Let’s all do the Limbo!

Without Prejudice agreements

Some legal jargon seems to go viral.  “Without Prejudice” is definitely one of those viral terms.  You will see it slapped up there across emails, documents, agreements…like some sort of ‘keep-the-court-at-bay’ incantation that people mumble without even really thinking about it anymore.

In essence, the concept of “Without Prejudice” is that whatever it is you’ve written or discussed cannot be used in court.  If you research the term and its history you’ll see there are loads of opinions on the purpose of this protection, but I tend to go with the notion that it’s there to allow a free discussion between parties who have some sort of disagreement.  It allows you to talk about things without admitting to facts or guilt or worrying about saying something that will hang you if the issue ends up in court.  You sit at the table and you hammer out details and maybe you scream at each other a little, but it’s ‘safe place to talk’, whether you do the talking face to face or within the space of a piece of paper.

“Without Prejudice” is not an absolute protection and there are all sorts of ways that it won’t actually protect you, but that’s not really the point of this section.  (Although I do think it’s rather hilarious that it has become such a reflex addition that practitioners will, on occasion, attempt to file a court document with “Without Prejudice” splayed across the top.)  What I want to draw your attention to instead are a new breed of negotiated agreements between the Crown and native peoples.

Without Prejudice agreements can be fantastic when they are some sort of formal commitment between the parties to engage in a process of negotiating long-standing issues like how Aboriginal rights are going to be specifically exercised in a particular area.  The Mi’kmaq-Nova Scotia-Canada Framework Agreement is an example of this.  The idea is that Canada isn’t going to worry about whether or not the Mi’kmaq have actually proven they have specific Aboriginal rights, but they aren’t going to agree either that the Mi’kmaq do have such rights.  All of that is put aside, and a variety of practical areas are put on the table for discussion so that immediate issues and problems can be dealt with in a timely manner.  This avoids the decades-long court process of proving rights first, then planning implementation after.

Where these Without Prejudice agreements fail, in my opinion, is when they go beyond being temporary measures meant to address immediate, specific problems, and end up spanning a decade or more.  Why does that bother me?

Imagine this situation.  You’ve got a First Nation asserting the right to a traditional hunting territory on a particular river.  That river is a also a hotbed of commercial fishing by non-natives who have all sorts of licenses granted to them by the government in order to haul fish out.  The First Nation would like a commercial fishery too, but they know they’d be raked over the coals financially and in terms of time if they wanted to prove an Aboriginal right to commercial fishing in court.  The community knows damn well it used to trade fish long before Europeans arrived, but the mountains of evidence required to establish the existence of such a right is daunting.  They need in NOW because as it stands, they have next to no access anymore.

So this First Nation approaches the Minister in question and requests a meeting.  They are hugely lucky and end up getting into a negotiation over access.  The Crown pushes over a piece of paper that says this:

This Agreement is without prejudice to the First Nation’s Aboriginal or Treaty rights … and shall not be construed as admissions of fact or liability.

This Agreement is deemed not to recognize, deny, create, define, alter or affect the First Nation’s Aboriginal or Treaty rights.

Now, this protects the First Nation from signing onto an agreement that could end up extinguishing their rights.  They aren’t agreeing to be forever limited by whatever negotiated fishing regime that ends up being applied, and they aren’t agreeing to be forever bound.  This also protects Canada because Canada isn’t admitting the First Nation has any rights (they aren’t denying it either).

The First Nation gets a small cut of the commercial fishery without having to prove it has Aboriginal rights and the Crown doesn’t have to go to court saying no Aboriginal rights exist.  Except as years pass by, the First Nation is fishing without officially exercising their Aboriginal rights.  They are exercising their right to fish as granted under the Without Prejudice agreement.

If you have a First Nation sitting there in a rights limbo for a decade, two decades…at what point would the courts eventually say, “look you’ve accepted this arrangement, the arrangement creates certainty and balances your rights against the rights of non-natives, and you haven’t really exercised your Aboriginal right in 15 years or so.  I think we can safely say that whatever rights you may have had are no longer exercisable beyond the current regime you are a part of.  Thank you, and please tip the clerk on the way out.”

Canada!  The Honour of the Crown is not well served by creating these limbo-agreements that stretch on for freaking ever!  Stop putting off the real discussions that need to happen before there can actually be a healthy and respectful relationship between you and the various indigenous nations in Canada!  The issue of Aboriginal rights is not going to go away.

If I were even more cynical (I am), I’d worry about this: although not exercising a right does not mean that right is extinguished, it can allow a ‘legitimate’ regime to be built up that has been created with the consultation of the First Nation in question even if the Without Prejudice agreement says that the agreement shouldn’t be seen as ‘consultation for the purposes of infringement’.  I’d worry that if this is not the purpose of these agreements, then it is at least a happy side-effect for the Crown.

The problem is, you start asking practitioners about this, and you soon realise that they have no freaking real idea what these Without Prejudice agreements mean for Aboriginal rights down the line, and that scares me.

Many of these agreements are entered into a stop-gap measures.  Like in the hypothetical I provided earlier, sometimes communities sign on to agreements that are not all that wonderful because the only other option at that point is to not sign and be cut out of the harvest entirely.  They sign on for a year or two, needing and wanting to negotiate something more substantial, but somehow the agreements just keep getting renewed and the real issue of Aboriginal rights is never addressed.  You see this a lot in the post-Marshall agreements in particular.

So what should we do instead?

I like a multi-faceted approach.  My boss likes to say that lightning will not come out of the sky and strike you down for creating your own laws.  The Listuguj Mi’gmaq are proof of this.

Back in 1981, the Canadian state engaged in a particularly brutal show of force on the Listuguj reserve over access to salmon.  Having police officers beating your neighbours down out of the blue sure does something for your sense of cohesion and political awareness.  After this traumatic experience, Listuguj decided to take control of its own fisheries, implementing laws and training local people to manage the salmon stocks.

A report on this exercise of Aboriginal rights and of indigenous legal authority has recently been released, and believe me, it’s no snoozer.  You can check it out here (PDF).

The Listuguj Mi’gmaq are exercising their Aboriginal rights, not just setting them aside for now.  They aren’t the only ones doing this, either.

I’d like to see some real Treaty making.  I discussed this in my last post.  Not like the “Modern Treaty” process that continues to take an unequal, colonial approach regardless of the claims to the contrary.  Stop telling us we aren’t ready to do things like manage a fishery.  Hey, Department of Fisheries and Oceans!  You don’t exactly have a stellar track record from which to look down your noses at us.

Time to move beyond Without Prejudice

Whew, I’m veering into rant mode, and that’s not going to get me anywhere.  Let’s just say that I think we need to start addressing what these long-term Without Prejudice agreements mean both in terms of their impact on the exercise of Aboriginal rights down the line, but more importantly in terms of what kind of relationship Canada actually wants to have with native peoples.

We know that the bulk of recommendations provided by the Royal Commission on Aboriginal Peoples (RCAP) were never implemented.  I’d link to those recommendations btw, except they aren’t currently available on the website.  I’m hoping that’s temporary.  Anyway, the RCAP talked about a 20 year commitment to creating a new relationship.  Tick, tock…15 years have gone by already.

Without Prejudice agreements are great if they are a stepping stone towards something better, but we got stalled somewhere along the way and the incantation is losing its power.