Mini outlines

Federalism: s. 88

Outline Part 2: pg 19 – 22

Provincial Laws of general application apply to Indians except where conflicts with:

  • Existing treaty rights
  • Federal legislation
  • Indian Act
  • First Nations Fiscal Management Act
  • Band order, rule, regulation, or law made under above acts

2 Kinds of Provincial Laws apply:

  1. Laws that don’t touch “Indianness” apply of their own force
  2. Laws that regulate “Indians qua Indians” are referentially incorporated into federal law by s. 88
  3. Can disproportionately affect Indians
  4. Ultra vires if intent is to single out Indians
  5. Cannotextinguish a s.35(1) Aboriginal Right (Delgamuukw)
  6. If the referentially incorporated law infringes 35(1) rights, needs to be justified under the Sparrow test (Alphonse)
  7. Cannot justify infringement of Treaty Right, because treaties are listed in the exceptions in s.88 (Morris)

Title and Reserve Land: province can amend law to apply to title land (justification process) – Tsilhqot’in

  • Applies (maybe) in same way to reserve land (Guerin – says reserve land is same as title land – but the jurisprudence isn’t entirely clear here)

Cooperative federalism: court says no more IJI, wants to see cooperative federalism (Tsilhqot’in)

Rights Framework

(Characterize the right)

  1. Proof of right
  2. Extinguishment
  3. Interference
  4. Justification

Characterize the Right

  • Must first identify the exact nature of the activity claimed to be a right Pamajewon [25]
  • To characterize an applicants claim correctly, a court should consider such factors as:
  • The nature of the action which the applicant is claiming was done pursuant to an Aboriginal right;
  • The nature of the government regulation, statute, or action being impugned; and
  • The practice, custom, or tradition being relied on to establish the right. Van der Peet [53]
  • Characterize narrowly:
  • Rejecting broad characterization: Applicants would have the court characterize claim as “broad right to manage the use of their reserve lands…[this is] at a level of excessive generality…Aboriginal rights must be looked at in the light of the specific circumstances of each case” [26]
  • Right claimed: to participate in, and to regulate, high stakes gambling activities on the reservation
    (Claiming that s. 35(1) recognizes and affirms the rights of this particular FN to participate in and regulate gambling activities) [26]
  • Cannot characterize an aboriginal right as a right to a particular resource – would be like a CL right, and aboriginal rights are founded upon practices, customs, traditions Sappier/Grey [21]
  • Instead, right is a right to harvest wood for domestic purposes
  • Qualifies use the timber can be put to – no commercial right Sappier/Grey [25]

Proof of Right

Burden: aboriginal group

TEST: Integral to distinctive culture

Time: pre-contact

Goal: identify those practices, traditions, customs that are integral to the distinctive aboriginal culture prior to contact
(Van der Peet – outline pg 21, Borrow’s comments on the 10 steps on pg 23)

10 Points:

  1. Take account of aboriginal perspective RE meaning of the right

But must be “cognizable” to CL system

  1. Precisely identify the nature of the claim (see “characterize the right”)

Look at specific level, but can take on modern form

Right must be defined with precision

Also be precise about what pre-contractpractice is being relied upon to prove right

  1. Must be of central significance to the aboriginal society in question

One of the things that made the society what it was

Question: would the culture be fundamentally altered without the practice?

  1. Continuity with pre-contact practice

Doesn’t require an unbroken chain

Use flexible interpretation – rights are not frozen – can evolve into modern forms

Show evidence that origin of right is pre-contact

  1. Must adapt rules of evidence

Don’t undervalue, oral tradition

  1. Specificity

Assess rights case-by-case, one group establishing right does not mean all other groups have that right automatically

  1. Independent significance

Can’t be incidental to another practice

Rights can’t “piggyback”

  1. Distinctive, not distinct

Doesn’t have to be only group that does this

  1. European influence

Doesn’t deprive of right, unless is the only reason the right arose / only reason it is integral

  1. Land / social distinction

Rights and title are related (title as a subcategory), consider relationship to land, but also the practices arising from distinctive society

Extinguishment

Burden: crown

Time: pre-1982

Requires “clear and plain intention” to extinguish (Sparrow)

  1. Regulation DOES NOT EQUAL extinguishment (Sparrow)
  2. Control by Indian ActDOES NOT EQUAL extinguishment (Sparrow)
  3. Non-recognition of right DOES NOT EQUAL extinguishment (Coté)

What constitutes extinguishment? (Mitchell)

  1. Incompatible with Crown’s assertion of sovereignty
  2. Surrendered voluntarily via treaty
  3. Clear and plain intention of government to extinguish

Infringement

Burden: Aboriginal group

Establishes: prima facie infringement

Question: does the legislation in question have the effect of interfering with an existing Aboriginal right? (Sparrow text pg 109)

Consider from the Aboriginal perspective

Prima facie infringement IF:

  1. Unreasonable limitation OR
  2. Imposes undue hardship OR
  3. Denies rights holders preferred means of exercising right

*whether purpose or effect of the legislation unnecessarily infringers on interests protect by the right

If commercial right: test for infringement is modified by Gladstone – becomes a balancing test (importance to aboriginal group vs importance to crown/other community) – must demonstrate took account of the aboriginal right and assign it priority wrt other rights – if there is no internal limit on the right (i.e. if giving priority would give exclusive access to commercial fishing) then it’s not appropriate to give priority to the aboriginal group

Justification

Burden: Crown

Crown must show 2 things:

  1. Valid legislative objective – pretty easy to do
  2. Conservation, protect against harm Sparrow
  3. Economic and regional fairness Gladstone
  4. Range is broad: agriculture, forestry, mining, hydro, economic development, environment, infrastructure, settlementDelgamuukw
  5. Objective must align with purpose of 35(1): either to recognize prior occupation or reconcile it with crown sovereignty Delgamuukw
  6. Honour of crown / (acted in accordance with fiduciary duty if applies) – this is where most of the work is
  7. Appropriate priority Gladstone
  8. Minimal infringement
  9. May require compensation Delgamuukw
  10. Consultation and accommodation: will vary depending on right at stake and severity of infringement see Duty to Consult Haida

Treaties

Extinguishment: requires clear and plain intent, just like 35(1) Sioui

Infringement and Justification: test from Sparrow applies as it would with 35(1) rightsBadger

Crown has duty to consult and accommodate if interfering with treaty rights Grassy Narrows

Other points:

Laws of general application apply to Indians subject to terms of Treaties White and Bob

Taking up lands – province can do under treaty (i.e. treaty includes “taking up lands” clause) even if interferes with treaty right – but has to meet justification testGrassy Narrows

Interpretation: Proof of Right in Treaty Context

  • Treaty Rights not frozen in time
  • Question: is the modern activity in question a logical evolution from the traditional activity at the time treaty signed? Marshall 2
  • How to establish what the right is: Interpretation!Marshall 1:
  1. Starting point is the words of the treaty
  2. Use extrinsic evidence
  3. Consider objectives and actions of the parties
  4. Liberally construe, ambiguity in favour of aboriginal group
  5. Trying to find interpretation that represents common intention of the parties
  6. Assumes integrity and honour of the crown
  7. Give words meaning would have had at the time
  8. Sensitive to culture, linguistic differences
  9. Treaty rights can evolve, includes what modern practices are “reasonably incidental” to core treaty right
  10. Avoid technical interpretation, but cannot go so far as to exceed “what is possible on the language”

Title

Time: assertion of sovereignty

Test for title:Delgamuukw, confirmed by Tsilhqot’in

*Expanded on in Tsilhqot’in, pg 34 outline

  1. Occupied prior to sovereignty
  2. Continuity of occupation

Doesn’t require unbroken chain, but substantial maintenance of connection

  1. Exclusivity

But another group trespassing not fatal

Tsilhqot’in:

  • Restrictions on use of land
  • Province can amend Acts to apply to title land (does apply pre-proof)
  • Must obtain consent to use the land

Changes requirements for justifying infringement:

  • Crown has fiduciary duty
  • Once title proven, may have to reconsider government action pre-proof
  • Crown can still infringe but must prove the following:
  1. Procedural duty
  2. Compelling and substantial objective
  3. Action consistent with fiduciary duty
  1. Cannot deprive future generations
  2. Proportionality:
  3. Rationally connected
  4. Minimal impairment
  5. Balancing: benefits to broader community can’t be outweighed by adverse effects on aboriginal group

Consultation and Accommodation

Haida: pg 50

  • Duty kicks in when crown has real and constructive knowledge of apotential aboriginal right and adverse effectson that right
  • Arises because of HoC
  • Content and scope varies with strength of claim and impact on it
  • Does not equal veto
  • Possible requirements to meet duty: pg 51
  • Can delegate procedural aspects to third parties, but cannot delegate HoC

Fiduciary duties: reserve land (Guerin)

  • Arises in specific legal relationship with “taking” of Indian interest in land
  • On reserve land only
  • Pg. 53

Inuit Rights

Changes to time of contact: time of contact is much later

Cases: Part 2 page 9

Same concepts apply as with rights for Indians

Metis Rights

Time: post-contact, but pre-control

Modified Van der Peet test: Powley

  • Time is post-contact because Metis have post-contact origins
  • Identify those practices, customs, traditions that are integral to Metis community’s distinctive existence and relationship to land after contact but prior to European political and legal control

Test for membership in Metis group / Metis identity (in order to claim right):

  1. Must identify as Metis

Not of recent vintage

  1. Some evidence of ancestral connection to historic Metis community

Doesn’t have to be blood

  1. Accepted by community

Past and ongoing participation in shared culture

Treaty-taking, living on reserve not fatal