Checking Duty at the Border: Cross-border Consultation in Divided Territories

by Johnathon Cruickshank

Introduction

During oral arguments for R v Desautel, Justice Brown of the Supreme Court of Canada (SCC) testily shot questions at an intervenor who raised the Crown’s duty to consult with Indigenous communities in the United States (US), asking: “And put an ad in 50 newspapers in Montana?”¹ The exchange demonstrates the increasing questions judges and lawmakers have as rights under section 35 of the Constitution Act, 1982 are expanding to include Indigenous communities beyond Canada’s boundaries. More specifically, the subsequent decision in Desautel, which constitutionalized hunting rights for Indigenous peoples in the US whose traditional territory stretches into Canada, holds important implications for the duty to consult across borders.²

For one intervenor in the case, the Peskotomuhkati nation, cross-border consultation has wide-reaching consequences.³ With their traditional territory bisected by the border, the arguments raised by the nation in Desautel demonstrate the tension between their assertion of rights and Canada’s concerns regarding its own territorial sovereignty.⁴ Questions of how the Crown must consult and accommodate communities on both sides of the border loom large in light of imminent developments on Peskotomuhkati land.⁵ Accordingly, this paper seeks to unpack the SCC’s logic around borders and section 35 rights, particularly through the lens of reconciliation. It argues that the current transnational duty to consult is inadequate in light of reconciliatory efforts to promote a nation-to-nation relationship between Canada and Indigenous nations. First, the duty to consult appears to be weaker when applied to communities in the US. Second, the duty does not address past failures to consult. Third, the current framework puts an undue onus on Indigenous parties. These critiques are put into perspective using the Peskotomuhkati nation’s experiences as an example of the framework’s shortcomings.

It is important to note I do not identify as Indigenous nor as a member of any of the Indigenous nations discussed in this paper. I have taken care to discuss these issues respectfully and with varying perspectives considered. As Val Napoleon and Hadley Friedland warn, “[Analyzing an Indigenous legal order] requires critically reaching into its depths, scope, and complexity. Otherwise, there is a danger that Indigenous law will just become a collection of philosophical generalities.”⁶ This paper does not purport to act as an authority on Peskotomuhkati law. It instead hopes to spark meaningful conversation on what standard we should hold Canadian jurisprudence to as it intersects with other legal systems.

The Nation-to-Nation Relationship and Reconciliation Framework

To begin, it is helpful to look at the work of the SCC through the lens of how Indigenous peoples envision the relationship between Canada and their nations. The often-touted nation-to-nation framework is one such vision, suggesting a more mutually respectful power dynamic with Canada.⁷ The framework traces its origins back to the evolving treaty relationships between settlers and Indigenous nations that unfolded before Canada confederated.⁸ The Royal Proclamation of 1763 and the subsequent Treaty of Niagara of 1764, the former of which is recognized under Canada’s constitution, are foundational legal documents that affirmed relationships with the Crown and unleashed an era of treaty-making.⁹ In this way, the nation-to-nation framework has legal and constitutional foundations.¹⁰

After decades of assimilationist policies, the language of reconciliation has taken root as a guiding principle, cemented by the work of the Truth and Reconciliation Commission of Canada (TRC). Their report has called for, among other things, a reimagining of the current consultation and accommodation approach by Canada into one based on the consent of Indigenous nations, in line with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).¹¹ Similarly, it has called for legal doctrines to ease the onuses put on Indigenous claimants to prove rights and title under section 35.¹² Other First Nations-led projects, like the Yellowhead Institute, have endorsed a similar approach to reforming the duty to consult.¹³ In response, federal and provincial governments have adopted the UNDRIP legislatively.¹⁴ While it is still unclear how it will impact Canada’s legal system, UNDRIP nevertheless endorses principles of consent-based dealings and Indigenous self-determination.¹⁵

The Peskotomuhkati Nation and Canada

The Treaty Relationship and Lack of Recognition

Like many Indigenous nations, Peskotomuhkati territory was divided by the formation of the Canada-US border.¹⁶ The Peskotomuhkati (or Passamaquoddy) live by the watershed of Passamaquoddy Bay and the Skutik (or St. Croix) River, the latter of which separates two communities in Maine from one community in New Brunswick.¹⁷ Despite the cross-river division, the three communities mutually recognize one another as part of the collective Peskotomuhkati nation and “maintain close political, social and kinship ties.”¹⁸ Both oral histories and archaeological evidence have confirmed the Peskotomuhkati’s presence in the region for at least 13,000 years.¹⁹

While the Peskotomuhkati communities in the US have federal recognition, the “Skutik” community on the Canadian side have yet to be federally recognized under the Indian Act.²⁰ The situation resembles the treatment of the Sinixt nation at the centre of the Desautel case, who were believed to have been “extinct” in Canada.²¹ Peskotomuhkati Chief Hugh Akagi recalls the issue began in 1951.²² That year, an Indian Agent was meant to travel from Fredericton to St. Andrews to take a census of the community.²³ Instead, he stayed behind because it was too cold.²⁴ Chief Akagi summed it up by stating: “Canada doesn’t like problems. Border tribes are problems.”²⁵

Notwithstanding their lack of Indian Act status, the Peskotomuhkati nation is a signatory of the Peace and Friendship Treaties with the Crown.²⁶ In fact, their treaty relationship is one of the oldest on record. Along with the L’nu (Mi’kmaq), Wolastoqey, and Penobscot nations, they signed Mascarene’s Treaty of 1725-26.²⁷ Using the framework laid out by the SCC in Simon v The Queen, a 1987 New Brunswick Court of King’s Bench decision upheld the Treaty’s constitutional authority by finding it was not invalidated by conflicts between the signatories in the following years.²⁸ The Peskotomuhkati would go on to sign additional treaties with the Crown, most notably in 1760-61.²⁹ The pivotal moment in the famous Marshall decision, which interpreted the minutes of a 1760 meeting to contextualize treaty terms, actually involved Peskotomuhkati representatives.³⁰ The SCC held the meeting demonstrated a treaty right to fish, which was protected constitutionally.³¹ In the wake of the Marshall ruling, the Peskotomuhkati in Maine publicly asserted the decision confirmed their treaty rights to fish in Canada as well.³²

The Point Lepreau Nuclear Generating Station

The Peskotomuhkati nation currently faces real and imminent consequences regarding their section 35 treaty and Aboriginal rights. Along with their intervention in Desautel, the Peskotomuhkati have been involved in a legal dispute before the Canadian Nuclear Safety Commission (CNSC).³³ The CNSC is an administrative tribunal that regulates nuclear energy and materials.³⁴ In 2021, it received an application from New Brunswick Power Corporation (NB Power), a provincial Crown corporation, to renew the licence for the Point Lepreau Nuclear Generating Station (PLNGS) for 25 years.³⁵ The PLNGS is located near Peskotomuhkati territory’s easternmost watershed.³⁶

The Peskotomuhkati raised a number of concerns regarding the prospect of a 25 year renewal, citing health and safety risks resulting from the PLNGS’s operation.³⁷ Air emissions, impacts on the marine ecosystem, and the potential for catastrophic failures and resulting contamination were all noted as crucial environmental considerations.³⁸ Additionally, the nation has expressed particular reservations about new small modular reactors being built at the facility, which pose additional uncertainties.³⁹ The province has already signed on to a memorandum to produce more small reactors.⁴⁰ While building additional reactors on the site would require more licencing, the 25-year renewal is feared to provide a runway for the projects.⁴¹

The nation was never consulted over the PLNGS’s original construction nor for any subsequent operations.⁴² When inquiring as to why they were not consulted on the most recent licence renewal, the CNSC’s staff responded that granting a new licence would not impact the operations of the PLNGS and thus would not lead to new potential impacts on section 35 rights.⁴³ The Peskotomuhkati responded that this view fails to consider the impacts of new emissions and waste, as well as the fact that continued operation opens the door to further licencing of additional nuclear projects.⁴⁴

Within Peskotomuhkati legal frameworks, these environmental risks take on a much deeper significance. As the nation explained to the CNSC: “Wabanaki law, emanating from the stories of Creation, … views people, land, and other living beings in family terms. It considers the animals, birds and fish as our brothers and sisters.”⁴⁵ The health of traditional food sources, and the aquatic and terrestrial systems that house them, are notably important to Peskotomuhkati identity, spirituality, and ways of being.⁴⁶

Peskotomuhkati Identity and Nested Sovereignties

Peskotomuhkati law and identity understands their rights as inherent and stretching across their territory, regardless of colonial borders.⁴⁷ Seeing as the nation views themselves collectively, Peskotomuhkati on either side of the border are seen as beneficiaries of the treaties.⁴⁸ Peskotomuhkati conceptions of nationhood can also be seen in their approach to negotiations to gain recognition under the Indian Act. Peskotomuhkati lead negotiator Paul Williams has noted that the rights and interests of the Peskotomuhkati on the US side are an important part of the talks.⁴⁹

Peskotomuhkati understandings of citizenship and sovereignty can be conceptualized through Kanienʼkehá:ka anthropologist Audra Simpson’s idea of “nested sovereignties.”⁵⁰ Simpson’s work explores the impact of colonial borders on the lives and collective identities of members of the Kanienʼkehá:ka (or Mohawk) nation, part of the Haudenosaunee Confederacy, whose territory is similarly divided by the US-Canada border.⁵¹

The idea of nested sovereignties conceptualizes the fact that Indigenous peoples exist as both rights-holding citizens of settler states Canada and the US, as well as members of their respective nations.⁵² Simpson points out how the Kanienʼkehá:ka have protected rights within Canada, while also identifying and participating as members of a different federation: the Haudenosaunee.⁵³ It is in relation to borders and border crossings that these realities conflict most.⁵⁴ Simpson describes how Kanienʼkehá:ka identity is present both before and after crossing the border, but it is especially present as crossing.⁵⁵ This is because the existence of Kanienʼkehá:ka people “agitates” Canadian and American notions of separation and citizenship.⁵⁶ While Kanienʼkehá:ka people may understand the existence of their rights as inherent to being members of their nation, settler state institutions may only see that right as a claim, which requires identification and proof.⁵⁷ The onus then lies on members of the Kanienʼkehá:ka nation to prove the Indigenous part of their identity.

Simpson’s concept of nested sovereignties unpacks complexities of Peskotomuhkati identity and treaty rights as being both inherent as well as subject to judgement from Canada.⁵⁸ It also helps explain why the TRC has called for an easing of burdens on Indigenous nations to prove their rights. Ultimately, none of this can be separated from the fact that the existence of settler borders across Indigenous nations has been observed to come with great costs to the communities, including preventing trade, undercutting cultural traditions, and reducing social and kinship networks.⁵⁹

The Peskotomuhkati’s current dispute before the CNSC brings these issues to the forefront. Concerns include how the current consultation framework can rectify past failures to consult and how consultation will look moving forward if NB Power is to build further reactors on Peskotomuhkati land. Crucially, given the decision in Desautel and the nation’s own conceptions of collectivity, how are the constitutional rights of Peskotomuhkati across the border to be treated?

The Duty to Consult Across Borders

The Foundations of a Transnational Duty to Consult

Many answers to these questions can be found in the jurisprudence itself. To start, the duty to consult and accommodate flows from section 35 of the Constitution Act, 1982.⁶⁰ This duty arises from the “honour of the Crown,” which is engaged any time the government contemplates action and has “real or constructive” knowledge of a potential adverse effect on an Aboriginal or treaty right resulting from that action.⁶¹ The duty has been found to apply to asserted yet “unproven” interests, to established rights and title, and to rights and territory protected by historic treaties.⁶² It also exists on a spectrum relative to the strength of the claim.⁶³ While a duty on the lower end perhaps only requires the Crown “give notice,” a greater potential infringement on rights would require more engagement and even accommodation.⁶⁴

The SCC has stated the duty’s purpose is to advance the cause of reconciliation.⁶⁵ While the TRC frames reconciliation as a nation-to-nation relationship predicated on accountability and consent, the SCC has a different interpretation.⁶⁶ Numerous rulings have defined the purpose of the duty to consult, and section 35 as a whole, as a means to reconcile “pre-existing” Indigenous sovereignty with the asserted sovereignty of the Crown.⁶⁷ As a consequence, reconciliation is used more as a balancing tool to weigh different interests.⁶⁸ The SCC has explicitly rejected a framework of consent as “appropriate only in cases of established rights, and then by no means in every case.”⁶⁹

After the SCC established the duty to consult and accommodate, it went on to explain how it applies to the renewal of projects that Indigenous peoples were never consulted on in the first place in Rio Tinto Alcan Inc v Carrier Sekani Tribal Council.⁷⁰ The facts of the case resemble the Peskotomuhkati’s situation. A tribunal was tasked to approve a sale of hydro power from a private company to the province.⁷¹ The sale was one of many that had taken place since the company had dammed the Nechako River in the 1950s.⁷² The Carrier Sekani Tribal Council First Nations were never consulted on the dam’s original construction nor subsequent energy sales, and the Council argued the tribunal had a duty to consult them when considering future sales.⁷³ The duty to consult was found not to apply as the dammed river had “long since been altered” and the approved sale was not a further “adverse impact.”⁷⁴ As there was an “underlying infringement” due to the dam’s original construction, only compensation could be considered.⁷⁵ Any future decisions by the province that may potentially adversely impact rights, however, would require consultation.⁷⁶

Given this foundation, the SCC’s only defining statement so far on transnational consultation has been in Desautel. In holding that members of the Sinixt nation can hunt on their territory within Canadian borders, the SCC extended constitutional protection to the rights of Indigenous peoples who are not Canadian citizens.⁷⁷ In their judgement, the majority of the SCC produced the “clearest statement to date from the Court that the onus is on an Indigenous group to acquaint the Crown with its Aboriginal rights claims.”⁷⁸ When it comes to Indigenous communities in the US whose rights may be impacted by Crown actions, the Crown is “free to act.”⁷⁹ This is because the Crown cannot be expected to be aware of a claim until a community brings it to their attention.⁸⁰ It is then up to the Crown to decide where on the spectrum the duty falls, depending on the strength of the right or title and the seriousness of the adverse impact.⁸¹ The majority goes on to warn that “groups outside Canada are not implicated in this process to the same degree,” and so consultation may be different than for a group within Canada.⁸² Finally, they make the point that since some claimants are “located outside [the] broader community,” this is a relevant contextual factor in justifying an infringement of their rights.⁸³ While the majority frames this differing approach as one based on mostly logistical considerations, this may only partly explain why the SCC was so comfortable to retreat from the strong consultation obligations in Haida. As previous jurisprudence reveals, the SCC is hesitant to permit section 35 rights that make the border appear immaterial.

Borders and Territorial Integrity

The Desautel ruling ultimately sidesteps foundational questions of territorial integrity and sovereign incompatibility.⁸⁴ However, previous decisions on the border in relation to section 35 rights give clues as to why the SCC’s logic on cross-border consultation looks different. In Mitchell v MNR, Justice Binnie took time to address the concept of “sovereign incompatibility.”⁸⁵ Sovereign incompatibility allows for the denial of section 35 rights if they are at odds with fundamental aspects of Canadian sovereignty.⁸⁶ In Mitchell, the SCC considered whether members of the Kanienʼkehá:ka nation had a cross-border trading right under section 35.⁸⁷ In his concurring judgement, Justice Binnie made the point that “ [c]ontrol over the mobility of persons and goods into one country is … a fundamental attribute of sovereignty.”⁸⁸ In Binnie’s interpretation of reconciliation, he somewhat paradoxically stated that while Indigenous peoples are not subjugated by Canadian sovereignty, their “shared sovereignty” with other Canadians means that no rights should be recognized that harm collective existence.⁸⁹ He designates trading  rights arising from the claimant’s citizenship with the Haudenosaunee Confederacy as incompatible with Canadian sovereignty.⁹⁰ While the majority did not endorse the doctrine of sovereign incompatibility outright, they did not rule it out as a concept either.⁹¹

Furthermore, in Reference re Secession of Quebec, the SCC considered the concept of territorial integrity in relation to a group seceding from Canada.⁹² Drawing upon international legal instruments, they affirm any rights to self-determination must be exercised with regard for a nation state’s borders.⁹³ However, though they see this principle as being “manifestly inapplicable” in the context of  Quebec, they recognize that a group under colonial rule does have a right to their own territorial integrity, which may be exercised “externally” or in opposition to the colonial states’ authority over its own boundaries.⁹⁴ Although this was a strong assertion, the SCC has yet to employ the latter logic   in border-related section 35 jurisprudence.

The question of cross-border section 35 rights, which the SCC has pegged as oppositional to territorial integrity, is complicated further by the legislative adoption of the UNDRIP. While unmistakably advocating for Indigenous self-determination, article 46 states that nothing in the UNDRIP should be “construed as authorizing … any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.”⁹⁵

In summary, much of the jurisprudence positions territorial integrity, and borders by extension, as an unwavering aspect of Crown authority to which section 35 rights must bend. This logic around boundaries may help to explain why the SCC conceptualizes transnational consultation differently in Desautel.

The SCC’s reasoning reflects the arguments of scholar Malcolm Anderson. Anderson identifies borders as both institutions and processes.⁹⁶ As institutions, they serve to define the boundaries of a state’s sovereignty and mark the territory in which citizens can exercise their rights.⁹⁷ As processes, borders act as a safeguard for a state’s sense of legitimacy.⁹⁸ Functionally, the law uses boundaries to understand how far its own power extends, with these boundaries themselves becoming an integral part in upholding that power.⁹⁹ As Anderson reasons, they are inseparable from “rule-bound economic, social [and] political life in complex societies.”¹⁰⁰

Both the Quebec Reference and Binnie’s judgement in Mitchell can be seen to endorse Anderson’s conception of borders. While borders mark the boundaries of sovereignty and the territory where Canadian citizens’ rights can be exercised, they also become a part of Canada’s sovereignty and are invoked to limit other sources of rights. As the doctrine of sovereign incompatibility makes clear, certain rights flowing from other sovereignties, such as those conceptualized by the Peskotomuhkati, must yield if they call into question the border’s legitimacy.¹⁰¹ This exemplifies the agitation, described by Simpson, felt by settler states when cross-border rights are asserted. While section 35 looks to balance the interests of competing sovereignties, borders appear to be too fundamental to allow for much meaningful balancing. On the one hand, it is difficult to see why the SCC would take such a strict stance on the duty to consult specifically, considering how different consultation is compared with trading rights raised in Mitchell. On the other hand, the SCC’s exaggeration of the border as a hindrance on the Crown’s ability to be aware of communities and their insistence that such a boundary places certain portions of nations outside the “process of fair dealing and reconciliation,” demonstrates a reverence for the clear separation between Canada and the US.¹⁰² As a result, communities across the border have been given a watered-down right.

Transnational Consultation in Perspective

Looking at the Peskotomuhkati’s dispute before the CNSC allows us to conceptualize how transnational consultation would work in practice. By working through the conclusions the SCC has come to, it is clear the current framework does not embrace a reconciliatory nation-to- nation relationship. Rather, it weakens the duty to consult, does not address past failures of consultation, and places undue burdens on cross-border communities. These contentions can be weighed against the nuance found in the UNDRIP’s article 46.

The Crown has Weaker Obligations to Communities Across the Border

First, despite being merely across the river, the Crown’s obligations to Peskotomuhkati communities in Maine are much less than to those in New Brunswick. The SCC held in Desautel that consultation with cross-border communities is different due to those communities not being as “implicated” in Canada’s assertion of sovereignty and the resulting requirement for “fair dealings” stemming from that.¹⁰³ As a result, justifications for infringement of those communities’ rights can take this remoteness into consideration.¹⁰⁴

Several issues arise from this reasoning. First, by contending that Indigenous communities bisected by Canada’s border are not as implicated in the Crown’s assertion of sovereignty, the SCC overlooks how the very assertion of sovereignty and creation of the border itself implicates these communities. The purpose of the duty is to mitigate negative impacts of government actions that occur on an Indigenous community’s territory. The fact that a community is not located specifically within Canada does not mean it is not impacted by actions taken by the Crown just across the border. Nuclear pollution on Peskotomuhkati territory, regardless of which side the community falls on, will still have sizeable consequences for water systems and wildlife that all Peskotomuhkati are concerned with.

Second, opening the door to greater infringement of a community’s section 35 treaty rights simply due to their location relative to the border is in opposition to the principles of reconciliation. While such a concept may be justified under the SCC’s ‘balancing act’ version of reconciliation, any further weakening of the duty to consult can be seen to move in the opposite direction of a consent-based relationship. The TRC has called for the free, prior, and informed consent of Indigenous nations, and this call has been strengthened by the legislative adoption of the UNDRIP.¹⁰⁵ The Peskotomuhkati have similarly described to the CNSC that they perceive the treaty relationship as one predicated on consent between parties.¹⁰⁶ Therefore, the developments in Desautel do not align the jurisprudence with this legislative intent and Peskotomuhkati treaty conceptions.

Instead, the SCC has provided more leeway for infringement, further straining the treaty relationship and perpetuating the exclusion of cross-border communities from decision-making processes that impact their rights.¹⁰⁷

The Duty is Not Retroactive

The second issue with the current The second issue with the current framework is that the Peskotomuhkati in Canada and the US are not entitled to consultation on ongoing projects they were never originally consulted on, so long as these projects have “long since […] altered” their territory.¹⁰⁸ First, while it is impossible to retroactively consult on projects that have reached their completion, the SCC has failed to recognize the need for consultation on ongoing and cumulative impacts that might otherwise fly under the Crown’s radar. The PLNGS, for example, has been documented as having continued impacts on the surrounding environment long after its original construction. Air emissions have continued to increase and there remains a risk of further pollution resulting from ongoing operations.¹⁰⁹ Admitting the damage has been done and only considering compensation in these situations, as the SCC did in Rio Tinto, constitutes a missed opportunity to further uphold the honour of the Crown by continually engaging Indigenous communities in meaningful consultation or accommodation that can mitigate current and future harms. In the case of the Peskotomuhkati, who were thought not to exist in New Brunswick due to an administrative error, this would be a chance to rectify their systemic exclusion.

Second, this lapse in the doctrine holds relevance when considering that communities in the US are disproportionately more likely than others to be left out of original consultation and accommodation considerations. The Peskotomuhkati in Maine were never given a voice on nuclear projects, forestry, and many other developments impacting their land. With the SCC’s expansion of rights in Desautel, logistical considerations like this must be accounted for if Indigenous peoples in the US are to be able to enjoy the full extent of the constitutional obligations owed to them under section 35.

A central pillar of reconciliation and the nation-to-nation relationship is making systemic changes that both right past wrongs and ensure similar issues do not persist in the future. The TRC has deliberately described this relationship as “ongoing.”¹¹⁰ This is also consistent with Peskotomuhkati understandings of treaty relations, which they describe as “organic, flowing relationships.”¹¹¹ Such guidelines suggest an impetus for the SCC to adapt the scope of the duty to consult to promote a more robust dialogue with the Crown. The current framework, however, does not make this effort. This failure to promote flexibility in Crown-Indigenous relations is particularly problematic when considered in conjunction with the reverse onus placed on cross- border communities.

Reverse Onuses on Groups Outside of Canada

Finally, the current framework puts an undue burden on the Peskotomuhkati in Maine to notify the Crown of their desire to be consulted. When it comes to transnational obligations, the SCC has effectively shifted the onus onto communities outside Canada to remind the Crown it has an honour to uphold. The SCC’s guidance in Desautel is a marked and arguably inconsistent departure from the strict onus placed on the Crown in Haida. It is difficult to reconcile how the Crown is held to a standard of constructive knowledge within Canada but is not expected to take any precautions whatsoever for communities in the US. This complete relaxing of the obligations of the Crown presents a few problems. First, this framework overlooks the complications of how communities not located in Canada are supposed to know when the Crown is contemplating conduct that may infringe their rights. This approach completely neglects the asymmetry in resources and information between the Canadian government and Indigenous nations. Plus, given the limited retroactive considerations described in the previous section, if an Indigenous community is not able to notify the Crown of its desire to be consulted within a certain window of impact, it might be out of luck altogether.

The imposition of a reverse onus is once again in contrast to calls from the TRC to avoid placing further barriers on Indigenous claimants in court.¹¹² The TRC has specifically suggested shifting some of the onuses on parties claiming section 35 rights onto the Crown to correct, as they described them, currently “unfair” legal tests.¹¹³ The newest onus placed on communities in the US instead adds additional obstacles to even trigger a consideration of consultation.

Let us return to the concept of nested sovereignties. Simpson discusses how the inherent existence of Indigenous rights becomes a claim subject to scrutiny by the settler state.¹¹⁴ In the end, any such right must be proven and recognized as a right.¹¹⁵ Consequently, it becomes difficult and tiresome to maintain this constant exercise of gaining approval.¹¹⁶ This additional onus only exacerbates these difficulties. As it stands, the current jurisprudence burdens Peskotomuhkati outside Canada with requiring them to notify the Crown of an interest in their very own territory.

Article 46

Finally, the legislative enshrining of the UNDRIP is undoubtedly seen as a boon for Indigenous rights in Canada. Indeed, many of the articles support greater Indigenous self-determination.¹¹⁷ However, in the context of cross-border assertions of Indigenous legal presence, article 46 indicates that such cases are subject to greater considerations when they implicate territorial borders of states. Similar text to article 46 is found across multiple United Nations documents and has been invoked by the SCC to pour cold water on Quebec’s claims to sovereignty under international law.¹¹⁸ The article could thus be seen to give justification for the SCC’s strict approach to section 35 rights implicating the border. Read in conjunction with the other articles, however, there is a strong case to be made that the UNDRIP’s principles of consent and increased dialogue support a proactive and robust transnational consultation framework that takes Indigenous legal perspectives into account. Additionally, the SCC’s comments on Indigenous peoples deserving their own territorial integrity supports this as well.¹¹⁹

Conclusion

When it comes to Canada’s borders, it appears much of the reconciling is left to the efforts of Indigenous nations. While the SCC may frame its limited approach to cross-border consultation as a mainly logistical one, previous jurisprudence limiting section 35 rights that implicate sovereignty and territorial integrity reveals in part why Desautel retreated so far from the framework in Haida. In weakening consultation and accommodation obligations, refusing to meaningfully address past consultation failures, and reversing the onus on cross-border communities, the SCC has strayed from principles of a consent-based nation-to-nation relationship at the core of an emerging form of reconciliation. Exploring the unique challenges facing the Peskotomuhkati nation provides tangible examples of how the current transnational consultation framework is unsatisfactory in addressing imminent issues. The problems inherent in the SCC’s approach are applicable to numerous nations whose territory is split by the border. Unfortunately, it appears the current doctrine will continue to exclude nations that have already been excluded for generations.

BIBLIOGRAPHY

JURISPRUDENCE

Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73.

Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69.

Mitchell v MNR, 2001 SCC 33.

Reference re Secession of Quebec, [1998] 2 SCR 217.

Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43.

R v Desautel, 2021 SCC 17.

R v Desautel, 2021 SCC 17 (Factum of the Intervenor, Peskotomuhkati Nation).

R v Paul and Paul, (1987) 80 NBR (2d) 1 (NBKB).

Simon v The Queen, [1985] 2 SCR 387.

Written Submission from the Passamaquoddy Recognition Group Inc in the Matter of the Application for the Renewal of NB Power’s Licence for the Point Lepreau Nuclear Generating Station (4 April 2022), Edocs 6769941 (Canadian Nuclear Safety Commission).

LEGISLATION

Canadian Charter of Rights and Freedoms, s 25(a), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

Declaration on the Rights of Indigenous Peoples Act, SBC 2019, c 44.

United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14.

SECONDARY SOURCES

Peer-Reviewed Articles

Gover, Kristy, “Legal Pluralism and Indigenous Legal Traditions” in Paul Schiff Berman, ed, Oxford Handbook of Global Legal Pluralism (Oxford: Oxford University Press, 2020) 847.

McNeil, Kent & Kerry Wilkins, “Welcome Home: Aboriginal Rights Law after Desautel”(2022) 59:3 Osgoode Hall LJ 553.

Michelle, Natalie, “Resiliency Through Food Security of a Coastal Culture: the Peskotomuhkati” (PhD Dissertation, University of Maine, 2021).

Nicholas, Andrea Bear, “Mascarene’s Treaty of 1725” (1994) 34:3 UNBLJ 3.

Paterson, John MR, “The Maine Indian Land Claim Settlement: A Personal Recollection” (2012) 46:2 Maine History 195.

Singleton, Sara, “‘Not Our Borders’: Indigenous People and the Struggle to Maintain Shared Cultures and Polities in the Post-9/11 United States” (2008) 23:3 J Borderland Studies 39.

Wicken, William, “Passamaquoddy Identity and the Marshall Decision” in Stephen J Hornsby & John G Reid, eds, New England and the Maritime Provinces: Connections and Comparisons (Montreal: McGill-Queen’s University Press, 2005) 50.

Peer-Reviewed Books

Anderson, Malcolm, “Frontiers: Territories and State Formation in the Modern World” (Cambridge: Polity Press, 1996).

Simpson, Audra, “Mohawk Interruptus: Political Life Across the Borders of Settler States” (Durham: Duke University Press, 2014).

Reports & Other Media

Bassett, Edward, “Cultural Importance of River Herring to the Passamaquoddy People” (Sipayik Environmental Department of the Passamaquoddy Tribe, September 2014).

Canadian Nuclear Safety Commission, “The Commission” (20 December 2021), online.

“Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada”, (Ottawa: Truth and Reconciliation Commission of Canada, 2015).

Natural Resources and Energy Development New Brunswick, “Provinces Release Strategic Plan on Small Modular Reactors” (29 March 2022), online.

NB Debrief, “The Peskotomuhkati and State Recognition in Canada” (7 July 2021) at 12m:04s, online (video): YouTube.

Smith, Connell, “The Passamaquoddy People Could be Close to Gaining Recognition in Canada” CBC News (28 February 2020), online.

“Webcast of the Hearing on 2020-10-08: Her Majesty the Queen v. Richard Lee Desautel” (8 October 2020) at 03h:29m:40s, online (video): Supreme Court of Canada.

Yellowhead Institute, “Three Frameworks of Consent” (Yellowhead Institute, 2019).

Endnotes