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Constitutional Final Outline - Waterman

ABORIGINAL LAW

Basic Facts

  • 11 or 12 Indigenous language families
  • 1M+ people of Aboriginal ancestry in Canada today
  • S35(2) of our Constitution uses the term “the Aboriginal peoples” of Canada, which includes “Indians, Inuits, Métis”
  • 700,000+ status Indians and 200,000+ non-status Indians (same ancestry)
  • 50,000+ Inuit (no status/non-status distinction, people of the circumpolar north)
  • Métis has two meanings: culture that arose near Red River post-contact but prior to European control of the Prairies and people with a particular ethnogenesis (typically people with one Aboriginal parent and one non-native settler parent)
  • When large groups of Europeans settled, so many Aboriginal people had died that they thought this was an empty place – these people did not fade away; now there’s a real renaissance of Indigenous peoples

Indigenous Constitutions

  • Indigenous constitution law relies and draws upon unwritten traditions:
  • Sacred
  • Natural environmental
  • Deliberation
  • Positivistic laws
  • Customary laws
  • An Indigenous constitution is a way of living, is a covenant between humans and the sky, water, rocks, insects, birds, plants, animals, spirits, past, present, and future generations
  • Creating written constitutions creates responsibility, reinforces unwritten traditions, enhances citizenship and identity, can reinforce sovereignty and law, to encourage sustainable development, to facilitate external relationships, to improve decision-making, to create a predictable framework for future action, etc

Key Points

  • Professor Borrows argues that we have “Ab-originalism” in Aboriginal law in Canada, while we have the living tree for the rest of our law – not cool
  • With Canadian constitutionalism, a morally and politically defensible interpretation of Aboriginal rights will incorporate both perspectives: Indigenous legal traditions and the common law. (SCC’s aspiration and Prof. Borrows’ argument)
  • "Aboriginal law" = law of the state dealing with Aboriginal peoples
  • "Indigenous law" = the authorities that come from Indigenous groups/legal traditions
  • Can’t argue adverse possession (if you’re there for 20 years as a user of land you can apply to have it recognized as yours) because it requires “quiet enjoyment” and Indians have been arguing all the way along that this land is theirs
  • No real treaties in BC because political leadership at first thought Indians were way too inferior to participate in the transfer of land, and by the time they decided to make treaties they didn’t want to raise the money/thought it had become too expensive (this is by the 1870s)

1867-1973: Legal Exclusion

  • The passage of the Indian Act in 1876 was a blatant and purposeful attempt to assimilate Indians; to get rid of Indians by changing how they relate to land, their governance, the Canadian state, etc
  • Indigenous groups can’t get much done without the approval from the federal government, and Indian agents hold a lots of power – makes it difficult to set their own agendas
  • Historically, Canadian federal government has said that First Nations groups only have the authority that they have delegated to them
  • Indians couldn’t vote federally until 1960, religious practices and economic pursuits were outlawed, residential schools ran for 175 years, protesting could lead to having your status revoked, access to courts were limited (not allowed lawyers for land claims), treaty promises weren’t honoured, reserve land was cut off, women’s power was targeted, Indigenous vets didn’t get the same benefits as white vets, Inuits were relocated, huge numbers of over-incarceration
  • Today, Indigenous communities face higher rates of unemployment, incarceration, health challenges, children in care, violence; lower rates of income and education
  • Colonialism isn’t just historical in Canada = it is contemporary

1867-1973: Legal Continuity

  • Indigenous law continued to be transmitted, treaty-making occurred, family making occurred (which facilitated the passing down of their worldview), structures of leadership and advocacy were built
  • The NRTA (constitutional legislation) in the 1930s guaranteed that Indians would be able to hunt for food at all seasons without regulation, made cultural adaptations where needed (electing hereditary chiefs), and adopted underground practices where needed to keep things going, the White Paper was rejected in 1969

Royal Proclamation, 1763

Facts /
  • When the British formally asserted themselves in North America
  • Assumed that British laws would be the guiding principles BUT specified that they would respect the native people

Key / Stated that:
  • The settlers won’t molest or disturb the native people or walk in their hunting grounds
  • Indian lands belong to the Indians
  • Land holdings outside of the boundaries that were already laid down couldn’t be created – colonial governments are forbidden from taking Indian land
  • If the Indian land was to be passed to settlers, it had to be done in a public meeting and with the Crown’s consent – meant as a check and balance against voracious local interest

Note /
  • Largely what governed allocation of lands between the Indians and non-Indians (until you get to BC)

Treaty of Niagara, 1764

Facts / Indians brought the Proclamation to the Niagara conference with 2000 people from 22 nations
Key / This was the Aboriginal affirmation of the Royal Proclamation – the British process of signing the Proclamation wasn’t through their legal tradition, so this extra step was taken

Connolly v Woolrich (1867) Quebec

Facts /
  • In 1802 Mr Connolly moves to the Prairies, marries a Cree woman under Cree law, he stays with her for 30 years and they have six kids
  • He moves back to Montreal in 1831 and marries his second-cousin in a Catholic ceremony
  • After he dies, his son from his first marriage sues for a right to half of his estate

Issues /
  • Can Cree marriages be ratified in Canadian law?
  • Who gets the half estate?

Analysis /
  • Lawyer for second marriage says that the first can’t be recognized because it’s uncivilized, pagan, savage, etc – court rejects this
  • Doctrine of continuity established: Cree law was not abrogated when the British and the French arrived – the law was left in full force and not modified in the slightest.
  • Self-government survives the assertion of sovereignty
  • This is constitutionally consistent with the Royal Proclamation and the Treaty of Niagara

Ratio /
  • Aboriginal people hold rights to their territory not because of what the RP may have said about the matter, but because Aboriginal rights emanate from Aboriginal legal systems that predate the establishment of colonies on the continent

Stands For /
  • There are diverse sources of Constitutional law (Cree law is apart of this)
  • The legal systems were harmonious for a long time
  • Self-government is not inconsistent with the common law (doctrine of continuity)
  • Our law is not just what our written documents or legislatures or judges say

Guerin v The Queen(1984) SCC

Facts /
  • Land on Musque’am reserve was leased to Shaughnessy Golf Club in the 50s
  • The Indian agent had told the Indians they’d get lots, then told the golf club the Indians would get nothing – communicated different terms
  • The lease was signed with way fewer conditions than had been promised to the Indians – damages were assessed at $10M

Issue /
  • Does the Crown owe a duty to the Musque’am to compensate for the loss?

Analysis / Trust law can’t be applied here – it concerns a fiduciary duty
What is the source of that duty? The source of Indian title?
  • Aboriginal title is a legal right derived from the Indians’ historic occupation and possession of their tribal lands under the common law [not just the RP] (Calder)
  • They are the rightful occupants of the soil, but their rights to complete sovereignty as independent nations were necessarily diminished
What is the nature of Indian title?
  • Sui generis – “of it’s own kind” (personal/usufructuary & beneficial)
  • Can only use the land as an animal would, but it’s beneficial
  • It’s best characterized by its general inalienability, coupled with the fact that the Crown is under an obligation to deal with the land on the Indians’ behalf when the interest is surrendered
What is the purpose of Crown duty?
  • Interposition: to put themselves between the Indians and prospective purchasers or lessees of the land, so as to prevent the Indians from being exploited
  • Discretion: through confirmation in the Indian Act, Parliament has conferred on the Crown discretion to decide for itself where the Indians’ best interests really lie. S18(1) of the Act.
What is the content of the duty?
  • Good faith, Crown scrutinized & supervised, oral terms guide (?)

Held / Yes they owe a duty – Musque’am got pitiful damages
Note /
  • Case stands for the proposition that Canadian law dealing with Aboriginal people will be attentive to both the common law and the Aboriginal people; Crown sovereignty is limited
  • Woolrich said Aboriginal title comes from Aboriginal legal systems; court here interprets Calder as deriving common law Aboriginal title from their historic occupation and possession of ancestral lands

Section 35(1) Framework: Shifting Burdens

***Important slide for the exam - provides a framework, easy to apply with a hypothetical

  1. Proof of Right? On Aboriginal side
  2. Right Extinguished? On Crown
  3. Right Infringed? On Aboriginal side
  4. Have to show one of these three things:
  5. Crown action was unreasonable
  6. That it denies preferred means of exercising that right
  7. That it causes undue hardship
  1. Infringement Justified? On Crown
  2. Crown has to show that there was:
  3. A valid legislative objective (can be almost anything)
  4. That flows to the honour of the Crown
  5. Honour of the Crown is on a spectrum
  6. In Sparrow, it was giving Aboriginal peoples priority to the fish (before fisheries, sport fishers, etc) - right for food, social, ceremonial purposes
  7. If it was found that Aboriginal people had a commercial right to fish, there's more proportionality between the Aboriginal and non-Aboriginal right - they could limit how much fish the Aboriginal people took

Section 35(1) Framework: Cases

  1. PROOF OF RIGHT?
  2. Ab. Right: Vanderpeet, Lax Kw’allams - Integral…at contact
  3. Ab. Title: Tsilhqot’in - Sufficiency at Sovereignty, Continuity, Exclusivity
  4. Treaties: Marshall - Common Intention Best Reconciles
  5. RIGHT EXTINGUISHED? (Sparrow – clear and plain intent)
  6. RIGHT INFRINGED? (Sparrow)
  7. Crown Action is Unreasonable
  8. Denys Preferred Means of Exercise
  9. Causes Undue Hardship
  10. INFRINGEMENT JUSTIFIED? (Sparrow, Haida, Taku, Mikisew, Beckman)
  11. Valid Legislative Objective
  12. Honour of the Crown (Haida)

Sparrow Framework

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

“Existing” / What does “existing” mean?
  • Existing means unextinguished in 1982; it does not mean exercisable in a certain time in Canada’s history
  • For something to be extinguished it has to have been done with clear & plain language and intent – it’s a heavy burden (terminating something akin to property)
  • These rights are not frozen, are evolutionary

“Aboriginal Right” / Burden of proof on Aboriginal peoples to show that they have the right
  • Nature and scope of the right was determined by an expert anthropologist in this case – determined that salmon fishing was integral to lives and culture from a F,S,C perspective
Why is the right to fish for FSC not extinguished?
  • Regulation does not equal extinguishment; no clear and plain intent from the Crown in the Fisheries Act to do so
  • The permits controlled Aboriginal rights, they did not define them

“Recognized & Affirmed” / How does s35(1) affect Parliament’s sovereignty?
  • It constrains it
  • Court assumes that the Crown has the overriding sovereignty on the underlying land BUT S35(1) allows the court to question claims of Crown sovereignty
  • Crown sovereignty can be constrained because s35(1) incorporates fiduciary duty, sanctions challenges to social/economic policy, provides measures of control over government conduct, is a strong check against government action, and the government bears the burden of justifying negative effects on the rights (?)
  • Courts and Parliament must construe s35(1) purposively, generously, liberally; relationship is trust-like and not adversarial

Infringement / Why can the government legislate aboriginal rights?
  • They have no s1 textual permission to do so because rights are NOT absolute, thus can be infringed – gov’t has to act in good faith (fiduciary duty), which means there’s a restraint on Crown power, which gives them the right to infringe – doesn’t square
How do courts determine infringement?
  • Test for prima facie infringement must be conduct from the aboriginal perspective
  1. Is the limitation unreasonable?
  2. Does the regulation impose undue hardship?
  3. Does the regulation deny to the holders of the right their preferred means of exercising that right? – Undue hardship

Justification / If prima facie infringement is found, how can Parliament justify infringement?
  1. Is there a valid legislative objective?
  • Could be conservation of resources or public protection, for example
  1. Honour of the Crown – special trust relationship and responsibility of the Crown must be the first consideration in determining whether the legislation/action can be justified
  • Priority (after conservation) has to go to Indian fishing before non-Indian commercial or sport fishing
  • Must infringe as little as possible and must compensate if necessary (like in a situation of expropriation)

Note / Court did not provide detailed reasons why fishing was an Aboriginal right, nor did it address the issue of the scope of protection accorded by s35(1) to Aboriginal commercial fishing practices

R v Sparrow(1990) SCC - right

Facts /
  • Sparrow is from the Musque’am reserve, goes fishing in the Fraser River for salmon, sets up a drift net that is longer than permitted by his license
  • Criminally charged for this under a federal law that is provincially administered
  • He argues that he had an existing Aboriginal right to be there and to take fish out of the water – doesn’t matter what his license said

Issue / Is the Fisheries Act net length regulation inconsistent with s35(1)?
Outcome /
  • They set a framework for how to test what would make something inconsistent with s35(1)
  • Send the matter back to trial – this doesn’t happen, an agreement was negotiated instead that works out an allocation prioritization to the fish and does give Indians rights to fish for F,S,C, and commercial purposes

Note /
  • Case stands for the point that provincial regulation cannot define the Aboriginal right – just because the province has done something in the past, those decisions do not affect the nature or scope of the right

R v Van der Peet(1996) SCC– defining Aboriginal rights

Facts /
  • Ms. Van der Peet sold ten salmon for $50, charged with selling fish contrary to the Indian food fishing license that she had
  • Know that she can fish for FSC purposes thanks to Sparrow, but not clear whether she can for commercial purposes
  • She argued that the licensing system was unconstitutional because it violated her right to fish commercially

Outcome /
  • No aboriginal right to exchange fish for commercial purposes

Issue /
  • How should aboriginal rights be defined?

Analysis /
  • Aboriginal rights cannot be defined on the basis of the philosophical precepts of the liberal enlightenment – they are equally important to Charter rights but they must be viewed differently
  • Note: if this was reformulated to see aboriginal rights as part of the checks and balances on government power, they could be grounded within the liberal tradition

General Principles /
  • Interpretation must be generous, liberal, and in favour of aboriginal peoples; this arises out of the Crown’s fiduciary relationship towards aboriginal peoples – the honour of the Crown is at stake; and the gov’t must act in good faith (Guerin)
  • Rationale for entrenching aboriginal rights: they lived here pre-contact
  • Role of comparative law in defining rights: source of their rights are from aboriginal legal systems
  • Role of indigenous law in defining rights: “the challenge of defining aboriginal rights stems from the fact that they are rights peculiar to the meeting of two vastly dissimilar legal cultures” – must incorporate both legal perspectives (aboriginal & imperial)

Test / The defining test for identifying aboriginal rights in s35(1):
In order to be an AR an activity must be an element of a practice, custom, or tradition integral to the distinctive culture of the aboriginal group claiming the right, and must have existed pre-contact
  • It must be one of the things that truly made the society what it was
  • Courts must take aboriginal perspectives into account, the practice should have continuity (this has to be flexible), must be conscious that evidence may not conform to evidentiary standards in other cases, claims must be adjudicated on a specific rather than a general basis

Lax Kw'allams - definition of Aboriginal right

Facts / LK live near Prince Rupert, engaged in a rich trade from Alaska to Northern California for candlefish (high fat content – would render them for the grease). Chinook developed, potlaches, etc.
Today: a successful band that is not anti-development, but did turn down a $25B offer that threatened the fish
Issue / Does the LK have a right to commercially harvest and sell all species of fish within their traditional waters?
Court looked at: how do you properly characterize an Aboriginal right?
Analysis / Proper steps for characterization:
  • Precision: to be fair to all parties. Court said connecting the right to fish to the LK way of life was too broad. Must narrow the claim to satisfy the forensic rights of the defense (so they know exactly what to refute).
  • Practice-based
  • Continuity: generous, though realistic
  • Consider interests of all Canadians: not in the public interest to assert Aboriginal claims in this broad way
Group didn’t follow the correct procedure for proving their rights.
  • Practice can evolve but subject matter can’t – can’t transform trade in candlefish to trade in other species of fish (inconsistent with other decisions)
  • Quantitative pre- v post- contact difference must be takin into account

Held / No. Also did not make a finding for right to fish for FSC purposes.
Note / Big loss. To do with BC economic concerns?
What should a lawyer do when the test seems unjust?

Tsilhqot’in(2014) SCC - title