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The Federal Prosecution Service DESKBOOK
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Part VI
POLICY IN CERTAIN TYPES OF LITIGATION
Chapter 25
Table of Contents
25 ABORIGINAL LAW ISSUES
25.1 Introduction
Aboriginal law issues can arise when an Aboriginal person1 is charged with an offence under federal legislation.
Defences based on Aboriginal or treaty rights often are raised in defence of charges of unlawful fishing or hunting under the Fisheries Act, the Migratory Birds Convention Act or other such legislation2. Subsection 91(12) of the Constitution Act, 1867 makes regulating the sea coast and inland fisheries a federal responsibility. Provinces are normally responsible for regulating hunting. However, pursuant to section 132 of the Constitution Act, 1867, the Parliament and Government of Canada retain all power necessary for performing Canada's obligations arising under treaties with foreign countries. The 1916 Migratory Birds Convention between Britain and the United States is one such treaty; accordingly, the hunting of migratory birds is regulated by the federal Migratory Birds Convention Act.
In the territories, counsel appearing on behalf of the Attorney General of Canada are responsible for prosecuting offences under federal fisheries and hunting legislation. In the provinces, counsel appearing on behalf of the Attorney General may be responsible for prosecuting offences under either type of legislation or both.
Aboriginal law issues are increasingly being raised in defences to charges under federal legislation such as the Criminal Code (eg. the firearms provisions3), the Excise Act or the Customs Act.
The prosecution of an Aboriginal person for violations of federal legislation must be handled sensitively, for a number of reasons:
- fishing, hunting or other methods of harvesting are important components of the traditional Aboriginal way of life and may be protected by treaty, or by an Aboriginal right;
- section 35 of the Constitution Act, 1982, which recognized and affirmed “
existing
” Aboriginal and treaty rights, has given such rights constitutional protection; - Supreme Court of Canada cases have indicated that Aboriginal and treaty rights should be interpreted liberally4; and
- the Court has also indicated that the relationship between the Crown and Aboriginal people in Canada is a fiduciary (“
trust-like
”) one, rather than adversarial5.
This chapter outlines the responsibilities in the Department of Justice for Aboriginal law issues and describes the relationship between the various responsibility centres.
25.2 Responsibility in the Department for Aboriginal Law Issues
The Assistant Deputy Attorney General (Aboriginal Affairs) is functionally responsible for Aboriginal law issues, and maintains a centre of expertise (the Native Law Section) on all Aboriginal law and legal policy questions affecting the Department and government as a whole. One of the principal roles of the Assistant Deputy Attorney General is to chair the Aboriginal Issues Committee (AIC), the Department's main forum for advising on Aboriginal law matters and co-ordinating related activities.
The Native Law Section is the Department's and the government's centre of expertise on Aboriginal law. It co-ordinates legal positions taken by the Crown in Aboriginal litigation by identifying, analyzing and advising. Working with counsel in legal services units, it provides legal and legal policy advice to the Minister of Justice and Departmental counsel including Legal Services Unit (LSU) counsel, litigators, other advisory counsel, the ADAG (Aboriginal Affairs) and the Deputy Minister. The General Counsel (Native Law) is the Director of the Section and Secretary to the Aboriginal Issues Committee.
The Aboriginal Litigation Manager (ALM) is a General Counsel within the Aboriginal Affairs Portfolio and reports to the Assistant Deputy Attorney General. The ALM is responsible for the strategic management of Aboriginal litigation as a whole and is the principal point of contact within the Department of Justice for Aboriginal litigation-related business functions. The ALM promotes internal communication on Aboriginal litigation through the maintenance of a national inventory of Aboriginal law cases and other types of national informatics support.
The co-ordination of Aboriginal legal issues in litigation is handled by a team made up of the Aboriginal Litigation Manager and two Senior Counsel co-ordinators who report to him. One co-ordinator, the Senior Counsel, Litigation Services, Indian and Northern Affairs (INAC) Legal Services, focuses on litigation in which INAC is the lead department. The Aboriginal Litigation Co-ordinator, located in the Native Law Section, focuses on multi-departmental litigation (eg. where the lead client department is not INAC) and/or litigation which has government-wide impact. Prosecutions in which Aboriginal law issues are raised are generally co-ordinated by the Aboriginal Litigation Co-ordinator.
The role of the Co-ordinator is to consult on the Aboriginal law component of any legal proceeding, to offer advice on departmental legal and policy views on Aboriginal law issues and to use existing processes within the Department to attempt to resolve any differences. The Co-ordinator does not direct Crown counsel in the conduct of any case, but does maintain contact with Crown counsel responsible for prosecutions involving Aboriginal law issues. The Co-ordinator is one point of access for Crown counsel to specialised advisory units such as the Native Law Section and the Constitutional and Administrative Law Section.
Most Regional Offices have an Aboriginal Law Group Head. Litigation offices in the National Capital Region have contact persons on Aboriginal litigation. Together with the Aboriginal Litigation Manager and the two co-ordinators, they form the National Co-ordinating Group for Aboriginal Litigation. Through a weekly national conference call and follow-up, each member of the National Co-ordinating Group for Aboriginal Litigation is committed to the sharing of information both within regional offices and nationally. The National Co-ordinating Group’s objective is to increase the ability of both counsel and of the Department of Justice as a whole to bring consistency and excellence to the conduct of Aboriginal litigation. Prosecutors can access this flow of information through the Aboriginal Law Group Head or contact person in their regional or NCR offices.
The Aboriginal Issues Committee (AIC) serves as the Department's focal point for Aboriginal law issues. Its regular membership includes the Aboriginal Litigation Manager, representatives from the Native Law Section, the Aboriginal Justice Directorate, the Legal Services Units at the INAC and various other departments, Public Law, the Civil Litigation Section, the Civil Law Section and regional offices. Others from the Department of Justice are invited to attend when specific matters affect them.
The AIC co-ordinates departmental activity involving Aboriginal law. Although the Litigation Committee is ultimately responsible for individual litigation involving Aboriginal law issues, the AIC has an important and complementary involvement in this area. It plays a role similar to that of the Charter Committee, by dealing with important policy and legal issues which can arise in Aboriginal litigation. The Aboriginal Litigation Manager, in consultation with representatives from the Litigation Sector, may refer matters to the AIC. Issues may also be referred to the AIC by the Litigation Committee.
To complement the responsibility of the Aboriginal Affairs Portfolio for Aboriginal law matters, senior managers may be appointed to assume functional responsibility for Aboriginal law issues on a portfolio-wide basis. The Assistant Deputy Attorney General (Criminal Law), however, maintains functional responsibility for criminal prosecutions and related litigation services, including those involving Aboriginal law issues. In addition, in all Regional Offices, specific individuals have been named to act as primary contact points for Aboriginal prosecutions. These individuals are expected to work closely with Crown counsel responsible for the conduct of individual prosecutions involving Aboriginal law issues, as well as the Aboriginal Law Group Head in their Regional Office and the Aboriginal Litigation Co-ordinator.
25.3 Consultation
The Aboriginal law field is a matter of shared responsibility. On occasion, it may be difficult to draw a clear line between pure litigation questions and questions of Aboriginal law and policy. Accordingly, consultation among responsibility centres is essential. The Department has developed an effective consultation process to ensure a consistent approach and strategy in prosecutions involving Aboriginal law issues.
Anticipating the development of new Aboriginal law issues and arguments is essential. Advance notice gives the Department sufficient time to properly examine and research these issues and to develop appropriate positions. As Aboriginal rights arguments raised in defence to prosecutions often have parallels in claims put forward in civil actions and in negotiating positions, consistency of approach is essential. The differing procedural requirements between criminal and civil cases (such as the pre-trial disclosure requirements in criminal law) can have the potential to significantly affect the course of civil litigation.
Accordingly, Crown counsel should inform the regional contact person of every prosecution of Aboriginal persons or groups in which Aboriginal law issues are raised. The regional contact person, in turn, should inform the Aboriginal Law Group Head and the Aboriginal Litigation Co-ordinator of all such prosecutions. It is particularly important that the Co-ordinator be kept informed of current and anticipated developments in these cases such as the arguments raised in the defence, the historical and other research requirements, proposed federal responses to the defence arguments (draft memoranda and facta) and problems with the case.
The Co-ordinator notifies the Legal Services Units of the responsible client department (for example, Environment Canada) and of the Department of Indian and Northern Affairs of major prosecutions involving Aboriginal law issues. The Co-ordinator consults with these units and with specialized legal advisory units (Native Law, Constitutional and Administrative Law, etc.) as required.
Crown counsel conducting prosecutions involving Aboriginal law issues should remain well-informed about important Aboriginal litigation and the Department’s Aboriginal legal and legal policy advice. They can do this by communicating regularly with the regional contact person and the Aboriginal Group Head who are responsible for ensuring the flow of information on Aboriginal law matters within the Regional Office, by reading papers and opinions which have been presented at the AIC and by speaking with the Aboriginal Litigation Co-ordinator and/or Aboriginal Litigation Manager.
25.4 The Input and Views of Client Departments
Crown counsel conducting prosecutions involving Aboriginal law issues should, where possible, consider the views of federal departments with an interest in such prosecutions. These include the responsible client department (for example, the Canada Customs and Revenue Agency if the prosecution involves charges under the Customs Act) and the Department of Indian and Northern Affairs which is interested in all litigation involving Aboriginal persons or groups. Depending on the issues raised, other departments may take an active interest in a particular prosecution. For example, an issue of access to Crown land that arises in a prosecution for hunting on National Defence property will likely be of great interest to Heritage (Parks) Canada.
The Legal Services Units of these departments can assist Crown counsel to appreciate the policy concerns of their client departments and should be kept informed of developments in cases in which they have signalled an interest. Crown counsel may contact these units directly or through the Aboriginal Litigation Co-ordinator. The Co-ordinator is available to assist Crown counsel in determining which federal departments may be affected by or interested in arguments to be made on behalf of the Attorney General.
Crown counsel may have difficulty resolving certain Aboriginal law issues for several reasons, including:
- the existence of equally compelling but conflicting positions;
- the sensitivity of the issue; or
- the need for a uniform national approach to a particular issue.
If so, Crown counsel should refer the issue to the Prosecution Group Head or Senior Regional Director for resolution. Either may refer it to the Aboriginal Litigation Co-ordinator for further assistance, if required.
In referring a matter to the Co-ordinator, the Group Head or Regional Director should send a copy of the information or indictment or the prosecution brief and outline the following, in writing:
- the precise issues;
- the full material facts;
- the options available at the local level; and
- a recommended solution or course of action.
Where a matter cannot be resolved at the working level with the assistance of the Co-ordinator, it may be brought to the attention of the Aboriginal Litigation Manager for resolution by the Assistant Deputy Attorney General (Criminal Law) in consultation with the Assistant Deputy Attorney General (Aboriginal Affairs).
In addition to consultations within the federal sphere, where applicable and appropriate, Crown counsel may consult with provincial or territorial government officials. Crown counsel who learn of provincial prosecutions in which Aboriginal law issues are raised should provide such information to the Aboriginal Litigation Co-ordinator and may be asked to keep in contact with their provincial counterpart regarding such cases.
25.5 Instructions and Directions from Headquarters
At all times, Crown counsel has responsibility for the conduct the prosecutions on behalf of the Attorney General. If there is a difference of opinion on an Aboriginal law issue between Crown counsel and a client department, the matter should be brought to the attention of the Group Head or Senior Regional Director. Most such differences can be resolved at the regional level. It is essential that all parties move with dispatch in attempting to resolve differences.
However, if the matter cannot be resolved at this level, the Group Head or Regional Director should advise the client department to express their concerns to the Legal Services Units at their departmental headquarters. The Group Head or Regional Director should then inform the Aboriginal Litigation Co-ordinator. This permits the Co-ordinator, in consultation with the client department's Legal Services Unit and other Justice counsel in advisory and legal services units, to facilitate the development of appropriate responses and solutions.
The Co-ordinator will consult with Crown counsel, Legal Services counsel and appropriate specialized legal advisory counsel (in Native Law & Public Law) to develop a solution. Where necessary or appropriate, the Co-ordinator may also consult with the General Counsel (Native Law), Heads of Specialized Legal Advisory Units, Prosecution Group Heads, Aboriginal Group Heads and/or the Aboriginal Litigation Manager. The Co-ordinator may facilitate an inter-departmental meeting to permit the exchange of views amongst affected departments (client / Justice / INAC / other). The Co-ordinator will ensure (through Crown counsel) that any recommendations or solutions derived from the consultations are acceptable to the Prosecution Group Head, Regional Director and the Assistant Deputy Attorney General (Criminal Law). Crown counsel will ensure (through the Co-ordinator) that any recommendations or solutions are acceptable to the Aboriginal Litigation Manager and the Assistant Deputy Attorney General (Aboriginal Affairs).
Most issues will not require consultation beyond that provided by the Aboriginal Litigation Co-ordinator. However, in rare circumstances, consultation may fail to generate a solution. The Co-ordinator shall then advise the General Counsel (Native Law) and the Aboriginal Litigation Manager. The latter will notify the Assistant Deputy Attorney General (Aboriginal Affairs) and the Assistant Deputy Attorney General (Criminal Law), who will decide on an appropriate forum to resolve the issue. The Litigation, Charter or Aboriginal Issues Committees may be asked to examine the matter further. If the matter cannot be resolved, it may ultimately be referred to the Deputy Minister. When the matter is finally resolved, the Aboriginal Litigation Manager will inform Crown counsel, the Prosecution Group Head and all other involved departmental counsel.
If the issue that is sought to be resolved arises immediately before or during a trial, the consultation process should be undertaken as quickly as possible to ensure that the rights of the accused person to a trial within a reasonable time are not violated.
25.6 Notices of Constitutional Question6
The Attorney General, on the recommendation of the Litigation Committee, decides whether to intervene7 in constitutional cases involving Aboriginal law issues.
If a Regional Office receives a Notice of Constitutional Question involving an Aboriginal law issue, it shall notify the Aboriginal Litigation Co-ordinator immediately and provide the Co-ordinator with a copy of the Notice and related materials. Where the Notice is in respect of litigation to which the Attorney General is not already a party, the Regional Office will also provide a preliminary recommendation with respect to the question of an intervention.
The Co-ordinator, upon receipt of the Notice, will consult as appropriate within the Department and with potentially affected departments through their Legal Services Units. Where the Notice arises out of a provincial prosecution, the Co-ordinator will consult with the Assistant Deputy Attorney General (Criminal Law). The Co-ordinator will advise the Senior Regional Director and all interested departmental counsel of any conclusions or directions emanating from the consultation process.
Where a recommendation in favour of intervention by the Attorney General is found to be appropriate, the Senior Regional Director, the Assistant Deputy Attorney General (Criminal Law) or the Assistant Deputy Attorney General (Aboriginal Affairs) may make a recommendation to intervene to the Litigation Committee. Crown counsel will prepare the materials for Litigation Committee. The Co-ordinator will assist Crown counsel upon request.
1 Aboriginal peoples are those whose Aboriginal and treaty rights are protected under section 35 of the Constitution Act, 1982. Section 35(2) states that the “‘Aboriginal peoples’ of Canada includes the Indian, Inuit and Métis peoples of Canada.
”
2 See, for example: R. v. Sioui (1990), 56 C.C.C. (3d) 225 (S.C.C.) where the accused was charged with cutting down trees, camping, and making fires in places not designated in Jacques-Cartier Park, contrary to the Regulation respecting the Parc de la Jacques-Cartier. The charges were dismissed as the Regulations were unenforceable against the accused due to the existence of a treaty.
3 See, for example, R. v. Chief (1989), 51 C.C.C. (3d) 265 (Y.T.C.A.) where the court held that the mandatory prohibition order under the former section 100(1) [now s.109] of the Criminal Code constituted cruel and unusual punishment as it would deprive the accused, a native Indian trapper, of his livelihood and lifestyle.
4 Simon v. The Queen, [1985] 2 S.C.R. 387 at 402; R. v. Marshall, [1999] 3 S.C.R. 533.
5 R. v. Sparrow (1990), 56 C.C.C. (3d) 263 (S.C.C.).
6 See also Part IX, Chapter 47 ,“Considerations Governing Intervention
”
7 See Part IX, Chapter 46, “The Role of the Litigation Committee
”.
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