Indigenous Peoples and the Constitution

Indigenous Peoples and the Constitution

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

(2)In this Act,“aboriginal peoples of Canada”includes the Indian, Inuit and Métis peoples of Canada.

(3)For greater certainty, in subsection(1)“treaty rights”includes rights that now exist by way of land claims agreements or may be so acquired.

(4)Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection(1) are guaranteed equally to male and female persons.

Courts must construe s. 35(1) purposively, generously, liberally; trust-like, not adversarial
Treaty rights part of s. 35 – prevail over ss. 91 and 92 powers
A morally defensible position will incorporate both the common law and Aboriginal perspectives

Approach:

(Characterize the right): must be narrowly, not commission of inquiry approach (Lax Kw’allams)

Proof of right: burden on Ab. group making claim
Extinguishment: burden on Crown to show that rights were extinguished before 1982 (must be done by feds)

Extinguishment must be done by clear and plain intent; regulations do not extinguish (Sparrow)

Infringement: burden on Ab. group to show infringement of right by Crown
Justification: burden on Crown to justify infringement

Duty to Consult invoked when Crown has real and constructive knowledge of a potential Aboriginal right and adverse effects on that right; arises b/c of the Honour of the Crown (Haida Nation)
Content and scope varies with strength of claim and degree of adverse impact on it (Delgamuukw)

Test for Aboriginal Rights: (Sparrow, Van der Peet): integral to distinctive culture at time of contact

Test for Aboriginal Title: (Tsilhqot’in)

Sufficiency of occupation: context-specific factual inquiry, regular use of territory is enough
Continuity of occupation: from time of assertion of sovereignty onwards (1846 for BC), where present occupation is relied upon (disruption may be caused by settlers, does not negate claim – Delgamuukw)
Exclusivity: intention to control, capacity to control, possibility for joint title

Burden on Aboriginal group

sui generis – approach from common law and Ab. Perspective
not an all or nothing/technical exercise – based in project of reconciliation & justice for Ab. People
Ab. title is collective, subject to inherent limit: cannot be used/changed in ways that would substantially deprive future generations of the benefit of the land; cannot be alienated except to Crown

Treaties – Canons of Construction (Marshall):

Starting point is the words of the treaty
Use extrinsic evidence
Consider objectives and actions of the parties
Liberally construe, ambiguity in favour of aboriginal group
Trying to find interpretation that represents common intention of the parties
Assumes integrity and honour of the crown
Give words meaning would have had at the time
Sensitive to culture, linguistic differences
Treaty rights can evolve, includes what modern practices are “reasonably incidental” to core treaty right
Avoid technical interpretation, but cannot go so far as to exceed “what is possible on the language”

Test for s. 35(1) infringement: - prima facie infringement– applies to rights, title and treaty

Unreasonable limitations, or
Undue hardship, or
Deny preferred means of exercising right

Burden on Aboriginal group

Justification for s. 35(1) infringement – legislation must: (Sparrow) – applies to rights, title, and treaty

further a compelling and substantial purpose:

conservation, protect against harm (Sparrow)
economic and regional fairness (Gladstone)
broad range: economic development, environment, infrastructure, settlement (Delgamuukw)
objective must align with purpose of s. 35(1): reconcile prior occupation with crown sovereignty

account for the priority of the infringed Aboriginal interest under the fiduciary duty of the Crown

Honour of the Crown
infringe as little as possible, consult, compensate, appropriate priority (Gladstone)

Burden on Crown

Indigenous Peoples and the Constitution: s. 35

Crown sovereignty constrained b/c s. 35(1):
Incorporates fiduciary duty
Sanctions challenges to social/economic policy
Is a measure of control/check on gov’t conduct
Puts the burden of justifying negative effects on the Crown
Intersocietal law – bridges two legal cultures; aim is to reconcile Imperial law with Indigenous law
Courts recognise cost of litigation – developing a framework/principles to guide negotiation (preferred)
Issues: living tree model for Canadian constitutional interpretation, except s. 35 where framework is originalism?
Aboriginal Rights created through:
Indigenous legal relationships
Nation-to-Nation relationships (ex. Royal Proclamation/Treaty of Niagara)
Personal relationships (ex. Connolly v Woolrich)
Common Law and Equity (ex. Guerin)

 s. 35 recognised and affirmed Aboriginal rights, and made them part of the constitution

Aboriginal title is sui generis (Delgamuukw)
Inalienable – cannot be transferred/sold/surrendered or anyone but the Crown
Source – arises from the prior occupation, prior social organization and distinctive cultures
Communal – collective right to land held by all members of an Aboriginal nation
Royal Proclamation of 1763 (question re if it applies to BC)
Indian lands belong to Indians, colonial gov’ts cannot seize
Indian lands can only be ceded to the Crown; treaty process only by imperial power
Treaty of Niagara, 1764
Made meaning of the Royal Proclamation
Dealt with alliance, trade, criminal justice, land  agreement woven into wampum belts

Connolly v Woolrich [1867]

Cree marriage recognised, Cree law recognised by Court
Doctrine of continuity – arrival of British did not extinguish Indigenous law – principle remains law today
Implications: diverse sources of constitutional law, legal systems not always adversarial, self-gov’t not inconsistent with common law, common law on Aboriginal rights constitutionalised in 1982

Guerin v The Queen [1984] SCC

Facts / Musqueam reserve, golf club wants to lease land, enter into negotiations with Indian Agent, conditions of lease explained differently to FN, FN getting far less than market value under the lease
Issue / Does the Crown owe a duty to Musqueam to compensate for loss?
Held / Yes, fiduciary duty to act in Indians’ best interests. Musqueam rec’d damages but insufficient $.
Reasons /

Indian title predated and survived assertion of Crown sovereignty (independent source)
Crown has underlying title – principle of discovery
Indian title is sui generis: look to both common law and Indigenous law – neither are determinative
Crown sovereignty limited – Crown = fiduciary, must act in good faith, scrutinised/supervised by Courts

Calder [1973] SCC

Aboriginal title is justiciable – a right that can be upheld in Court

R v Sparrow [1990] SCC – AB RIGHT

Facts / Musqueam reserve, fishing with net longer than allowed by license, criminally charged (Fisheries Act)
Issue / Is the Fisheries Act net length regulation inconsistent with s. 35(1)?
Held / Set framework, send back to trial. Instead, agreement negotiated (allocation prioritisation).
Reasons /

Regulations cannot define the nature/scope of the Ab. right b/c Ab. rights do not arise from the Crown; regulations do not equal extinguishment
“existing” in s. 35(1) means not extinguished, does not mean as regulated in 1982
Crown has the burden of proving extinguishment – done through clear and plain intent

R v Van der Peet [1996] SCC – AB RIGHT

Facts / Sto:lo Nation, D sold a small amount of fish for small amount of $, contrary to food fishing license
Issue / How should Aboriginal rights be defined?
Held / Aboriginal rights of Sto:lo do not include right to exchange fish for $.
Reasons /

Courts should interpret Ab. rights generously/liberally; resolve any doubts in favour of Ab. Rights
s. 35 is about reconciling pre-existing societies with the assertion of Crown sovereignty
Element of a practise/custom/tradition that is integral to the distinctive culture of the Aboriginal group

Practise claimed must have continuity with pre-contact practises (flexible to a degree)
Factors to consider: precise nature of the claim, central significance to the Ab group in question, rules of evidence relaxed, Ab. rights adjudicated on a specific basis, cannot be incidental

R v Gladstone [1996] SCC – AB RIGHT

Ab. rights can be infringed if gov’t objectives are of sufficient importance to the broader community as a whole and where the objectives are in the interest of reconciliation of Ab. peoples and with the rest of Canadian society
Possible objectives that might meet the test: conservation

Delgamuukw[1997] SCC

Ab. rights demand a unique treatment of evidence
Ab. title – an exclusive right in land, more than a right to engage in specific activities (Ab. rights) – confers the right to use land for a variety of activities (more than site-specific activities)
“There is always a duty of consultation. Whether the aboriginal group has been consulted is relevant to determining whether the infringement of aboriginal title is justified… The nature and scope of the duty of consultation will vary with the circumstances.” (168)

Tsilhqot’in[2014] SCC – AB TITLE

Facts / BC granted forest license in T territory, FN objected, blockade, talks between FN and BC hit an impasse; claim by T to have title recognised, no adverse claims from other Indigenous groups, feds and BC oppose
Issue / What is the test for Aboriginal title?
Held / Title established for Tshilhqot’in
Reasons /

Test for Aboriginal title: - sui generis – approach from common law and Aboriginal perspective

Sufficiency of occupation: context-specific factual inquiry, regular use of territory is enough
Continuity of occupation: from time of assertion of sovereignty onwards
Exclusivity: intention to control, capacity to control, possibility for joint title

Legal characteristics of title:

Not limited to traditional uses of the land
Inherent limit – collective ownership
Underlying title to the Crown – right to encroach in public interest (fiduciary duty)

Justification for infringement varies with strength of claim

Pre-proof (title not yet established): procedural duty to consult/accommodate
Post-proof (title established): procedural duty to consult/accommodate + Sparrow test

Rejects postage stamp approach

R v Marshall [1999] SCC – TREATY RIGHTS

Facts / D sells eel without license, contrary to fed regulations, defence: treaty rights
Issue / Do the fed regulations infringe Mikmaq treaty rights?
Held / Yes, Crown must justify regulation
Reasons /

Large liberal interpretation to treaties, but not vague/largess, must be rooted in historical evidence
Officious bystander test: what would people there at the signing have thought the terms were?
Deals with evidentiary standards – must relax, extrinsic evidence allowed
Disappearing Treaty Right does not do justice to Honour of Crown or reasonable expectations of Mi’kmaq (contingent on truckhouses)
Limited scope of treaty: internal limits in Mikmaq law, protects trade of necessities (moderate livelihood)
Marshall II – “elaboration” on decision, bowing to public pressure from settler fishing industry

Haida Nation [2004] SCC – AB RIGHT/DUTY TO CONSULT

Facts / Haida never treatied, BC issuing licenses for logging, FN objects, logging continued in way that threatened Haida way of life, renewal of license at issue
Issue / What are the sources of the duty to consult and accommodate?
Held / Crown has a duty to engage in deep consultation in this case, licenses could not be renewed without.
Reasons /

Haida never conquered, recognising title/rights takes time (shouldn’t disadvantage Ab. people)
Strength of claim (likelihood of being able to prove title) and degree of adverse impact must be assessed to determine if duty to consult and accommodate is triggered
Ab. group can raise issue of infringement before title/rights proven
No duty to agree; Crown able to engage in hard bargaining
Practically: Crown gives 3P (proponent) responsibility for consultation, then Crown will evaluate.

Taku River Tlingit (TRTFN) [2004] SCC – DUTY TO CONSULT

Environmental Assessment OK for consultation as long as sufficient attention given to Aboriginal issues
Province not required develop special consultation process

Mikisew Cree [2005] SCC – DUTY TO CONSULT/TREATY RIGHTS

FN seeking interlocutory injunction, road would disturb traplines, Treaty 8 territory
Treaty 8 requirement for duty to consult – standard is low; Crown did not discharge here, but easy to in future

Lax Kw’allams [2011] SCC – AB RIGHT

Facts / Eulachon “candle fish” grease trade, FN asserts right to commercially harvest all species
Issue / Is there an Aboriginal right to harvest all species?
Held / Right not established, will not make lesser finding.
Reasons /

Court cannot adopt a commission of inquiry approach – too broad (Crown/D must know what is claimed, not in public interest)
Practises can evolve but subject-matter of practises cannot – narrowly integral to distinctive culture
Characterise right: precise, practise-based, continuity (generous but realistic), consider public interest

Little Salmon/Carmacks First Nation [2010] SCC – DUTY TO CONSULT/TREATY RIGHTS

LSCFN Final agreement reached in 1996 (modern treaty); YK issues grant of land without consultation
Standard of reasonableness in reviewing Director’s decision; notice and information sufficient in this case
Duty to consult is imposed as a matter of law – needed to maintain relationship between gov’t and Ab peoples