This factum focuses on the first part of the analysis of Section 35(1) of the Constitution Act.[1]The analytic framework draws mostly from Van Der Peet,[2] and the relevant legislation in Ontario’s Forestry Act.[3] In order to establish an Aboriginal right, the activity must be an element of a practice, custom, or tradition integral to the distinctive culture of Ninaatig First Nation (“NFN”).[4]

Characterization of the Aboriginal right?

First, the nature of the practice in question derives from the practice of collecting maple sap and processing it to create maple syrup for the purpose of subsistence and trade. Consistent with the norms of mutual aid, trade was integral for the interdependence between communities of First Nations’ people. The distinct roles and specialization in survival goods among different First Nation has been a longstanding practice prior to European contact, and the specialization among First Nations of producing syrup is distinctive to NFN.

Second, the nature of Forestry Act is regulating the extraction and commerce of tree products. Preserving a natural resource would be a valid legislative objective as conservation benefits all communities. Flowing from this objective is ensuring the fair access to syrup among the population through a system of licensing. In short, nobody has a right to extract and trade tree products without first attaining approval.

Third, the nature of the modern activity by the NFN can be a source of contention. To be clear, the modern practice is extracting birch sap through modern means, selling it and making excess profit; this is inspired by the historical practice of extracting syrup and trading it for survival goods. While the practice has evolved, the corresponding right has remained substantively the same. Nevertheless, the scope of the Aboriginal right must be expanded to accommodate the modern practice, and this expansion can be contentious.  

Integral to the distinctive culture?

Let us now turn to the question of whether the practice is integral to the distinctive culture. Even by the highest jurisprudential standards for a practice being integral, we can see there was no alternative available to the NFN to extracting sap for surviving the winters. Minimally, the general practice of extracting sap existed prior to European contact. This practice was crucial for the survival of winters as it provided a source of sustenance as well as a commodity to trade for other items needed for survival. The NFN’s identity is tied to this practice as it was necessary for their existence since the syrup was tied to their survival in the winter.

The current practice does not have the same significance of survival or basic subsistence, but survival need not be the threshold for a practice being integral. The syrup presently provides the basis of funding subsistence and promoting the wellbeing of the society.  Additionally, the central significance of the syrup is to meet the needs of the community and there is no intrinsic significance in the type of syrup, the mode of extraction, or the amount that was traded. The syrup has always been instrumentalized as a commodity to meet the needs of their own community members. In modern times, a step is added of commodifying the syrup into the contemporary currency system and this currency is used to meet the needs of the community.

While there is no pan-indigenous approach, the rationale or the normative order common to many indigenous perspectives must inform our justificatory analysis. The NFN’s governance procedures uphold mutual aid and kinship relationship with the birch trees. For example, the birch trees are not sparse but there is a substantial grove, and this was clearly a factor in the NFN’s decision. The mode in which the Forest Act’s uses to achieve the end of conservation is licensing. There is a shared objective of conservation.

However, the Forest Act derives from a liberal perspective which assumes that actors are egoistic and must be constrained from violating the rights of others. This assumption does not hold throughout indigenous perspectives. If it is not true that individual actors are self-interested and would not, say, extract sap for their own benefit to the point of harming the tree or harming others who are dependent on the sap, then we can question why licensing would be an effective mode of conservation. If we instead consider that actors respect the interdependence of humans with natural resources, then a scheme of licensing would be largely superfluous. In this vein, from the indigenous perspective, the analogous right to extract tree products is limited insofar as it continues to preserve the kinship with the natural world; as soon as it becomes overly harmful to the natural world, indigenous norms would put an end to the extract of sap.

The indigenous perspective may not have the strict empirical approach to conservation that is common with western epistemologies. Instead, the relationship of mutual aid with the natural world may allow a higher degree of extraction for periods of higher need, such as the need for a long-term care facility. While western perspectives may be more sensitives to exact thresholds, boundaries, and numerical figures, as per the licensing process, the indigenous approach can be more flexible and permissive depending on the circumstances. This is consistent with the relaxed rules of evidence, not only in terms of the onus of historical evidence, but also for establishing measures of conservation and markers for establishing harmony with the natural world.

In response, Ontario government may raise several arguments that the practice is not distinctive or integral to the NFN. First, the NFN only restarted the practice when they wanted to raise money. The fact that the NFN was not engaging in the practice to meet their general subsistence needs suggests that this is not integral to NFN culture and only incidental. Second, integrality can be challenged on the basis that there is no significance of extracting sap to survive winters in modern times because surviving winter is no longer an issue for the NFN.

Next, a possibly stronger thread of arguments can be launched for challenging the distinctiveness of the practice. The modern-day NFN practice uses industrial equipment and online trading, which is only due to European influence. Ontario may allow the practice as it existed without technology, but the modern evolution of the practice has become diluted by European influence. Separately, Ontario can argue that extracting syrup is not a distinctive practice since many cultures extra syrup; more generally, all cultures use resources around them to facilitate trade and survive harsh conditions, so there is nothing that separates the NFN’s practice from the European industrial practice of chopping down trees.

In the alternative, a more modest challenge would be against the excess profit reserved for the long-term facility. The Aboriginal right is extraction for survival, full-stop, although some limited forms of trade are permissible. The right does not cover wellbeing through commercial profit. If NFN wanted commercial profit, they should have applied for a license consistent with the Forest Act, as per the rule of law and Canadian sovereignty. More specifically, attaining something beyond one’s rights is unjust enrichment and they must return their excess profits to Ontario.

Continuity?

Let us shift to analyzing whether there is a reasonable degree of continuity between the pre-contact practice and the modern practice. Granted, the NFN are not collecting the same type of sap as the traditionally did as birch was not on the land then. Arguably the type of tree is irrelevant for the purpose of the act since it serves the same function and does not change the practice in any meaningful way. Moreover, but-for the modern effects of climate change, the NFN would have continued to produce maple instead of birch syrup. Aboriginal rights must be interpreted flexibly in its contemporary context.

The modern practice has evolved logically to incorporate technological advances. The new methods are more efficient by saving time and labour, but it is not clear that this changes the core of the practice. There were no traditional limitations placed on the amount of sap extracted, and any limitations were either a result of time and labour constraints or through principles of caring for the natural world. These considerations, along with other adverse consequences to affected parties, were already contemplated by NFN’s internal policies.

The modern practice has a broader commercial use and moved away from personal use. Traditionally, the NFN kept a percentage of the syrup for their own personal use and traded the rest in order to acquire the goods to survive winter. Still, the variance in the ratio of what was kept versus what was sold suggests that the syrup is a mere instrumentalized commodity and keeping some portion is not traditionally significant. However, the commodification and trading of the syrup remains essential since the NFN would not have survived without the goods from other First Nations. What is significant is that there is still the shared general purpose of using the proceeds of syrup for subsistence—namely, for food and basic living expenses.

Granted, this is possibly different from the additional monies used for the long-term care facility, as the purpose expands from subsistence to the wellbeing of the community and the needs of community members; nevertheless, the additional profit aimed at caring for the elders through the new facility is defensible. The extended scope of the use of the monies from the commercial production of syrup is consistent with the interest of all Canadians and the aims of reconciliation. NFN laws are governance procedures are an exercise of sovereign authority, and Canada musts respect indigenous self-determination and the right of self-governance. The NFN nation assessed the impact of this modern activity through the governance procedures, and Aboriginal rights inherently exists through indigenous legal orders. Moreover, the long-term care facility promotes the social and cultural wellbeing of the NFN and this is a partial step towards reconciliation with indigenous peoples. It is crucial to show deference to internal governance procedures, especially since they are sensitive to the shared objective of conservation.

Ontario may respond that the modern practice expands Aboriginal rights to an unacceptable degree. The claim can become too general if we allow it to turn from extracting syrup from maple trees to any kind of trees. Allowing NFN to broaden the scope of their right could open the floodgates and allow NFN to eliminate all potential access to non-Aboriginal right holders.

Even if we grant that extracting sap is a protected Aboriginal right, the extraction of sap for commercial practices are incidental and is too remote from the original practice. In other words, there is no logical continuity from the pre-European practice to NFN’s current practice. Modern commercial practices of selling syrup online bears no resemblance to the purpose of surviving the winter, and the dimension of retaining some for personal use has dissipated. We may permit small scale trades or transactions as was the case prior to European contact, but selling online for hundreds of thousands in excess profits goes well beyond what was contemplated.

In the alternative, Ontario may again focus their challenge to the excess profits for the facility. The Aboriginal right may be defensible even with the expanded use of modern technology but only insofar as it is used to meet basic needs of subsistence. Additional proceeds must be returned as it is beyond the scope of subsistence.

Which argument is more persuasive for courts?

Interpretations must be generous and liberal, consistent with the Crown’s fiduciary duty and any “doubt or ambiguity must be resolved in favour of aboriginal peoples.”[5] Courts are likely to side with NFN’s argument because environmental protection is a shared objective with the NFN community.

Ontario’s strongest argument is against the excess funds being considered for the facility. Notably, courts leave open the possibility of expanding the scope of Aboriginal rights beyond land claims, which suggests that wellbeing or health can in principle be protected. But it is more likely that courts will defer to NFN governance procedures to facilitate reconciliation.

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[1] Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[2] R v Van der Peet, [1996] 2 SCR 507 [Van Der Peet].

[3] Forestry Act, R.S.O. 1990, c. F.26.

[4] Van Der Peet, supra note 2 at para 46.

[5] Van Der Peet, supra note 2 at para 23.