Chapter 14: Aboriginal Peoples and the Constitution

Table of Contents

Chapter 14: Aboriginal Peoples and the Constitution

Guerin v The Queen

R v Sparrow

R v Van Der Peet

R v Gladstone

Delgamuukw v British Columbia

R v Marshall

R v Powley

Delgamuukw

R v Pamajewon

Mitchell v Canada (Minister of National Revenue)

Tsilhqot’in Nation v British Columbia

Grassy Narrows v Ontario

Beckman v Little Salmon/Carmacks First Nation

Daniels v Canada (Indian Affairs and Northern Development)

Chapter 15: Antecedents of the Charter

Roncarelli v Duplessis

Union Colliery v Bryden

Cunningham v Homma

Quong Wing v R

Re Alberta Statutes

Saumur v Quebec (City of)

Switzman v Elbling

Dupond v City of Montreal

Chapter 16: The Advent of the Charter

Vriend v Alberta

Chapter 17: The Framework of the Charter

Hunter v Southam

R v Nova Scotia Pharmaceutical Society

Oakes v R

Edmonton Journal v Alberta AG

Irwin Toy v Quebec AG

Ford v Quebec AG

Chapter 18: Application

Local 580 v Dolphin Delivery

McKinney v University of Guelph

Godbout v Longueuil (City)

Eldridge v British Columbia AG

Vriend

Hill v Church of Scientology of Toronto

Chapter 19: Freedom of Religion

Big M Drug Mart

Edwards Books and Art Ltd v The Queen

Syndicat Northcrest v Amselem

Lafontaine

Alberta v Hutterian Bretheren

TWU v BC Teachers

Zylberberg v Sudbury Board of Education (Director)

Chamberlain v Surrey School District No 36

Adler v Ontario

Loyola High School v Quebec AG

Bruker v Marcovitz

Chapter 20: Freedom of Expression

Keegstra

Dolphin Delivery

Irwin Toy v Quebec (AG)

RJR MacDonald v Canada (AG)

JTI MacDonald

Guignard

Keegstra

Whatcott

Butler

Labaye

Harper

Montreal v 2952

Haig

NWAC

Baier

Chapter 21: Freedom of Association

Dunmore

Health Services and Support

Advance Cutting and Coring

SK Fed of Labor

Chapter 22: Life, Liberty, and Security of the Person

BC Motor Vehicle Reference

Morgentaler

Rodriguez

Carter

Children’s Aid

Gosselin

Chaoulli

PHS

Bedford

Chapter 23: Equality Rights

Andrews

Law v Canada

Kapp

Eldridge

Auton

Corbiere

Hodge

Auton

M v H

Chapter 24: Language Rights

AG Quebec v Blaikie

Societes des Acadiens v Association of Parents

Mahe v Alberta

Ford

Chapter 25: Enforcement of Rights

Schachter

Vriend

M v H

Hislop

Little Sisters

Doucet-Boudreau v Nova Scotia

Chapter 14: Aboriginal Peoples and the Constitution

Background

Terms: Aboriginal (sometimes First Nations), Indians, Inuit, and Metis (these are legal terms used in the Constitution and the Indian Act).

Diverse backgrounds, languages, traditions (including legal traditions)

Where does recognition of Aboriginal rights come from? Sources of rights

Royal Proclamation 1763
Common law – settled, complied
1982 Constitution: section 25 & 35 enshrined in constitution
Treaties – Edmonton on Treaty 6. If you’re covered by the treaty, you get the rights. If you’re not covered, you don’t. Written in English which many Aboriginals couldn’t read. Or there were oral terms that never made it into the written document.

Page 548: case of Connolly v Woolrich: Was marriage of English subject to Cree woman valid even though solemnized under Cree law but not English (or French) law? Ans. Yes.

Marries her, moves in, has kids, then moves back to Quebec and marries someone else under English law. Has kids in second marriage. Who gets to inherit? Cree woman’s kids claim they’re as legitimate as the English woman’s. Court of Quebec recognized that marriage.

American side, Indian tribes were seen as being pro British. American government started pushing them out west. Andrew Jackson – President responsible. Marshall starts very sympathetic and holds up Aboriginal rights. But if you want to keep legitimacy of court, you bend (if the President did not abide, how could you expect normal people too?).

Royal Proclamation says when English came (after they defeated the French), the King issues a proclamation saying they’re taking over. But we recognize that there are people already there and they have their rights and that will continue.

Guerin v The Queen

R
F / Federal government had negotiated, on behalf of Musqueam Indian Band, a lease with a golf company. What the federal government told the band turned out not to be what was in the lease (less favorable for band). The band sued the federal government for damages.
I / Whether the band can sue the federal Crown for not taking good care of the band’s land, or in this case not negotiating a proper lease?
J / Yes. In obtaining without consultation a much less valuable lease than promised, the Crown breached the fiduciary obligation it owed to the Band.
R /

When Indian bans surrendered their lands to the Crown two centuries ago, this imposed on the federal government a sui generis (brand new category, category in itself) fiduciary obligation to hold the land/property in trust.Law of equity.
Government did not do a good job negotiating a deal. The money the band ended up getting was drastically different than what Crown had said it would be.
SCC Justice Dickson: True there was conflict. When the feds assumed management of the land, they didn’t just assume it, they took on the role of the fiduciary.

Where does this duty come from?

Royal Proclamation 1763 – see discussion on pp. 552-53 of US CJ Marshall.
Section 18(1) Indian Act.
Aboriginals have a “personal and usufructuary right” to the lands they traditionally occupied.
They can occupy the land but not sell it. Why? Ultimately Crown is holding it for their benefit.

The court found that the federal government had breached its fiduciary duty when negotiating the lease and ordered the payment of damages.

R v Sparrow

R
F / Member of Musqueam band was fishing using net longer than allowed by Fisheries Act. He did not deny the facts or the charge but claimed it his existing Aboriginal right under 35(1) of 1982 Constitution Act.
I / Whether the length of the net requirement a violation of 35(1)?
J / Yes.
R /

Charter Section 35. (1) The existing (all rights pre- 1982 are enshrined, the ones that are still there, not the ones that have been extinguished)aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
Since, the right to fish was always a right, and this right was not extinguished before 1982, the right to fish continues.Musqueam have been fishing for centuries.
Right must be read broadly. Fishing as a broad concept. Not like in 1800’s you only fished for carp so now you only fish for carp. Or different technology. Still reading in very historical concept.
No clear evidence of extinguishment of right to fish. No one tried to extinguish that right
Government can regulate fishing but within rights established under 35(1).
Sparrow Test for whether right has been infringed on 568:

Is limitation reasonable?
Does regulation impose undue hardship?
Does regulation prevent right-holder preferred means of exercising that right?

Sparrow test for when regulation is justified on 568-70:

Is there valid legislative objective?
Whether top priority is given to aboriginals (say to allow them to fish enough for food or ceremonial purposes) when considering regulation? Suggests conservation would be a secondary reason for why they were fishing
Has there been as little infringement of rights as possible (or proper compensation)? Require compensation if the legislation was like no more fishing at all.
Aboriginal groups should be consulted. If you haven’t done these four things then regulation isn’t justified.

Given that there is a prima facie showing of infringement of 35(1) rights, onus is on Crown to show justification. Not enough evidence was presented, so SCC remanded and ordered a new trial on the merits of the justification.

R v Van Der Peet

R / In order to be an aboriginal right under 35(1) an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right.
F / Accused charged with selling fish that she caught using a license that authorizes aboriginals (Sto:lo nation) to fish for food. Accused claims that she has a right to catch fish and to sell them commercially as well.
I / Whether 35(1) rights extend to selling fish.
J / No – selling fish wasn’t part of the Sto:lo culture historically
R / Ten part test for how to decided specific cultural claims (pp. 576-582):

Courts must take into account the perspective of Aboriginal peoples themselves.
Courts must identify precisely the nature of the claim being made in determining whether an Aboriginal claimant has demonstrated the existence of an Aboriginal right/custom being relied upon.
In order to be integral a practice, custom or tradition must be of central significance to the Aboriginal society in question (significant part of culture).
The practices, customs and traditions which constitute Aboriginal rights are those which have continuity with the practices, customs and traditions that existed prior to contact.
Courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating Aboriginal claims. Oral traditions will be considered. Administrative tribunals, rules of evidence don’t apply. Concession isn’t a big deal but because it’s in Court it is a big deal. Why not do it not through court? A land claims process. Some places have it but they’re equally slow and ineffective.
Claims to Aboriginal rights must be adjudicated on a specific rather than general basis. Culture by culture, practice by practice.
For a practice, custom or tradition to constitute an Aboriginal right it must be of independent significance to the Aboriginal culture in which it exists.
The integral to a distinctive culture test requires that a practice, custom or tradition be distinctive; it does not require that that practice, custom or tradition be distinct.
The influence of European culture will only be relevant to the inquiry if it is demonstrated that the practice, custom or tradition is only integral because of that influence.
Courts must take into account both the relationship of Aboriginal peoples to the land and the distinctive societies and cultures of Aboriginal peoples.

Did court freeze their rights contrary to what Sparrow held?Maybe yes?

R v Gladstone

R
F / Member of Heiltsuk Nation was selling fish. They argued that commercial fishing was historically part of their tradition.
I / Whether they could sell fish?
J / Yes.
R / Conviction overturned and sent back to determine justification is valid. The court modified part of Sparrow to allow conservation to justify infringement on commercial fishing. Conservation might trump historical rights.

Delgamuukw v British Columbia

R / Only federal government can extinguish aboriginal title

Aboriginal title is inalienable to anyone but the Crown, it arises before sovereignty, and it is held communally.
Lays out the test to establish aboriginal title.
Lays out the test for infringement of aboriginal title.

F / Gitskan and Wet’suwet’en chiefs individually and on behalf of their “Houses” brought claims to large tracts of land in BC on basis that Aboriginal title was never extinguished. The claims were for ownership and jurisdiction over the land but changed to “aboriginal title and self government”.
I / Various issues were raised in this case – see next column.
J / Appeal allowed in part, new trial ordered.
R /

Use of Oral evidence and effect on trial judge’s finding: SCC held that the plaintiffs could use oral histories as evidence. This meant that a new trial had to be ordered. (Trial judge said no to oral evidence, trial judge said no fact of land claim. To overturn you must find legal error, here error was exclusion of legal traditions. Controls of who could speak (use of experts)).
Content of aboriginal title: different from fee simple; sui generis. Can understand it from common law perspective and aboriginal perspective.
Common law: inalienable, source (before Royal proclamation 1763 by fact Aboriginal peoples were here prior to Western contact); communal;
Content of aboriginal title not restricted to traditional usages.
Usage of land must be in context of how specific group views their relationship (of particular band) with their land; e.g. hunting, fishing etc. If they were settled they were more conservationist. If they were more nomadic they would take what they can.
Aboriginal title is distinct (a subset) of aboriginal rights.
Proof of title: 1) prior occupation of land; prior social organization on the land; 2) continuous; and 3) exclusive (page 604) sounds like fee simple
If only partially satisfies test then can make a claim less than title
Infringement Test: can occur when: it’s in furtherance of a legislative objective that is compelling and substantial, and infringement is consistent with special relationship between Aboriginals and Canada
Prior occupation: at the time the Crown asserted authority over land.
Occupation can be proved by construction of dwellings; enclosure of fields; regular use of land for hunting, fishing, or other exploitation of resources;
Exclusive can also recognize joint-ownership.
Fiduciary duty of crown; duty to consult

R v Marshall

R / Aborginal treaty rights may offer a justification against offences of provincial jurisdiction.
F / Marshall, a Mi’kmaq citizen, was caught fishing eels out of season and selling them for a profit (without a license) and charged with violation of Fisheries Act. Argued that he was trying to catch and sell eels to support himself and spouse and that Indians were entitled to do so according to a right in a treaty. At issue was a trade clause in the treaty in which the Mi’kmaq promised not to trade with non-government individuals. The trial judge concluded that the only enforceable treaty obligations were those set out in this 1760 treaty, and while the trade clause gave the Mi'kmaq "the right to bring the products of their hunting, fishing and gathering to a truckhouse to trade", such right had disappeared with the disuse of the truckhouse system. The Nova Scotia Court of Appeal upheld the conviction.
I / Whether the 1760 Treaty between British Crown and Mi’kmaq allowed to sell eels? Written treaty only mentioned trading through truckhouse (trading post) which fell into disuse.
J
R / Background: hundreds of treaties between the British (and then Canadian) Crown and First Nations.
Honor of the Crown – treaty interpretation must be preserve integrity of the Crown, so no sharp dealing. Ambiguities about Treaties construed in favor of Aboriginal signatory. Any claim of extinguishment or right in treaty requires strong evidence of clear and plain intention of extinguishment.

Written treaty referred to prohibition on trading except with official truckhouse.
SCC looked at extrinsic evidence to understand treaty.

Treaty was signed with understanding that the Mi’kmaq were allowed to trade. The truckhouses were supposed to be established and run by Crown.

Court reviews history of the 1760 treaty negotiations (pages 618-621): concludes that trading was essential to the background of treaty.
Right to fish was seen as unlimited and prerequisite for trading.

Honor of Crown requires honoring right to fish. Honor of Crown says negotiation were done state to state level (Mikmak and British Crown). This isn’t like Safeway and Wal-Mart. This is the British Crown. Crown is not a sleazy merchant as Wal-Mart is. Crown isn’t out to nickel and dime people, there’s an honor. Honor requires to honor the rights you have enshrined in that treaty in the sense it was back then. If you had no issues with commercial fishing then the honorable thing to do is honor those commitments.
Can give a motion to reconsider. SCC usually won’t. But you can use it to buy extra time. Seldom works. No one remembers the SCC ever reconsidering. This is the closest. They didn’t formally do it. But they issued a supplementary decision clarifying.

SCC dismissed conservation concerns.
Marshall was acquitted.
After release of decision, clashes broke out between Aboriginal and non-Aboriginal fishers in NS and NB.

The SCC issued a clarification of its decision emphasizing the role of conservation (just as in Gladstone).

Duty to Consult

Honor of Crown implies duty to consult First Nation when their land is affected by third-party or government regulation.
If you are going to go through land that is explicitly owned (clear Aboriginal title), treaty land, or land with a potential claim, then one of the things you have to do is consult the very people you’re going through. Not obligation of company, Crown itself is obliged.

R v Powley

R / When applying the Van Der Peet test to Métis claimants, the claimant must demonstrate:

there was a historic Métis community in the area,
there is a contemporary community that continues from the historic community, and
he or she is a member of the contemporary community by showing that he or she has a demonstrable ancestral connection to the historic community.

The appropriate time to look for the integral right is the time just prior to the time of European control over politics and law in the area.
F / Father and son shot and killed a bull moose in ON. Moose hunting in ON is strictly regulated and the Powley’s did not have a hunting license. They claimed that as Metis they had an Aboriginal right to hunt for food in the area and therefore the regulations were invalid as they were in violation of s 35(2).
I / Whether the Métis had a right to hunt?
J / Yes
R / SCC used a modified Van der Peet test, as emphasis on pre-contact practices doesn’t work here.

Why? Métis, by definition, practices emerge after contact.
SCC found that there was a community in northern Ontario that had this practice that is still present today.
SCC found that accuseds were members of that community (raises questions of how to identify who is a Métis: 1) self-identification; 2) ancestral connection to historical Métis community; and 3) acceptance by modern community)
SCC found hunting was integral to Métis way of life in Northern Ontario.
No valid conservation justification.
SCC upheld acquittal.

Delgamuukw

R
F
I / Can a province extinguish aboriginal title prior to 198?
J / No
R / 91(24) gives authority to federal government.
Provinces can pass general legislation but not specific to Aboriginal land.