyone remember the Lululemon ambush?)

Being a unitary state, these division of powers issues are not shared by Great Britain, and their anti-ambush marketing laws are among the most stringent ever seen. Former British Minister of Sport, Richard Caborn, explained to Parliament that the laws were drafted in extremely broad and open-ended terms because “we must have flexibility in our approach, to allow us to respond appropriately to any changing demands by the IOC – and there will be some – and to enable us to react to any new or innovative ambush marketing techniques that might arise between now and 2012.” (House of Commons Debates (U.K.), 2005). If that makes you feel even a little bit queasy, consider the draft regulations that have just been proposed in the U.K. The regulations give an extraordinarily broad definition of advertising. It includes just about any kind of message placed in any location that is “wholly or partly for the purpose of promotion, advertisement, announcement or direction.” It expressly captures the display of messages on a human or animal body, having a human or animal carry anything on which an advertisement is displayed, wearing advertising attire, or displaying an advertisement on an individual’s body (which includes using body paint). The regulations go so far as to target human and animal bodies because these were among the last uncontrolled communicative spaces left around the Games.

You may recall that during the 2010 FIFA World Cup of Soccer in South Africa, a group of Dutch women were arrested and charged with ambush-marketing offences (yes, FIFA now insists on such legislation too) after they attended a football match together wearing unbranded orange dresses that had been supplied by a Dutch brewery. The charges were only dropped after the story received an embarrassing amount of media coverage that made the laws seem rather difficult to justify. It is safe to assume that the Dutch women in orange dresses would not be welcome at the London Games either. We all know that the female body is considered by marketers a powerful advertising medium; what is interesting in this example is that the women themselves were criminalized for being the vehicle by which a banned message was communicated.

It is also interesting that instead of letting major corporations and event organizers duke it out in the business arena, these pillars of the free market economy have insisted upon government intervention to silence all possible distracting messaging during substantial periods before, during and after the event. And although the most problematic ambush marketing campaigns are ones that come from major corporate rivals of event sponsors, these are also the players that have the most resources to hire teams of clever lawyers to find the legal loopholes for them. Yet ambush marketing laws are applied to all businesses, large or small, with the result that small local businesses in the communities which host such major events, are allowed only to carry on their normal marketing practices and may not even mention that big event taking place on their doorstep. The mom and pop diner offering gold, silver or bronze breakfast specials during the Olympics is among those least able to respond to or fight the cease and desist letter they would inevitably receive.

By creating property-like rights in major events, governments have acted to further shrink the already embattled public domain and have contributed once again to the creeping propertization of just about anything. In this case, the IP-like right is given to event organizers, notwithstanding the fact that a major public event is a multi-stakeholder enterprise. These events do not take place without national and local government involvement, without taxpayer support, without citizens making sacrifices related to local disruptions, without athletes training and preparing for years in advance, and without the support of thousands of local volunteers – to name just a few of the stakeholders. Event organizers are being given rights in something that is not solely theirs, and in doing so, they have the power to shut down the very natural ways in which communities respond and interact to events taking place in their midst.

Universities are not next in the queue for protection under this sort of legislation. Expect it to reach all major international sporting events first (look for it again in Canada, for example, when Canada hosts the Pan-Am Games in 2016). Then look for it in relation to major sporting events such as the Stanley Cup or the Superbowl. Once it gets that far, then universities can get into what will likely be a very long line up to claim legally enforceable rights in the public domain.

Teresa Scassa is Canada Research Chair in Information Law at the University of Ottawa

Supreme Court of Canada to hear Niquab case today

Thursday, December 8, 2011

Today the Supreme Court of Canada will hear the case of R v NS, which implicates the right of a sexual assualt victim to testify while wearing the Niquab.

Here you will find a recording of a recent forum at the University of Ottawa Faculty of Law on the issue, which features a presentation by Professor Natasha Bakht.

Professor Carisimma Mathen, also of the University of Ottawa Faculty of Law commented this morning in the Globe and Mail, this morning.

National Day of remembrance and Action on Violence Against Women

Tuesday, December 6, 2011

National Day of remembrance and Action on Violence Against Women

Violence against Women in Canada: A snapshot

Violence against women by their male intimate partners around the world is a widespread, systemic problem,[1] and Canada is no exception. Through Statistics Canada, the Canadian government has been tracking rates of violence against women in Canada since 1993.[2] It has remained a consistent and pressing problem throughout this period.[3] Despite an overall drop in the crime rate,[4] women in 2009 reported rates of physical assault and sexual assault similar to those reported in 1999.[5] In 2009, of the eight crimes reported in the General Social Survey, women were most likely to report being a victim of physical assault, followed by sexual assault, and robbery.[6] According to 2009 police-reported data, spouses (current or former), and other intimate partners, committed more than 41% of violent incidents involving female crime victims. Other family members and acquaintances account for another 42% of violent incidents. In other words, 83% of violent crimes committed against women are perpetrated by people they know.[7] In 2006, spousal violence made up the single largest category of convictions involving violent offences in non-specialized adult courts in Canada over the five-year period 1997/98 to 2001/02. Over 90% of offenders were male.[8]

Women are also more likely to be killed by a male spouse or other intimate partner than anyone else. In 2009, females accounted for 71% of victims of homicides perpetrated by a current spouse, 88% by a former spouse, and 78% involving other intimate partners.[9]

These rates, which include data from police, may under represent the actual rates of violence against women, due to underreporting of violence. In 2009, only one-quarter of women victims of spousal violence reported the incident to police. Reasons for not reporting to police are varied and include fear of reprisals by the offender, shame and embarrassment, and a reluctance to become involved with the police and courts.[10] This is down from 2004 reporting rates, which showed 36% of female victims of spousal violence reported these crimes to the police.[11]

Angela Cameron is a Professor at the University of Ottawa Faculty of Law

[1] United Nations Secretary General, In-Depth Study on All Forms of Violence against Women: Report of the Secretary General (New York, United Nations general Assembly, 2006).
[2] In 1993 Statistics Canada conducted the first survey dedicated to violence against women. (Johnson, infra at 16). Also, 2011 marks the twelfth edition of Statistics Canada’s more general violence measuring tool, which tracks ungendered data collected from the national census in five year cycles. (Canada, Statistics Canada, Family Violence in Canada: A Statistical Profile (Ottawa: Statistics Canada, 2011).
[3] Holly Johnson, Measuring Violence against Women: Statistical Trends, 2006 (Ottawa: Minister of Industry, 2006). It is worth noting that updated, ungendered statistics from 2009 do not show any significant changes from the 2006 data, except to note that ‘rates of self-reported spousal violence remained stable, as did the severity of the violence, although overall survivors were less likely to report violence to the police.” (Statistics Canada, supra note 2 at 2).
[4] Johnson, supra note 3.
[5] Mahoney, infra at 6.
[6] Statistics Canada, Women and the Criminal Justice System by Tina Hottan Mahoney (Canada: Minister of Industry 2011) at 5 [Mahoney].
[7] Ibid. at 7.
[8] Statistics Canada, Measuring Violence Against Women: Statistical Trends 2006 (Ottawa: Minister of Industry, 2006).
[9] Mahoney, supra note 6 at 13.
[10]Ibid. at 6.
[11] Statistics Canada, Measuring Violence Against Women: Statistical Trends 2006 (Ottawa: Minister of Industry, 2006).

Designed by Rachel Gold.