Part 1 Aboriginal Rights/Title/Treaties

Part 1 – Aboriginal Rights/Title/Treaties

TABLE OF CONTENTS

INTRODUCTORY MATERIAL

S. 35(1)

 Reconciles prior occupation with assertion of sovereignty

 Bridges “2” legal cultures

 Intersocietal / blending

 Ideal: stich together best of both worlds

SOURCES OF INDIGENOUS LAW

Custom:  Understanding customs of the people helps understand what’s in balance and what’s out of balance (e.g. “Reasonable Person”)  Note: also a source of Common Law

Natural  Reason by way of analogy and distinguishing  Anthropomorphizing  Pattern society after the patterns observed (akinomagae)  Law embedded in environment, land as “textbook”

Deliberative  Requires discussion, persuasion

Positivistic  Declared source: regulations, codes, chronicles, sayings, proclamations

Sacred

1  Certain teachings given extra deference and regard  E.g. Constitutional Law as “Super Law”  See “saced” very clearly in the US Constitution (founders, text)

CREATION STORIES / SOURCES OF SOVEREIGNTY

1. Councils

2. Relational – Nation to Nation

 Governance formed through relationships, possibly expressed by wampum belts (for example)

 E.g. Sioui in coursebook: at time in question, Crown treated indigenous peoples as independent, “close to” sovereign power, alliance powers, friendship/kinship, governing selves, cooperation necessary, saw as a threat, owning lands, autonomous

3. Royal Proclamation – Formal Agreements between Crown and First Nations

 Colonial government forbidden from taking Indian land

 Individual non-natives forbidden from taking Indian land

 Treaty process only by Imperial power

 Doubt that the Proclamation is good enough leads to Treaty of Niagara (1764): alliance, trade, criminal justice, land reserved to Indians

4. Person to Person

 Connolly v Woolrich (creation through individual activities)

o Q: can we recognize Cree law and therefore give rights to children from first marriage?

o Yes. Court recognizes legal pluralism

2 GOVERNANCE

HISTORIC GOVERNANCE Pre/Post European Aboriginal Governance

Pre- Aboriginal people exercised governance for millennia prior to the arrival of Europea Europeans n Post- European arrival challenged existing Aboriginal governing structures in two Europea ways: n Internally: Externally:  Presented alternative values &  Indian Act and forced options for governance assimilation programs tested  Greater emphasis on choice for traditional Aboriginal individuals/communities governance structures

Aboriginal Governance: Sovereignty & Self Determination Sovereignty  Aboriginal belief that it is natural right of humans o “Original freedom conferred to our people by the creator rather than a temporal power” Self  Thus, sovereignty finds its natural expression in self-determination Determination

3 Self-  One path by which Aboriginal people can look towards to bring self- Government determination and sovereignty into effect o Historical basis w/ nation-to-nation treaties

Court Obiter on Aboriginal Governance

R v.  Treaty exists where there is agreement btw British & aboriginal peoples Sioui demonstrating “intention to create obligations, presence of mutually binding (1990) obligations and measure of solemnity” SCC  During treaty making process, both Great Britain & France felt first nations had independence and felt it good policy to maintain relations with them as sovereign nations  Great Britain recognized: nation-to-nation relationship, Aboriginal land rights, autonomy in internal affairs

Historical Recognition of Aboriginal Governance

Early Contact Nation-to-Nation Diplomacy

Treaty  Treaties traditionally used by both British (written treaties) and Aboriginal Diplomacy groups (wampum belts) for interactions w/ other independent nations  Combination of wampum belts & written treaties used in treaty making process demonstrates desire for nation-to-nation relationship

Early Contact Recognition of Nation-to-Nation Relationship

1. Treaty of  First formal alliance btw aboriginal peoples and British Crown Albany  Iroquois were powerful & British wanted to ally w/ them (1664)  Written agreement & wampum belt recognized nation-to-nation agreement 2. Covenant  Agreement which grew from Treaty of Albany – Dutch, Iroquois, British Chain & other Aboriginal nations all form part of chain  Military, political, social & economic alliance 3. Royal  Attempted to convince Indians that British would respect existing political Proclamation & territorial jurisdiction of Aboriginals (1763) o Implied that no lands would be taken from Aboriginals w/o consent  Rotman: also had effect of providing framework for Britain’s colonialist

4 desires in NA 4. Treaty of  Most widely representative gathering of Aboriginal leaders ever Niagara assembled (1764)  Borrows: written words in Royal Proclamation should be read in conjunction with wampum from Niagara.  Promises made at Niagara include: 1) Respect for sovereignty of first nations 2) Creation of an alliance 3) Free and open trade route btw crown and first nations 4) Permission or consent needed for settlement of first nations territory 5) English provision of presents to first nations 6) Mutual friendship, peace & respect

Judicial Recognition of Rel’n btw Royal Procl. & Treaty of Niagara Chippewas of  Royal Proc. Recognized first nations had rights to their lands & Sarnia Band prohibited purchase of their lands – only surrendered to Crown v. Canada  Treaty of Niagara – commemorated recognition of nation-to-nation (OJ) rel’n, Aboriginal rights to land

Report of Royal Commission: Lessons to be Drawn from Connolly v. Woolrich 1. Source of law and authority in Canada are more diverse than sometimes assumed  Include CL and political systems of aboriginal nations in addition to the standard range of euro Canadian sources 2. In earlier times – history of Canada often featured close and relatively harmonious relations between aboriginals and newcomers

INDIAN ACT Haudensosaunee Governance & Great Law pre Indian Act Haudensosaunee  Initially composed of five distinct Aboriginal nations (also called Iriquois  Later added a sixth Confederacy)  Had an elaborate wampum belt which served as constitutional document  Complex structure of governance and law Haundensosaunee  Legal code which discusses peace, power, righteousness Great Law of Peace  Uses oral history story of the peacemaker & metaphors to discuss aspects of law in detail  The narration of the great law continues as new laws such as adoption and emigration are added (similar to CL) Haundensosaunee  Clan Mothers: government and land holding is matriarchal Internal Nation

5 Governance  Residency: metrolocal  Chieftainship was passed on in matrilineal fashion (i.e. clan mothers choose from among sons) Haundensosaunee  Matter would go to each member nation for debate External Nation  Was a one-time-only central veto Governance  Complex system of governance was well-respected by settlers

Legal Exclusion: 1867 – 1973  Indian Act meant to control and assimilate

 Foundation of how Crown deals with Indians (continues today)

 Serious of acts leading up to Indian Act: 1850 (“gradual enfranchisement”), 1857 (“to encourage gradual civilization”), 1869, 1876 (Indian Act)

 Difference in intention of these Acts versus agreement not to interfere

 Objection by 6 Nations people: ask that the Indian Act be removed

 Consequences: Legal Exclusions

 Limited political participation

 Outlawing religious freedoms

 Outlawed economic pursuits

 Residential schools

 Limited access to courts

 Treaty promises not honoured

 Explicit assimilation policies

 Scrip fraud

 Reserve and membership cut-off

 Women’s power targeted

 Mistreatment of veterans

 Inuit relocations

6  Over-incarceration

 60’s Scoop: child welfare

Indian Act Challenges to Haudensosaunee Government Logan v. Styres (1959) DLR -> Aboriginal people are subjects of the Crown -> No Nation-to-Nation Relationship Fact  Clan mother of Mohawk nation (π) challenging the authority of an elected s council under the Indian Act (Δ) to surrender IC lands to the crown  Π argument is that the federal government has no authority to set up an elected council under the Indian Act and surrender land to the federal government  They claim that s. 91(24) of the federal government is ultra vires because the IC is a separate nation and the Canadian government cannot interfere with their internal affairs  Basically, they claim they are allies of the crown (independent nation to nation) not subject (no independent nation to nation) Issue Is the IC in a nation-to-nation relationship with the Crown? Held No The Six Nations accepted the protection of the Crown and thus owed allegiance to the crown and became subjects of the crown. Reads agreement as subordination. Within the authority of Cd to set up Indian Act governments, overturn traditional systems of government. “While it might be unjust or unfair under the circumstances for the parliament of Canada to interfere with their system of internal government by hereditary chiefs, I am of the opinion that Parliament has the authority to provide for the surrender of Reserve land, as done herein, and that the PC order to surrender is not Ultra Vires” Rule By accepting the Crown as protector of their lands, the IC became subjects of the crown, rather than independent allies

The Indian Act s. 2(1) Band council can be chosen according to the custom of the band  Could be interpreted as recognizing and affirming pre-existing ab. Gov. s. 20 No Indian is lawfully in possession of land in a reserve, unless, with the approval of the Minister, possession of Indian land has been allowed to him by the council of the band  Could be interpreted as permitting a choice about whether lands were to be used individually (individual certificates of possession) or collectively s. 81 A band can exercise governance through by-laws  Can pass bylaws related to limited range of subjects articulated in act  Severely limits the power of governance under the Indian Act

7 Critiques of Indian Act Status Report of Auditor General to House of Commons 1. Lack of  The federal government has duty of providing services on Clarity About reserves pursuant to 91(24) Service  AG questions whether level of services offered to Aboriginals on Levels reserve are equivalent to those offered to people living off reserve 2. Lack of a  Provincially offered services have accompanying legislation and Legislative regulations for clarity Base  Often no such system for federal government services to people on reserve 3. Lack of an  The federal government often gives money to reserves and their Appropriate duty ends there Funding  There is confusion about who is to be accountable for the level of Mechanism services actually provided  A legislative base which includes statutory funding could solve this problem 4. Lack of  Federal government has made each band an autonomous entity Organizations  What that means is that there is no streamlined system (e.g. to Support Alberta school board) for the delivery of services to each band Local Service Delivery

Contemporary Cases on Self Government R v. Pamajewon  Can’t construe governance at broad / general level. Must be (1990) SCC activity-specific. (Delgamuukw confirms)  Activity must have been integral to distinctive culture  Cannot claim right to govern gambling at 21st century scale.

CONTEMPORARY GOVERNANCE: AGREEMENTS

Anishnabee creation story: turtle  Principles of governance: discovery, listening to the small ones

 Influence on legal reasoning and practice

White and Red Papers  White Paper (1969)

8  Proposals resonate strongly in many political circles, still see echoes of it

 Eliminate Indian status, dissolve Department of Indian Affairs

 Abolish Indian Act

 Responsibility transfer away from fed’s to provinces: integrate service

 Appoint commissioner to address outstanding land claims

 Terminate existing treaties

 Red Paper (1970)

 Rise of Indian Nationalism, White Paper spurs counter-action

 Maintain Legislative and Constitutional basis of Indian status and rights, until Indians prepared and willing to negotiate (don’t like Indian Act but see that scrapping it with no new deal in place is not good)

 Citizens Plus: access to same services as other Canadians, PLUS rights negotiated through BNA Act, Treaties, Legislation

 Only Indians and Indian Organizations should govern themselves (don’t want Indian agents)

 Crown merely “holds” Indian lands – does not own them

 Indian Act reviewed & revised, not repealed (and only revise when Treaty Rights settled and consensus exists)

 Dissolve Department of Indian and Northern Affairs (create agency better attuned)

 Government appointed commission rejected without Aboriginal consultation (need independent, unbiased, unprejudiced Commission)

Modern Treaties  Land rights (exclusive holding), joint management, use rights (e.g. easements)

 Self-governance agreements (promise to enter into included in the Treaties)

 Issue: resources and administrative structure to support the agreements in the Treaties

Litigation or Negotiation?

 Two ways to achieve definition of the substantive rights under s. 35: 1. Litigation

9 2. Negotiation (preferred method as stated by the courts)

 Litigation has proved ineffective in addressing issue of aboriginal governance, but negotiated agreements have fared better:  Nunavut public model of governance rather than Inuit-exclusive government structure that does not benefit from protection under s. 35  Other aboriginal peoples negotiated in s. 35 (ex. Nisga’a final treaty)  Other nations have gotten agreements for self governance over a specific issue, such as health or resource management

 Report of the Royal Commission on Aboriginal Peoples: Restructuring the Relationship  Aboriginal people are free to implement inherent right to self government through self starting initiatives without the need for agreements from federal or provincial governments

 these initiates can occur in core areas of aboriginal jurisdiction:

 vital concern to life and welfare of particular aboriginal people, culture and identity

 do not majorly impact adjacent jurisdictions

 are not otherwise object of transcendent federal or provincial concern

 Federal government policy guide: Aboriginal Self-Government – lists areas of governance fed’s consider in aboriginal jurisdiction: “matters internal to group; integral to its distinct culture and essential to operation of government”

 Internal constitutions, elections, memberships, marriage, adoption, child welfare, language, culture, education, health, social services, administration and enforcement of laws, policing, internal land management, agriculture, tax, housing

 TAKE AWAY: federal government has made it known that they intend to address aboriginal governance issues

Nisga’a Final Agreement  Inherent right policy finally implemented for first time; provides interesting case study regarding interaction of Firs Nation traditional laws and structures with the broader Canadian constitutional framework

 Background

10  Organized into clans and house groups (Wilps), each of which had its own chiefs, territories, rights, history, stories, songs dances and traditions; these are handed down matrilineal

o Wilps are matrilineal and matrilocal: highest ranking woman makes decisions of names and inheritance

o Each wilp has an adaawk which tells how ancient territories acquired and take listeners mind back to beginning of time; also records major events; property rights such as fishing rights and hunting grounds

o Also have an ayuukhl – ancient legal code which guided relationships socially, economically and politically; in combination with adaawk are the law- govern land ownership, succession, citizenship, education, war, divorce, peace etc

o Settlement feast- passing things on to new chief after old chiefs death

 Agreement Itself

 First modern treaty in BC and 14th modern treaty in Canada

 Legal traditions have been modified slightly since the signing of the treaty

 Ambitious: 2,000 km of land in Nass Valley watershed (collectively owned); addresses land titles, minerals, water, forests, fisheries, wildlife,

 Agreement makes reference to the Ayuukhl as a source of Nisga’a law and the creation of Nisga’a courts to determine its meaning in context of new treaty; will now operate on contemporary Canadian context; recognizes the importance of Nisga’a legal traditions in its preamble;

o Since agreement came into place, have enacted over 30 acts and pieces of legislation; all members are able to make statements; participate in question periods; raise urgent matters and debate bill

o Have a constitution describing how law making power is to be exercised and has rules describing the process for enacting laws;

o Under the agreement, have no exclusive jurisdiction – always concurrent with provincial and federal; in case of conflict, Nisga’a laws prevail on matters which are internal to the nation, their culture or operation of government or exercise of treaty rights; in other cases, if there is a conflict federal or provincial prevails; also many areas where they don’t have jurisdiction

Chief Gosnell’s Speech of Struggle  “It is a triumph because, under the treaty, we will be allowed to make our own mistakes, to savour our own victories, to stand on our own feet once again; emphasizes self-reliance, personal responsibility and modern education

11  “A triumph that signals the end of the Indian Act – the end of more than a century of humiliation, degradation and despair”

 “We governed ourselves according to Ayuukhl Nisga’a, the code of our own strict and ancient laws of property ownership, succession and civil order”

 “In 1913, the Nisga’a Land Committee drafted a Petition to London. The Petition contained a declaration of our traditional land ownership and governance and it contained the critical affirmation that, in the new British colony, our land ownership would be respected.”

Douglas Sangers: “We Intend to Live Here Forever: A Primer on The Nisga’a Treaty”  Contentious

 Supporters:

. Treaty will move us away from paternalism in Indian Act; towards Nisga’a self government based on constitutionally protected treaty right

. Treaty settles land claims in the Nass River Valley by compromise that gives a portion to the Nisga’a while leaving most of the land and resources under the dominant legal system (desirable for economic development – no more court claims)

. The Nisga’a government will be both recognized and integrated into the constitutional system of Canada

 Critics ( largely non-Indian) :

. System of government that is race based and analogous to apartheid

. Constitutionally protected self government system is major shift and requires referendum

. Non-Nisga’a’s living on their land will become second class

 In general, first nations people are also critical of the treaty: “the BC Indian Act”; criticized for creating only limited self government; does not address issues of Indian sovereignty

Campbell v. BC (AG), 2000 BCJ No. 1524 (BCSC)  Liberal objection to the treaty; main issue was whether treaty was inconsistent with separation of powers and thus of no force or effect

Aboriginal right to self-government, though limited, was not extinguished by the assertion of crown sovereignty. Indian Act regulates, but did not extinguish. Key [57] Review is sufficient to show that the legislative powers of the Nisga’a government Obiter are significantly limited by the treaty itself [59] The heart of this appeal is that any right to such self-government or legislative power was extinguished at the time of confederation

12 [179] Post 1982- the rights to self government may be defined (given content) in a treaty, which the Nisga’a treaty does [183] The Nisga’a government, as subject to both the limitations set out in the treaty itself and the limitation guarantee in s. 35 of the charter does not have absolute or sovereign powers Reasons  The BNA Act did not exhaustively distribute all legislative powers between provinces and federal government  The division of powers did not prevent the federal government historical to negotiate treaties with aboriginal nations  Long before the enactment of s. 35, aboriginal rights forced part of the unwritten principles of our constitution  Listing of jurisdictions in 91 and 92 was not to eliminate diversity, but simply to ensure that the local and distinct needs of upper and lower Canada were protected in a federal system  Aboriginal rights and in particular a right to self-government akin to legislative power to make laws, survived as one of the unwritten “underlying values” of the constitution outside the powers distributed to parliament and the legislature in 1867  Since 1867 courts have enforced laws made by aboriginal societies

Facts  Treaty purports to exhaustively define treaty rights of Nisga’a Nation  Two areas of land involved, one where they get the fee simple and a larger one where they have hunting, fishing and trapping rights  Four components 1) Substitution for aboriginal title with grant of fee simple to 2km of land (area much smaller than originally claimed) 2) Definition of existing hunting, fishing and trapping rights 3) Payment of money over period of years for compensation over what has occurred since arrival of euro’s 4) New order of government for Nisga’a  Divided into two branches: Lisims Government (nation- intergovernmental relations) and Village governments (villages)  Governed by constitution

Legislative  Power to make laws over subjects which generally fall into two groups: Powers of 1) Conflict where Nisga’a will trump: the Nisga’a . Identity of Nisga’a people, education, preservation of culture, governmen use of land and resources t . Some of these areas remain subject to federal and provincial guidelines 2) Conflict where fed/prov > Nisga’a . Ex. Court or police service must be approved by provincial gov . No power to make criminal law . Right to harvest fish, but are subject to provincial and federal conservation efforts

Issue The portions of the Nisga’a treaty that hold that Nisga’a law trumps federal or provincial law in certain areas is said to be inconsistent with the division of powers and of no force or effect.

13 Held Dismissed

BC  This is establishing a new governmental system in British Columbia which is Argued: inconsistent with the division of powers and is thus of no force or effect. Specifically, those provisions which say that in the event of a conflict, Nisga’a law will prevail  After the BNA Act, any right to self government was nullified  Sections 91 and 92 exhaust legislative power (and thus creating a third order of government would require constitutional amendment)  Essentially that there can be no more legislative power to give to aboriginal peoples

ABORIGINAL RIGHTS

GENERAL TEST FOR ABORIGINAL RIGHT 1. Defining the Aboriginal right

 Burden on applicant 14  Based on evidence introduced

 If right established, move to 2.

2. Has the right been extinguished?

 Burden on Crown, high standard

 Must show clear and plain intent to extinguish

 If not extinguished, move to 3.

3. Prima facie infringement

 Burden on applicant

 Options:

 If prima facie infringement

4. Justification of infringement

 Burden on crown

 2 requirements:

1) Valid legislative objective

2) Honour of crown upheld in pursuance of that objective

ABORIGINAL RIGHTS: A FRAMEWORK  Aboriginal rights exist because they were derived from Aboriginal laws, governance, practices, customs and traditions.

 Exist in Canadian law because they were not extinguished upon British or French assertions of sovereignty or establishment of government authority in what is now Canada; not because of governmental recognition

 Aboriginal rights continue to be part of Canadian CL, constitution and are also protected and reflected in aboriginal legal systems

 Sometimes referred to as “rights plus” (i.e. in addition to the other common law rights that aboriginals have

ABORIGINAL PEOPLES, CANADA AND THE CONSTITUTION  Constitutional Sources

 Written and unwritten

15  Aboriginal rights are one of these unwritten terms (Campbell v. AG (above))

o Fill gaps between fed. And prov. Governance powers

 Much of the discussion centers around a written formal division of powers and has ignored implicit (i.e. unwritten) aboriginal rights

 Constitutional Suspicions (1867 – 1968)

 Minimal formal protection of aboriginal rights in BNA bred distrust among aboriginals

o Did not participate in confederation talks

o Deny legitimacy of constitution on that ground

 Many fear the constitutionalization of rights could further erode their language, culture and governments

 Many aboriginals regard constitutional entrenchment as an attack on their inherent rights as peoples and feel that their distinct legal personality is potentially undermined through such provisions

 Constitutional Discussions (1968 – 1981)

 Aboriginal peoples shut out of early attempts at patriation

o Victoria Charter – no discussion of Indian peoples

 If steps taken, must be discussions about Indian self-determination

 Constitutional Amendment Strategies (1981)

 The constitutionalization of aboriginal rights faced opposition from domestic aboriginal groups and organizations

o Constitutional Express – started from BC to Ottawa to protest the partition of the constitution

o Declaration of First Nations – continued to New York and Rotterdam voicing international concerns

 Constitutional Entrenchment, s.35 (1982)

 Provinces insisted on adding “existing”, though had been extinguished

16  For some Indians, is cause for celebration, but not everyone happy about it

 Reference re The Constitution Act of Canada

 Held “unilateral patriation by the federal government was legal”

 But they did need “substantial degree” of consent -> feds and prov. negotiate

 Aboriginal rights taken off agenda at negotiations

o Reintroduced after protests (primarily driven by Metis and Inuit organizations

 The Future

 Uncertain how the constitutionalization of aboriginal rights will affect the future going forward:

 Pro: s. 35(1) appears to prevent Canada from unilaterally extinguishing abo and treaty rights

 Con: broad power to infringe aboriginal and treaty rights undermines much of the autonomy and powers of governance many were seeing prior to section 35’s encroachment

CHARACTERIZATIONS OF ABORIGINAL RIGHTS BY THE COURTS Case Characterization of Aboriginal Rights Connolly v. Quebec court affirmed the existence of Cree Law on the prairies and recognized it as a part of Woolrich common law (1867) “Beyond controversy that political organization, the laws and usages of Indian tribes were not abrogated by the European arrival – were left in full force and were not even modified in slightest degree” Doctrine of In many instances, pre-existing aboriginal rights were not abrogated by Canada’s constitution; rather Continuity they were affirmed through treaties and practices: Aboriginal rights were received into British law by a process known as the Doctrine of Continuity R v. “European settlement did not terminate the interests of Aboriginal peoples arising from the Mitchell historical occupation and the use of land. To the contrary, Aboriginal interests and customary laws (2001) SCC were presumed to survive the assertion of sovereignty” Mitchell Aboriginal Rights and Indigenous Laws Continue to Exist in Canada unless: (2001) SCC 1. They were incompatible with the Crown’s assertion of sovereignty 2. They were surrendered voluntarily via the treaty process 3. The government extinguished them Haida “Aboriginal peoples were here when Europeans came and were never conquered” (2004) R v. Adams “The fact that a particular practice, custom or tradition continued following the arrival of (1996) SCC Europeans, but in the absence of the formal gloss of legal recognition from European colonizers, should not undermine the protection accorded to aboriginal peoples. Section 35(1) would fail to achieve its noble purpose of preserving the integral and defining features of distinctive aboriginal societies if it only protected those defining features of distinctive aboriginal societies enough to have

17 received the legal approval of British and French colonizers”

R v. Sparrow [1990] 1 SCR 1075 Facts Aboriginal man charged under Fisheries Act s. 61(1) w/ fishing with net longer than was permitted by terms of the Band’s Indian Food Fishing Licence. Issue Is the net restriction contained in the Musqueam Indian Band Indian Food Fishing Licence (march 30th, 1984) issued pursuant to British Columbia Fishery Regulations an Fisheries Act inconsistent with s. 35(1) of the Constitution Act 1982?

Is parliament’s power to regulate fishing limited by s.35? (π argues was exercising existing aboriginal right to fish and net length restriction conflicted w/ s.35 (1) of the constitution and thus invalid)

Held Appeal dismissed (judgement for crown) – new trial granted - conviction set aside

“Existing” Does not revive extinguished rights- “Existing” makes it clear that applies to only those rights in existence when Constitution Act 1982 came into effect (Patchwork quilt dilemma) “Existing aboriginal rights” must be interpreted flexibly so as to permit their evolution over time, “frozen rights” approach rejected rights can develop throughout time, but see this limited in Pamwagen “Existing” suggests that those rights are “affirmed in contemporary form, rather than in their primeval simplicity and vigour”

Nature and Drawn from Musqueam perspective: food, ceremonial Scope of Ab -Integral to lives, culture -No test created here (Crown did not contest scope), but shows court expects to take account of Right Aboriginal perspective  see more in Vanderpeet

Crown argues: Evidence insufficient to discharge π’s burden of proof on whether he had existing Regulated  aboriginal right which arose from historic occupation. Detailed restriction and detailed regulation Extinguished under fisheries act had extinguished aboriginal right to fish. Extinguishment need not be explicit, just inconsistent with continuing enjoyment of aboriginal rights. Court: Crown Argument confuses regulation with extinguishment. Just because a right is controlled in great detail by the regulation does not mean that the right is thereby extinguished

Test for Crown’s intent must be clear and plain if it is to extinguished an aboriginal right Extinguishment These permits were simply a manner of controlling the fisheries, not defining underlying rights Aboriginals do have existing right to fish in the area π was arrested in. Approach consistent with ensuring right not defined by incorporating ways it has been regulated in past. Anthropologic evidence relied on to show existence of right – Scope is confined to right to fish for food and ceremonial purposes for this case

“Recognized Court: Plaintiff (Sparrow): S. 35(1) represents the culmination of a long and difficult struggle in Effect of 35(1) is to and Affirmed” both the political forum and the courts for the constitutional effectively deny parliaments recognition of aboriginal rights rights under 91(24) and 91(12) s. 35(1) provides solid constitutional base upon which subsequent 35(1) serves protective and negotiations can take place remedial purpose, any regulation limits imposed by government cannot be inconsistent with that Must be construed in purposive way, calls for generous and In certain circumstances, liberal interpretation of words necessary and From Nowegijicj v. The Queen (1983) SCR: “treaties and reasonable conservation statutes relating to Indians should be liberally construed and measures might qualify doubtful expressions resolved in favour of the Indians”

18 General Principle: government has responsibility to act in fiduciary capacity with respect to aboriginal peoples. The relationship between Government and Aboriginals is trust-like, rather than adversarial, and contemporary recognition and affirmation of aboriginal rights must be defined in light of this relationship Section does not mean that any law or regulation dealing with aboriginal rights will be of no force or effect, just demands justification for any government regulation that infringes upon or denies those rights The government is required to bear the burden of justifying any legislation that has some negative effect on aboriginal protection under s.35 (1)

Test for 1) Does the legislation in question have the effect of interfering with an existing interference aboriginal right? with existing  If yes, prima facie infringement of s. 35(1) aboriginal right Inquiry steps 1. Reference to characteristics or incidents of rights at stake Crucial to be sensitive to aboriginal perspective itself on the meaning of the rights at stake 2. Is there infringement? (From Aboriginal perspective) i. Limitation unreasonable? OR ii. Does it impose undue hardship? OR iii. Does it deny holders preferred means of exercising that right? – Onus lies on group claiming infringement o Asks whether the purpose or effect of the restriction on net length unnecessarily infringes on interests protected by fishing right

2) Justification (if yes to 1.) 1. Is there valid legislative objective? 2. (If yes to above) must consider special fiduciary obligation Right of aboriginals to fish for food second only to conservation i. Has there been as little infringement as possible? ii. Is fair compensation available? iii. Has aboriginal group in question been consulted with respect to conservation?

Justification: what counts? 1. Valid Legislative Objective  Conservation  Protect against harm 2. Honour of the Crown  Priority  Infringe as little as possible Troubling because adds something similar to s.1 justification. Why can government infringe rights? No s. 1 textual permission to do so. Court: rights are not absolute, therefore they can be infringed.

19 Application to Burden first on π to show infringement, if infringement found, burden shifts to crown to facts justify it. Effect of s.35(1) Court assumes crown sovereignty and underlying title – “there was from the outset on parl’ sov’ never any doubt”  Recognizes crown’s historic neglect  S.35(1) “changes the rules of the game” Must construe s.35(1) purposively, generously, liberally, trust-like, not adversarial  Will allow Crown to extinguish rights, but must interpret indigenous rights broadly as possible within that Crown’s sovereignty can be constrained because s. 35(1): 1. Incorporates fiduciary duty 2. Measure of control of government conduct 3. Strong check 4. Government bears burden of justifying negative effects

R v. Vanderpeet [1996] 2 SCR 507 Test (para 46) in order to identify whether an applicant has established aboriginal right protected by s. 35(1): In order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right

Ratio where a community can demonstrate that a particular practice custom or tradition is integral to its distinctive culture today, and that this practice, custom or tradition has continuity with the practices, customs and traditions of pre-contact times, that community will have demonstrated that the practice, custom or tradition is an aboriginal right for the purposes of s. 35(1) Facts Δ charged under Fisheries Act with offence of selling fish under Indian food fish licence contrary to British Columbia Fishery (General Regulations)  No person shall sell, barter or offer to sell or barter any fish caught under the authority of an Indian fish food license Issue 1. How should the aboriginal rights recognize and affirmed by s. 35(1) of the Constitution Act 1982 be defined? 2. Do the Stolo have an aboriginal right to fish for commercial purposes? Held Dismissed. Do not have right to exchange fish for money Vanderpeet’s By selling the fish I was exercising aboriginal right to sell fish – Section 27(5) of the argument regulations are inconsistent with my aboriginal right and violate the charter The court of appeal erred because it defined aboriginal rights through identification of pre- contact activities instead of as pre-existing legal rights Introduction and Aboriginal rights must be viewed differently from Charter rights because they are rights interpretation held only by aboriginal members of Canadian society The court must define the scope of s. 35(1) in a way which captures both the aboriginal and the rights in aboriginal rights Best way to do this is to identify the interests 35(1) was meant to protect through a purposive approach

General Principles Sparrow- must give large and liberal interpretation – in favour of natives Applicable to This arises from fiduciary relationship, general principle must inform the court’s analysis of

20 Legal Disputes the purposes underlying s. 35(1) and that provisions scope between Aboriginal Peoples and the Crown Purposive Analysis Court must explain rationale and foundation of recognition of special rights of aboriginal of Section 35(1) people In my view the doctrine of aboriginal rights exists and is recognized and affirmed by 35(1) because when Europeans arrived here aboriginals were already here living in communities and participating in distinctive cultures S. 35(1) provides the constitutional framework through which the fact that aboriginals lived on the land in distinctive societies is acknowledged and reconciled with the sovereignty of the crown:  the aboriginal rights recognized and affirmed by s. 35(1) must be directed towards the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the crown “Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory”

“The challenge of defining aboriginal rights stems from the fact that they are rights peculiar to the meeting of two vastly different cultures; consequently there will always be a question about which legal culture is to provide the vantage point from which rights are defined… a morally and politically defensible conception of aboriginal rights will incorporate both legal perspectives”

Test for Test must aim at identifying the practices, traditions and customs central to the aboriginal Identifying societies that existed in North America prior to contact with the Europeans Aboriginal Rights Identifying those practices, customs, and traditions that are integral to distinctive aboriginal in Section 35(1) cultures will serve to identify the crucial elements of the distinctive aboriginal societies that occupied NA prior to the arrival of Europeans

Ten Steps to consider in applying the distinct culture test 1. Courts must take Sparrow: crucial to be sensitive to the aboriginal perspective itself on the meaning of the into account the rights at stake perspective of This perspective must be framed in a way that is cognizable to the Canadian constitutional aboriginal peoples structure themselves Court must be sensitive to aboriginal rights, take into account aboriginal perspective but [49-50] do so in ways that are cognizable to the non-aboriginal legal system True reconciliation places equal weight on each legal system

2. Courts must In order to determine whether it meets test, court must first correctly determine what it is identify precisely being claimed the nature of the to characterize a claim correctly, court should consider such factors as the nature of claim that is being the action which the applicant is claiming was done pursuant to aboriginal right, the made in nature of the governmental regulation, statute or action being impugned and the determination of practice, custom or tradition being relied upon to establish the right Aboriginal Right activities must be general rather than specific level [51-54] Court must bear in mind that the activities may be the exercise in a modern form of a practice, custom or tradition that existed prior to contact and should vary its characterization of the claim accordingly

3. In order to be claimant must demonstrate that the practice was one of the things that made the society integral as distinctive- made the society what it was practice: custom or only by focusing on the aspects of the society that make It distinctive can the definition of

21 tradition must be aboriginal rights accomplish the purpose underlying s. 35(1) – integral to reconciliation of central with the crown to protect these significance to the significance of practice will inform court whether that practice can be said to be truly aboriginal society integral to the distinctive culture in question in question practical way of thinking about this is whether without this practice, custom or [55-59] tradition the culture in question would be fundamentally altered. Was it a defining feature of the society?

4. The practices the time period a court should consider in identifying whether the right claimed meets the customs and standard of being integral to the community claiming right is period prior to contact with traditions which European societies constitute rights relevant time period is the period prior to the arrival of Europeans, but period prior to are those that have assertion of sovereignty by crown continuity with evidence simply needs to be directed at showing which aspects of the aboriginal community practices that and society have their origins pre-contact existed prior to the concept of continuity is the means by which a frozen rights approach will be avoided. contact The evolution of practices, customs and traditions into modern forms will not, provided [60-67] that continuity with pre-contact practices exists, prevent their protection as aboriginal rights break in continuity chain will not preclude right

5. Courts must court should interpret evidence being conscious to social nature of aboriginal claims and approach rules of difficulty of showing evidence of pre-contact times – courts must not undervalue the evidence in light of evidence presented by aboriginal claimants simply because that evidence does not Evidentiary conform precisely with the evidentiary standards that would be applied in private law case difficulties inherent in adjudicating aboriginal claims [68] 6. Claims to must focus on general rights of group claiming right – determined on group by group basis aboriginal rights must be adjudicated on a specific rather than general basis [69] 7. For a practice, court must ensure that the right claimed is independently significant to community claiming Custom or it –cannot exist incident to another practice or custom but must be distinct. (Further Tradition to discussion of incidental to main right) constitute an aboriginal right it must be of independent significance to the aboriginal culture in which it exists [70] 8. The integral to a does not have to be distinct to that aboriginal group, just distinctive distinctive culture test requires that a practice, custom or tradition be distinctive, it does not require that that practice be distinct [71]

22 9. The influence of European arrival and influence cannot be used to deprive an aboriginal group of an European culture otherwise valid claim to aboriginal title will only be relevant to the inquiry if it is demonstrated that the practice, custom or tradition is only integral because of that influence [73] 10. Courts must take aboriginal title is a sub claim of aboriginal rights, which deals with right to land. into account both the  Courts must not focus entirely on the relationship of aboriginal peoples with the relationship of land that they lose sight of other factors relevant to identification of aboriginal aboriginal peoples to the land and the rights distinctive societies and cultures of aboriginal peoples [74] Application These people only fished commercially incidentally prior to the arrival of Europeans

Borrows: Comments on ten Steps 1) Aboriginal  Have to make sure perspective is cognizable to Canadian law. perspective  Can’t just construct something outside the way we think about rights.  Has to be within the general legal system of Canada.

2) Precision  Right must be defined with precision; look to the nature of the action (i.e. giving of the fish for money), nature of the government regulation, and then calibrate that against the custom or tradition relied on.  Consider what’s being done here at a specific level; can take a modern form of the practice.  A lot of the action in the last 10 years on cases has been on this point;  Have to be precise about what you’re defining to rely on to establish the right.

3) Centrality  What you’re looking at is a central and significant part of the culture, what truly made the culture what it was  Critique: not what it IS today, but what it WAS  Para 59: practical way of looking at this problem

4) Continuity  Is what it was equivalent to what it is today?  Want continuity of the practice with how people are expressing their practices today  Give it a flexible interpretation  Don’t have to have an unbroken chain; can be interruptions, but need some kind of lineage of that practice to say that what you’re doing today is ancestral to what you’re doing today 5) Evidence  Special rules of treatment; don’t undervalue the claims of aboriginal peoples because they use oral tradition  Doesn’t conform with evidentiary standards; don’t undervalue it. 6) Specificity  Goes with precision  Don’t look at these in a general universal way; it’s a case by case basis. Just because one

23 group has a right doesn’t mean that another group has it  Just because Catholics have a certain right doesn’t mean the Methodists do…?  Is this right?  Not the way the US deals with it; it is general and universal. US tribes have a right to self governance, food purposes by and large. No government extinguishment. Haven’t taken that standard in Canada.  In Sparrow worried about patchwork quilt; we’ve abandoned that quilt for this one – one even more fragmented. 7) Not  Right claiming is not incident of another right Incidental  i.e. Simon case: charged with carrying rifle contrary to provisions to a reserve; I have a right to hunt under treaty; you’re right, and therefore you have an incidental right to carry firearm.  Under this formulation, right to possess firearm is incidental and could not claim validity of that provincial law based on the incidental nature. You have the right to hunt, not carry a firearm.  Simon predated Van der Peet. 8) Distinctive  Distinct vs. Distinctive  Don’t have to be the only group that can fish; not the only group that claims hunting, but it has to be distinctive/distinguishing characteristic of the group. 9) European  If the PCT arose solely due to European influences, then PCT will not meet the standard for Influence recognition of the aboriginal right.  Ridiculous; just because size of market changed because of Europeans; recognized a huge commercial right that was spurred on by Europeans.  In essence this freezes rights  frozen rights element. Their argument is that once you have a right to fish, you can use modern implements, but don’t make that point that it is frozen if it only develops from Europeans  Adaptability to European colonialism.  Originalism – we rejected that in 1867; we have a living tree. We have an enclave that is not a living tree; special type of originalism called aboriginalism developed from stereotypes.  Borrows: nothing more integral to a culture to be able to adapt and take on new influences 10)  Rights and title are related concepts; title is a sub-category of rights Land/Social  To decide if right is made out, look to both the relationship of an aboriginal claimant to Distinction land and PCT arising from claimant’s distinctive culture and society

R v. Gladstone [1996] 2 SCR 723 (135-141) Modifies test for infringement: becomes a balancing test (if dealing with commercial rights)  Importance to Aboriginal group vs importance to crown/other community  Sets up priority Ratio Commercial sale or barter of herring spawn on kelp is an aboriginal right, since it was found to constitute a central, significant and defining feature of the culture of the Helisuk prior to contact

24 Where the aboriginal right to be given priority is one without internal limitation, courts should assess the governments actions to see whether the government has given exclusivity to that right, but rather to determine whether the government has taken into account the existence and importance of such rights [63]

Issue Can the government actions infringing this aboriginal right be justified?

Facts Court addressed the application of the justification test outlined in Sparrow to laws that unduly interfered with the exercise of aboriginal commercial fishing Δ attempted to sell herring span on kelp without a proper licence Δ argued he was exercising a pre-existing right to fish for commercial purposes

Held There was aboriginal right, that had not been extinguished and there was a prima facie infringement Infringement Must apply Sparrow test and adapt justification test to adapt it to the circumstances of this appeal [54] This case differs from Sparrow in that there is no internal limit on this right. The right to sell commercially has no limit; the evidence in this case does not call for limiting right to sell just for livelihood. [57] Not appropriate to give priority here, as there is no internal limit on the right. Would give aboriginals exclusive access to the commercial fishing. [58-59] The basic insight of Sparrow that aboriginal rights holders have priority in the fishery, is a valid one. But needs to be rearticulated to this case. [61] Priority to be applied when there is no internal limitation is different. Government must demonstrate that it has taken account of aboriginal rights in the allocation of the resource. [62] Right is both procedural and substantive; at stage of justification government must demonstrate both that process by which it allocated the resource and the actual allocation of the resource that results from that process reflect the prior interest of aboriginal rights holders in the fishery. [62] Questions:  Has government accommodate ability of aboriginals to participate? whether government  Do their objectives in enacting scheme take into account aboriginal rights? has granted  Is extent of participation of aboriginals in trade proportionate to their numbers in pop? priority to aboriginal  How important is fishery to band in Q rights holders Compelling Difficult to see why the government allocate the herring the way it did [69] and There was no evidence provided to the court about the objectives the government was pursuing in Substantial allocating the herring resources the way it did [70] Limitation placed on aboriginal rights where the objectives furthered by those limits are sufficiently important to the broader community as a whole, are equally part of that reconciliation may be justified. [73] Conservation can be said to be a compelling and substantial objective which, provided the rest of the Sparrow standard is met, will justify governmental infringement of aboriginal rights [74]

In the right circumstances, objectives like economic and regional fairness are in the interest of all Canadians and the reconciliation with aboriginal societies will depend on their successful attainment [75] Judgement (Evidence too sparse for court to make ruling on whether government regulation of hering is on justified; conservation played a role. [77] Justification

25  Additions from Delgamuukw :

 Sets out possible justifications for infringement

 Crown allowed to develop beyond point of contact for colonial purpose, Aboriginal rights not allowed to develop

 Question really focuses on the 2nd part of the test: honour of the Crown

ABORIGINAL TITLE – HISTORIC

Aboriginal Connection to Land Creation  Many creation stories have creation occurring within the place where reside Time  Time depth  Time immemorial Identity  Land is the people  See their own identity and selves in terms that are very integrated with the surrounding territory. Kinship  Earth as mother; animals/plants/rocks as brothers and sisters, kin.  Precludes ownership  Inheritance: earth outlives man  Calder: can’t just take analogies from doctrine of estates; have to give aboriginal title its own meaning within the conception of its people. Animacy  Earth is animate and living  Dependence on Ceremony  Animacy is respected in ceremony need to find ways to reach out to  Bottom ½ Jon Snow’s statement about relationship with the land (p. 183): Idea of practicing property law, aboriginal title was to be engaged as kin, listen to and watch landscape, and respond appropriately.  Be careful of romanticizing, and recognizing that not all indigenous people hold these same views of looking at the world this way! Stewardship  Both directions: earth as steward, and humans as stewards of earth  Relationship more than a resource  Reciprocity: World does not revolve around us, and a sense that there are things going on around us where we are the beneficiaries; there’s a trustee that watches over us!

CL: Aboriginal Title and Law of Nations  Doctrine of Discovery

 Background image: manifest destiny

 Presumption of automatic crown title

26  Obvious problem: already discovered

 In Law of Nations, often read Indigenous peoples out – too primitive to “claim” or benefit from Doctrine

 Occupation

 Also problematic because already occupied

 Adverse Possession

 In property law, if in possession for X years and owners don’t object

 But in most cases, there was constant resistance/objections, wasn’t “quiet enjoyment”

 Conquest

 War or “superior force of culture”

 Very few instances of declared war outside of Atlantic Canada (and there, peace and friendship treaties did not include conquest), most of the treaties did not proceed by way of conquest

 Even if was conquest, Law of Nations leaves intact law of peoples and possession until such time as was clearly taken away (this hasn’t happened, therefore would still have possession)

 Conquest of culture? Rejected by SCC in Haida: Aboriginal peoples were never conquered.

 Cession

 At least doesn’t assume inferiority

 Doctrine that would be most consistent with democratic/constitutional state

 Can still critique: terms of?

 Recognition, Delineation, and Protection

 Standard of American declaration on rights of man, UN Declaration on Rights of Indigenous Peoples

 Several courts: just recognize that is Indigenous land, then proceed

 Symbolic Acts

 Cross on Gaspé (Cartier)

 Requerimiento: Spain  islands in South America

27  Royal Proclamation of 1763

Early Canadian Aboriginal Title Jurisprudence

St. Catherine’s Milling & Lumber Co. v. R (1888) (210-217) Ratio Aboriginal title is a burden on the underlying crown title and is a personal and usufructory right which can be extinguished by the will of the sovereign. There is always underlying title with the Crown, substantial and paramount estate residing with the Crown (Indian interest is “on top of it” by way of Royal Proclamation)  When estate extinguished, full rights accrue to province, not feds  Power of feds over Indian land is administrative, not power to hold lands Issue Who gets the beneficial interest after “surrender” (province or feds)? Who owns the land? Facts  Aboriginal group surrendered 50,000 square miles of land to the queen under a treaty.  Indians have right to hunt and fish throughout territory under treaty  Each of the dominion and province claim that extinguishing the title of the Indians has been to transmit the beneficial interest in the land to them (want to harvest timber)  Dominion of Canada issued permit to π to cut timber  Province seeking: 1) declaration that timbre company has no rights to timber 2) injunction not to trespass 3) injunction regarding timbre already cut 4) decree for damage Held Vested in crown, provinces can tax proceeds from sale of such timber  Act of 1867 transferred all former Indian land from the provinces to the dominion  91(24) Indians and land reserved for Indians Rsns Royal proclamation – any lands and territories as not having been ceded to or purchased by us are reserved to them (Indians) or any of them as their hunting grounds

Protection for all the land and territories not within their limits or within the territories of lands granted to the Hudson’s bay company for the use of the Indians The tenure of the Indians is a personal and usufructury right, dependent on the good will of the sovereign The land itself is vested in the crown, as it was ceded to the dominion, the right to any revenue produced from those lands goes to the provinces It appears that administration of all land reserved for Indians and Indian affairs generally shall be vested in federal government

Calder v. BC (AG) [1973] SCR 313 (217-236) Hall, Majority: Ratio Although aboriginal groups had a title interest, independent of the royal proclamation, predating confederation, this had been extinguished but the provincial government’s sovereignty and attempts at control over aboriginal lands in pre-coneracy BC. Issue 1 Has the Nisga’a title to their land been extinguished? Held Yes. Reason St.Catherines: found royal proc. (1763) was origin of title - But not the only source

28 s Aboriginal title in BC does not owe its origin to the royal proclamation Facts  Nisga’a tribe -> want declaration that their title never extinguished  Area in question 1,000 square miles around northwestern BC  Bulk of area remains unalienated  No treaty ever created  Nisga’a been claiming ownership as far back as 1888 Calder  Title from traditional occupation argues:  Not dependent on any recognition  Alternatively, royal proclamation recognizes that BC is indian territory  Our title has never been extinguished Hall, Dissent: Ratio An Aboriginal groups prior possession in and of itself is proof of ownership; the onus of extinguishing this title lies on the crown and notice of the intention must be clear and unequivocal Issue 2 Has any right or title the Indians possess as occupants of the land from time immemorial been extinguished? Held No. not extinguished Δ There has never been any right or title to extinguish  Alternatively, it was extinguished between 1858 and 1871  Concede that nothing has been done since then to extinguish Reasons  Never conquered, nor did enter into treaty or deed of surrender (obiter,  Federal government never took any steps of procedures to extinguish Indian right of but title after BC entered confederation useful)  Not prescriptive right, as that implies that someone claimed prior possession (which is not the case, as the nisga’a have had it since time immemorial)  Possession is itself proof of ownership, the nisga’a are rightful owners of the lands  Burden now rests on crown to prove extinguishment  Aboriginal Indian title does not depend on treaty, executive order or legislative enactment Takeaway: pre-Delgamuukw test for aboriginal title- prior possession in and of itself gives rise to title and the onus of extinguishing this lies with the crown

Court split:

ABORIGINAL TITLE: DELGAMUUKW

Leading up to Delgamuukw St. Catherines – personal, usufrcutory, dependent on good will of Crown Calder – title justiciable, pre-existing Baker Lake – elements for proof Guerin – title is sui generis Adams – title is distinct subset of Aboriginal Rights

Baker Lake 4 elements of proof 1. Organized

29 2. Specific Territory 3. Exclusive 4. At the time of assertion of crown sovereignty Problem Tries to correlate Aboriginal use of land into Western CL conceptions of property “Organized in societies” NB: not the test used today, but see it folded in to Calder  Has proved problematic for title claims  Draws from Worsester, Re Southern Rhodesia Cases (there can be “law enough” society that can’t hold property)

Guerin Characterization of Aboriginal “An independent legal right” Title  Does not owe its source to Royal Proclamation  Crown’s identification of Indian interest does not create that interest Doctrine of Discovery  Indian title predated and survived claims of sovereignty  Principle of Discovery which justified these claims gave underlying title to discoverer, therefore diminishes Indian rights to land  Aboriginal title is a burden on that underlying crown title (if extinguished, province gets full title)  Doctrine puts burden on Aboriginal group to prove had title at assertion of sovereignty (doctrine does a lot of work for the crown) Attempt to reconcile conception Court: this is just inappropriate terminology, not actually a tension. of title as “beneficial interest” vs  Interest is sui generis and can’t be described in CL terms “personal, usurfructory”

Delgamuukw Facts Π claimed 50,000 km2 in British Columbia.  Claim originally for ownership of the territory and jurisdiction over it (transformed into a claim for aboriginal title and self government)  Archaeological evidence, accepted at trial, that there was some form of human habitation in the territory and its surrounding areas from 3,500 to 6,000 years ago  Social organization: house structures (see description in case)  HBC trader in 1822 called them “men of property”  Oregon Boundary Treaty 1846, crown proclamations & ordinances  Political and legal rights / opportunities to address title concern prevented earlier History of case:  Claim defeated in BCSC, change in political context at CA o New government replaces legal team, changes position o Still contest title but concede governance o CA concerned about both sides arguing same side, appoints amicus curie (using same lawyers from the Trial) Issue What is the nature and scope of the constitutional protection afforded by s. 35(1) to C- Law aboriginal title Held New trial ordered – take into account test and evidentiary changes Δ argues Counterclaim for declaration that the π have no right to the land and that their action ought to be for compensation from government of Canada Change in Legal Theory of the case:

30 Pleadings  Ownership  Aboriginal Title  JurisdictionSelf Government  Court: this change is okay, is a “de facto change” occurring in fluid area of law as more information becomes available. Does not prejudice Crown because Crown went along with it Claimants organization / amalgamation:  Houses  2 Nations  Court: not okay. This change in pleadings was not accepted by Crown, caused Crown to suffer some prejudice that prevented Court from judging merits of appeal (sent back to trial)  Consequently, rest of case is OBITER but ends up being picked up in Tsil’  Note alignment with Calder: “be careful not to prejudice Crown"

Evidence The laws of evidence must be adapted in order that this type of evidence be accommodated and placed on an equal footing with the types of historical evidence that courts are familiar with [87]  Take account of Aboriginal perspective, given equal weight  Must adapt rules of evidence in order to hear it In determination of aboriginal rights, court must appreciate difficulties with adjudicating claim in terms of rules of evidence and interpretation of evidence [80]  “Must take into account perspective of the Ab people claiming the R while at the same time taking into account the perspective of the CL” (From Vanderpeet) [81] Aboriginal rights are truly sui generis and demand a unique approach to the treatment of evidence, accords due weight to the perspective of aboriginal peoples [82]  Must come to terms with the oral histories of aboriginal societies, which, for many aboriginal nations are the only records of their past [82]  Many features of oral evidence would not work with traditional laws of evidence, but in this case they must realize sui generis nature. [86]  Trial judge erred in not allowing oral histories, are critically important to π’s case. Error of law. [107]

Content of Title a. Sui Generis – must be understood by reference to both Ab Law and CL [112]  Unique source: arises from prior occupation of Canada by aboriginal peoples, possession before the assertion of British sovereignty [114]  Inalienability: cannot be transferred, sold or surrendered to anyone other than crown [113]  Held Communally: not held by individual persons, is collective right to land held by all members of an aboriginal nation [115] b. Not restricted to traditional activities  Jurisprudence  Indian Act  Indian Oil and Gas Act c. Inherent limit  Title of peoples dependent on continuity of relationship to the land  If something done to break continuity, violates title  Standard is relaxed in Tsil’, but still there  Inherent limits not necessarily bad as a general idea, but paternalistic here

31 If prove title, content is broad:  Content is much more than the right to engage in specific activities which may themselves be aboriginal rights. Confers right to use land for various activities, not all of which need be aspects of practise, customs and traditions which are integral to the distinctive cultures of aboriginal societies [111] BUT inherent limit:  Cannot be used in a manner that is irreconcilable with the nature of the attachment to the land that forms the basis of the groups claim to aboriginal title [125]  Different that fee simple [111]  Use of lands that would threaten the future relationship are excluded from the content of aboriginal title [127]  This is why can’t be alienated [129]  Relationship btw aboriginal community and lands has important non-economic component. The land has inherent and unique value in itself. Cannot put the land to uses which would destroy that value. [130]  Can surrender to crown for valuable consideration. If aboriginal peoples wish to use their lands in a way that aboriginal title does not permit, then they must surrender those lands and convert them into non-title lands to do so [131]  BUT does not restrict to traditional activities [132] Canadian Jurisprudence on Title :  Guerin- “aboriginal title is interest in land which encompasses legal right to occupy and possess”  Paul (1988) – aboriginal title “more than the right to enjoyment and occupancy”  Grants right to broad notion of use and possession [119] Reserve Land :  Guerin- same legal principles governed the aboriginal interests in reserve lands held pursuant to aboriginal title [120]  Nature of Indian interest in reserve land broad - defined in Indian Act o 18(1) for use and benefit of respective bands o 18(2) for any other purpose for the general welfare of the band  Relates to present day needs, lands capable of being used for variety of purposes Indian Oil and Gas Act:  Aboriginal’s have interest in mineral rights to the land they have title to  Affirmed in Bluebery River Indian Band v. Canada (1995) SCR  Content of aboriginal title is not restricted to those uses which are elements of a practice custom or tradition integral to distinctive culture of the aboriginal group claiming the right. Nor does aboriginal title amount to a form of inalienable f/s s. 35(1): What is the relationship of title to s. 35 rights?  Existence of an aboriginal right at CL is sufficient, but not necessary for affirmation of that right by 35(1) [136]  It is distinct from other aboriginal rights because it arises where the connection of a group with a piece of land “was on central significance to their distinctive culture” (Adams) [137]  Think about them on spectrum [138] o Low end: practices, rights, and traditions are integral to group claiming right but occupation of land not sufficient to prove title o Middle: site specific, but cannot demonstrate title o High end: aboriginal title, right to land itself  Some groups may be unable to make out a claim for title, but will possess

32 aboriginal rights that are recognized by 35(1), including site specific. Nomadic peoples cannot prove title. [139]

Proof of Title 1. Occupied prior to sovereignty  Brings Oregon treaty back in, requires title in 1846  Mental gymnastics: calibrate Ab title by Crown sov, ab title “crystallized” at time Crown Sov asserted  Look at Ab laws and perspective (positive, but only above the already established assumption that Crown has the land)  Common Law occupation 2. Continuity of occupation – where present occupation relied upon as proof  Between assertion of sovereignty and present  No need for unbroken chain, but require substantial maintenance of connection  Assumes Tsilhqot’in law survives sovereignty, “undergirds” Ab title (assertion of Crown Sov did not extinguish Tsil’ legal relationship w/ land) 3. Exclusivity  Still some CL conception?  But could be shared, test by Ab Law

Occupied Prior to Sovereignty:  Must prove occupied lands in question at the time crown asserted sovereignty over the land subject to the title [144]  Burden on crown title, aboriginal title crystallized at t sovereignty asserted [145]  Proof of occupation is enough (don’t have to prove integral or distinctive) [145]  Physical occupation may be established in a variety of ways: from construction of dwellings to cultivation and enclosure of fields to regular use of definite tracts of land for hunting/fishing – must take into account group’s size [149]  Claim to title is made out when a group can demonstrate “that their connection with the piece of land was of central significance to their distinctive culture” [150]

Continuity of Occupation:  Must show continuity with current occupation & past occupation  Doesn’t have to be unbroken chain, as long as there is substantial connection between the people and the land that will suffice [154]

Exclusivity at time of Crown Sov:  Title vests in the aboriginal community which holds the ability to exclude others from the lands held pursuant to that title. The proof of title must reflect the content of the right [155]  CL principle derived from notion of fee simple ownership, should be imported into the concept of aboriginal title with caution. Test must take context into account. Another aboriginal group trespassing or frequenting does not extinguish exclusivity [156]

Justifying In the wake of Gladstone the range of legislative objectives that can justify infringement Infringement is fairly broad. [165]  Development of agriculture, forestry, mining, hydroelectric power, general

33 economic development of interior BC, protection of environment or designated species, building infrastructure, settlement of foreign populations [165]  1. Aboriginal title encompasses right to exclusive use and occupation of land 2. Title encompasses the right to choose what uses land will be put 3. Lands held have inescapable economic component [166]  Always a duty of consultation which will vary with circumstances – must be in good faith and must be done with intention of substantially addressing concerns of aboriginals [168]  Fair compensation will ordinarily be required if aboriginal title is infringed [169]  Crown is under duty to enter into these negotiations in good faith [186]

ABORIGINAL TITLE: TSILHQOT’IN

Tsilhqot’in Nation v. British Columbia 2014 SCC 44 Facts  Tsilhqot’in nation occupied remote valley in central BC since time immemorial  In 1983, the province granted a forest licence to a company for the cutting of trees in the area – led to a blockage and eventually title claim Issue  What is the test for Aboriginal Title?  What legal rights does aboriginal title confer? Held Tsilhqot’in people do have aboriginal title Summary 1. What is test for aboriginal title?  Test from Delgamuukw 2. What rights does title confer?  Beneficial use of the land (like f/s, but not f/s) – rights against all the world…  Inherent limit (can’t be used in a way to deprive future gen’s of the use) 3. Does BC Forest Act apply to Aboriginal title?  Pre-proof: yes  Post-proof: no. BUT province can amend the Act to make it applicable to Title land 4. What are Constitutional constraints to provincial regulation on Aboriginal title?  Pre-proof consultation procedural duties  Valid legislative objective, fiduciary obligation (honour of crown) in order to reg  Adds: “rationally connected, minimally impairing, benefit (that the province seeks) not outweighed by harm suffered (by Aboriginal group)” balancing test  Rejects IJI. Cannot rely on to say prov’ regulation doesn’t apply 5. How is public interest reconciled with title?  Jurisprudential Delgamuukw Comments on Title Backdrop  Test for title from D’ obiter  Positively – aboriginal title encompasses right to exclusive use and occupation of land held pursuant to title for various purposes, which need not be aspects of those traditional Aboriginal practices, customs and traditions which are integral to the distinctive Aboriginal Cultures

34  Negatively – protected uses must not be irreconcilable with the nature of the groups attachment to the land (cannot be alienated in a way that deprives future generations of the control and benefit of the land  Infringements of title can be justified under s. 35 pursuant to the Sparrow test Haida and Consultation  Where aboriginal group claims title and that claim is not yet proven, the government must consult with the affected aboriginal group before development can commence  Honour of the Crown

Jurisprudence established o Crown title subject to Aboriginal interest o Aboriginal title gives wide use and control o Government can infringe and justify o Pre-proof resource development requires consultation o Government has a legal duty to consult in good faith court sets out 4 principles would like to see going forward (but MOJ refutes broad application of this)

Pleadings in Courts should take Functional Approach [20] Aboriginal  Purpose of pleadings is to provide parties and court with an outline of the material Title Cases allegations and relief sought – where pleadings achieve this aim – minor defects should be overlooked  Because: (1) legal principles may be unclear at the outset of the litigation; (2) evidence as to how the land was used may be uncertain at outset; (3) goal is reconciliation and a technical approach to pleadings would not achieve this goal

Test for Sufficiency of Occupation [33-44] Aboriginal  What is sufficient must be explored from both aboriginal and c-law perspectives. [34] Title  Context specific inquiry and main question is: can the Aboriginal group in question show that it has historically acted in a way that would communicate to third parties that it held the land for its own purposes? o Must be evidence of strong presence on or over the land claimed, manifesting itself in acts of occupation that could reasonably be interpreted as demonstrating that the land in question belonged to, was controlled by, or was under the exclusive stewardship of the claimant group . Kinds of acts necessary to indicate permanent presence and intention to hold are dependant on life of people and the nature of the land: cultivated fields, constructed dwelling houses, invested labour and consistent presence on parts of the land may be sufficient, but are not essential [38] o CL test for possession must be considered alongside aboriginal perspectives [39] . CL: asserting possession of land over which no one else has a present interest or with respect to which title is uncertain o Nomadic and semi-nomadic groups can establish title to land if they establish sufficient physical possession (regular use of the territory is sufficient) [42]

35 Continuity of Occupation [45]  Only required where present occupation is relied upon as proof of pre-sovereignty occupation o Do not need to provide evidence of unbroken chain of continuity between their current practices, customs, traditions and those which existed prior to contact [42]  Just means that for evidence of present occupation to establish an inference of pre- sovereignty occupation, the present occupation must be rooted in pre-sovereignty times

Exclusivity of Occupation [47-49]  Should be understood in sense of intention and capacity to control land  Other groups on the land does not necessarily negate exclusivity of occupation  Exclusivity can be established by proof that others were excluded from the land, or by proof that others were only allowed access to the land with permission of claimant group  Fact that permission was requested, granted or refused, or that treaties were made with other groups, may show intention and capacity to control the land Factors 1) Characteristics of claimant group 2) Nature of other groups in area 3) Characteristics of the land in question

Applying Test Sufficiency [55] to the Facts  Evidence in case supports sufficiency o Population was small, but trial judge found evidence that parts of land to which he found title were regularly used Continuity [57]  This claim places some reliance on continuity o Evidence of occupation in the 1990’s, as well as archaeological evidence, historical evidence and oral evidence o Geographical proximity of sites currently and allegedly historically occupied support this Exclusivity [58]  Prior to the assertion of sovereignty the Tsilhqot’in repelled people from their land and demanded permission form outsiders who wished to pass over it

Rejection of Province’s Arguments: [59 – 65]  Province argues arbitrary boundaries, map, population size too small, inconsistent evidence, specific territories not identified  Court rejects all these arguments: court is working with uncertainty, province is trying to rely on the “postage stamp: theory, should give liberal interpretation.

36 What Rights A. Legal Characterization of Title does  Title holders have right to the benefits associated with the land – to use it, enjoy it and Aboriginal profit from its economic development. As such, the Crown does not retain a beneficial Title Confer? interest in Aboriginal title land. [70]  Crowns underlying title gives crown (1) a fiduciary duty owed to the aboriginal people when dealing with aboriginal lands and (2) the right to encroach on Aboriginal title if the government can justify this in the broader public interest under s. 35. [71]  No terra nullius, crown title is burdened by aboriginal title [69] BUT says crown has underling title, which relies on terra nullius principle  Crown title is what’s left after AB title subtracted – suggests Ab title lies on top, Crown as the “greater” of the 2

B. Incidents of Aboriginal Title  Ownership rights similar to those associated with fee simple, including: right to decide how land will be used, right of enjoyment and occupancy of the land, right to possess the land, right to economic benefits of the land, right to pre-actively use and manage the land [73]  Restriction: collective title and cannot be alienated except to the crown or used in ways that would prevent future generations of the group from using it.  Rights and restrictions flow from occupation at time of sovereignty but can develop in modern ways [75]  Right to control the land means that government and other groups seeking to use the land must obtain the consent of the Aboriginal title holders [76]

C. Justifying Infringement

 To justify on basis of greater public good, government must show: 1) Discharged its procedural duty to consult and accommodate 2) Actions were backed by a compelling and substantial objective o Broader policy goal asserted by government must further the goal of reconciliation, having regard to both the Aboriginal interest and the broader public objective [82] 3) Governmental action is consistent with Crown’s fiduciary obligation a. Cannot deprive future generations of benefit of land b. Proportionality into justification process i. Incursion must be rationally connected to government goal ii. Government must go no further than necessary to achieve it (minimal impairment) iii. Benefits that may be expected to flow from that goal are not outweighed by adverse effects on the aboriginal interest (proportionality/balancing)

 Where the Crown has real or constructive knowledge of the potential or actual existence of Aboriginal title and contemplates conduct that might adversely affect it, the Crown is obliged to consult with the group asserting title and if appropriate accommodate the right (Haida spectrum) [78] o Title proven – consultation and accommodation strongest o Unproven – crown owes procedural duty imposed by Honour of Crown to consult and if appropriate accommodate

37 D. Remedies and Transition  Prior to establishing title: crown required to consult in good faith w/ group asserting title about proposed uses and, if appropriate, accommodate interests [89]  After Aboriginal title established: crown must seek consent of title holding group to developments on land [90] o Once title is established it may be necessary for crown to reassess prior conduct in light of new reality in order to faithfully discharge its fiduciary duty to the title holding group going forward (if they start a project without getting consent pre title and then title is proven during the course, might have to cancel) [90]

Provincial  Provincial laws of general application apply to lands held under Aboriginal title, subject Laws and to constitutional constraints [101] Aboriginal  Provincial power is limited by (1) s. 35 and (2) the division of powers under the Title constitution  In Sparrow following factors relevant in determining whether law of general application results in infringement Aboriginal right: 1) Whether limitation imposed by the legislation is unreasonable 2) Whether the legislation imposes undue hardship 3) Whether the legislation denies the holders of the right their preferred means of exercising the right

IJI Doctrine should not apply in cases of aboriginal title [151]

Notes: did not ask for title to submerged lands or lands owned in f/s, will be another Q in another case.  $40K – not clear how title is going to be established going forward o Earlier cases could get $ b/c “in the public interest” but now there’s already a test case  Note significance of burden being on Aboriginal group to prove title rather than assumption and burden on Crown to disprove  Why is Crown infringement a necessary part of reconciliation? [16]

TREATIES

Alternatives to Treaties:  Consent

o Free, prior, and informed consent before developing land

o See Tsilhqot’in decision: consent placed at centre of decision in several points

38 o Royal Proclamation (and Treaty of Niagara): people’s decision-making matters

 Ongoing recognition, delineation, and protection

o Often fail to live up to, but important to use as a framework

Negative Alternatives:  Doctrine of discovery – assumes inferiority and superiority. Not satisfactory for nation that wants to work with “Honour of the Crown”  Occupation

 Adverse possession – requires “quiet enjoyment”, which did not happen. Often ended up in conflict (e.g. Tsilhqot’in).

 Conquest – if we assume conquest, sets Aboriginal peoples in perpetual conflict/resistance against the state

Treaties as Reserved Rights:  “Treaties are a grant of rights from the Indians, not to the Indians.” – US v Winans (1905)

 Therefore anything that the treaty does not grant from the Indians is reserved to Indians (don’t extinguish rights by silence)

Treaty Beneficiaries:  Aboriginal peoples: promised a number of rights

 All other Canadians: settlers (past and current) can come and live on the land without objection (where treaty signed). Where treaties have not been signed, aboriginal peoples have not granted this right to others.

Treaties are about the future  Foundational nation building agreements

 Creates certainty and division of powers – more room for Aboriginal participation that in rights and title context (where decision is made entirely by colonial court)

 View as setting the standards by which future agreements will be negotiated

o Instead of interpreting treaties as a one-off real-estate transaction (European view)

 The fact that treaties are old shouldn’t be fatal

o “As long as the grass grows, the river flows, and the sun shines…”

39 Treaties bridge legal systems  Aboriginal peoples bring their assumptions about what it means to make a promise, what kind of remedies

 Indigenous legal systems recognized

 CL legal system recognized

 Creates inter-societal law: “morally, politically, and socially acceptable” (Vanderpeet –but can apply to treaty context as well)

Types of Treaties 1. Aboriginal to aboriginal treaties

2. Maritimes

3. Douglas Treaties (BC – lower mainland, island)

4. Numbered treaties (extent for Ontario to McKenzie delta)

5. Modern Treaty Territories

Law making under modern treaties  Authority to make laws discussed in many modern treaties (but not all)

 BUT if treaties are a grant of rights from indigenous peoples, if not mentioned in treaty is still held by aboriginal group

 Examples of areas covered:

o Land use and control

o Fish and wildlife harvesting

o Licencing and regulation of business (including tax)

o Health care and services

o Language, culture, spiritual beliefs

o Social and welfare services

o Adoption, guardianship, custody, care and placement of children

o Education programs and services

o Estates

40 o Resolution of disputes outside courts

o Licences to raise revenues

TREATIES: HISTORICAL CONTEXT  Treaties are foundational documents in the history of crown-aboriginal relations

 Initially they established parameters for peaceful intercourse. Later served as basis for the parties’ renewal of their historical commitments to each other.

 They were primary means by which diplomatic relations were conducted btw Britain and the aboriginal peoples

o Took many forms: not all for succession of land

o Some were treaties of alliance, peace and friendship – shared in common the creation or maintenance of mutually beneficial relationships between the Crown and Aboriginal peoples

Report of the Royal Commission on Aboriginal Peoples: Looking Forward, Looking Back  When European settlers first arrived in Canada they traded with aboriginals, and then entered into treaties to liver permanently later on

o Early treaties: made for peace, alliance and military support

o Later treaties: treaties made to establish relationships and a way of living together in peaceful co- existence and to acquire aboriginal lands and resources

 Overtime, treaties became more difficult to negotiate

o As Europeans became a majority, treaty negotiations became more complex

o During these more complex negotiations, it was unclear whether aboriginal parties understood the legal and political ramifications of the land conveyance documents they were signing

. Also unlikely that they knew that the written texts differed from the oral agreements that they concluded (likely one party took advantage of another’s understanding)

 Several basic elements or principles involved in treaty making process

o Parties recognized each other’s authority

o Aboriginals wanted their life preserved

o The Indian parties understood that they would continue to maintain their traditional governments, their laws and their customs and to co-operate as necessary with the crown

41 . The principle of fair exchange and mutual benefit was an integral part of treaty making***

 Post-confederation treaties 1-11

 FN were assured orally that their way of life would not change unless they wanted it to

 Understood that their governing structures and authorities would continue undisturbed by the treaty relationship

 Believed they were assured their freedom and independence, which would not be interfered with as a result of the treaty

o Treaty negotiations typically took place over 3 to 4 day period

o Negotiation and dialogue did not, and could not, venture into the meaning of specific terminology, legal or otherwise, and remained at a broad general level, owing to time and language barriers

. The parties simply had to rely on trustworthiness and goodwill of each other

. The first nations also assumed, since they were being asked for land, that they were the only ones giving land to the Crown and that they were the owners of the land.

o Crown gained access to Indian lands and resources, and First Nations secured the guarantee of the survival and protection of their nationhood

The Process of Treaty-Making  Indigenous laws, legal perspectives and other frameworks have been present throughout much of the treaty- making process in Canada

o There have been over 500 treaties in Canada and many of them draw on some form of aboriginal legal tradition

o Covenant Chain Alliance: process of initiating and renewing treaty relations commenced before Europeans arrive in NA

The Changing Face of Treaties  The nature of treaties – and indeed, the entire treaty-making process – was fundamentally altered by the change in the political situation in NA following Britain’s conquest of New France in 1760-61

o After this, the strategic importance of he aboriginal nations as allies or enemies during battles between France and England for colonial supremacy ended

DN Sprague “Canada’s Treaties with Aboriginal Peoples” (1996) First Treaties: 1763-1850 42  First treaties entered into in 18th century were ones of peace and friendship o Britain solemnised its simple arrangements for peace in written text: in exchange for aboriginal peace and friendship, British negotiators promised not to disturb the other side in its essential hunting and fishing territories . The significance of the Royal Proclamation of 1763 continues to have importance

o After this, over the next thirty years, almost twenty other “land surrenders” negotiated purchases from Native people, prior to the crown opening such areas to settlers

o In 1818: a third kind of treaty replaced lump-sum payments for each surrender of aboriginal land for settlement:

. Scheme of district-by-district promises of annual payments. “Annuities” first funded by revenue flowing to the crown from sales of Aboriginal lands to settlers.

. Almost twenty such arrangements, all in present day southern Ontario, were made over the next several decades as the new norm for meeting the requirements of the Royal Proclamation

The Robinson Treaties, 1850s  Newly formed province of Canada covered vast land space, new treaty was formed for mass surrender of large plot of land o Payment of annuities and ceremonial assurances of hunting and fishing, also promised to reserve a territory for each band signatory to the treaty

 Robinson treaties became the norm for the Dominion of Canada

o Every treaty thereafter fit the basic recipe: negotiated by specifically commissioned officers of the crown to extinguish title to relatively large expanses of territory, offering vague assurances for existing hunting and fishing rights, and promising reserves as well as annuities

 After the early treaties, Canada’s desire to enter into treaties was more economically focused

Conceptualizing Crown-Native Treaties  Once the crown no longer relied upon the Aboriginal peoples as military or political allies, it tended to view the treaties it concluded with them much more like contractual agreements than compacts b/w nations

o Aboriginal view, on the other hand, remained constant with the understanding emanating from Covenant Chain

. Aboriginal understandings of treaties included oral promises or collateral representations made during negotiations, not just simple final paper copy

. This more inclusive view is often referred to as the “spirit and intent” of agreement

43 Report of the Royal Commission on Aboriginal Peoples: Looking Forward, Looking Back  To aboriginal nations, treaties are vital, living instruments of relationship

 Canadian government looks at them more as ancient history – especially the old friendship treaties

o Fact is that Canada has inherited these treaties and is still a beneficiary under them

. Aboriginals hold a spiritual aspect of treaties, do not recognize a difference between political and spiritual aspects of treaties

. Integration of spiritual and political matters extends to treaty making, where sacred wampum, sacred songs and ceremonies and the sacred pipe are integral parts of making the commitment to upheld the treaty

. Crown also gave their word they would uphold – Honour of the Crown

 Early judicial interpretations of the treaties tended to side with the European view and not recognize the aboriginal view

Cases on Early Treaty Interpretation

Courts did not regard Under the treaties the Indians obtained no right to their Attorney-General of treaties as being documents annuities, beyond a promise and agreement, which was Ontario v. Attorney that vested enforceable nothing more than a personal obligation by its General of Canada: Re rights in Aboriginal Peoples governor Indian Claims [1897] A.C. 1999 (P.C)

R v. Syliboy [1929] (Early Judicial Attitudes Towards Treaties)

Fact  “Mick Mack” chief convicted for having pelts s  He claims that he has a right under a treaty to trap  Treaty reads: “agreed that the tribe of Indians shall not be hindered from but have free liberty to hunt and fish as usual” Issue Is the Δ able to get under protection of friendship treaty? Rule Aboriginal friendship treaties are ineffective until being ratified by parliament. H No. Δ  The entire Mick-Mack tribe as a whole is indivisible, the Δ is a member of the tribe who were party to the contract  Royal Proclamation annexed Cape Breton and made them subject to the laws governing Nova Scotia, which included the treaty B/c Contract was made with small subset of Mick-Mack and Δ cannot show any connection to them Royal Proclamation of 1763 did not import treaties into Cape Breton when it spoke of “General laws” Indians were never an independent body with the power to enter into a treaty – savages’ rights of sovereignty or ownership were never recognized

44 Parliament enacted the statute inconsistent with the words of the treaty after the treaty was created, and therefore they must have known of the treaty and treated it of no force or effect.

William Wicken “The MiKmaw and Wuastukwiuk Treaties” (1994)  In recent years the Mi’kmaq and Wuastukwiuk have argued that the treaties they signed supersede provincial statutes governing their hunting, fishing and trading rights.

 Resulting litigation has focused on two principle questions

o Firstly: who signed the treaties and therefore can claim their protection?

o Second: how are the treaties to be interpreted?

 Issues with interpreting from 18th century documents, which are often fraught with inaccuracies

o We need to understand the context in which these documents were created

. Historians have to be sensitive to the particular historical context in which they live and question how this influences their perceptions of the past

The Sources  Historians and anthropologists have long recognized the difficulties of reconstructing the histories of Native societies (no written records etc)

The Treaties  Generally these records provide the basis of our understanding of the Mi’kmaq and Wuastukiuk society during the treaty making period – these records are fragmented  Documentary evidence is not readily available o Generally no records of treaty negotiations – we are reliant on European records of these negotiations which are likely not accurate re how aboriginal groups understood the treaties . Many of the words and ideas contained in the treaties could not be translated easily . Evidence that members of the aboriginal groups objected to being characterized as “subjects of the crown”

. Translation difficulties exacerbated by general notion that aboriginal people were inherently inferior

o These complications make the task of the court more difficult, and suggest that a literal interpretation of the treaties is not always valid

o We must understand the context, and the perspectives of both the European and Mi’kmaq people to get an accurate interpretation of the treaties

45 Alexander Morries, The Treaties With the Indians of Manitoba and the North-West Territories, Including the Negotiations on Which they Were Based and Other Information Relating Thereto (1880) Demonstrates Different Understandings of the Parties Regarding the Purpose of the Treaty

Takeaway: the treaty commissioner reports (written account of the process leading to the treaty) do not always represent the entirety of the agreement

 Evidence that the Indians were obstinate in their declaration that “This is our land”

 Evidence that they did not want to become her subjects

o Wheras the written preamble to the treaty makes it very clear that they are to become her subjects

 In the negotiations, the aboriginal people were acting as if it was nation to nation, while the governor clearly intended for them to be absorbed under the laws of England

 Treaty contains the phrase: “to conduct and behave themselves as good and loyal subjects of her majesty the queen”

Paulette v. Registrar of Titles (No. 2) [1973] Judicial Embrace of Aboriginal Group Oral History of Understanding of Treaty

Fact  Aboriginal band had roamed land for thousands of years to hunt for food and clothing s  Oral history says the commissioner promised a letter on fishing and trapping  The oral history suggests that the aboriginal people who entered into the contract never intended to give away their land; they saw it as an agreement to take care of the people and nothing else Issue Can caveat regarding Indian interest in Land be registered against fee simple title? Rule Aboriginal oral testimony can be used as a treaty interpretation tool. H Yes B/c Oral Evidence of Witnesses Evinces the following:  There was a general suspicion of the government  It is clear that the Indians did not understand English and there is no evidence that any of the signatories to the treaty understood English  Most witnesses were firm in their recollection that: their lands were not to be surrendered, reserves were not mentioned and the main concern and discussions centered around the fear of losing their hunting and fish rights  Apparent that fairly large segments of the Indian community were not present on the occasion of the first treaty and that the recognized leaders of the respective bands were not always there either  Common strand that the Indians were repeatedly assured they were not to be deprived of their hunting, fishing and trapping rights

46 Evidence, including the material from the archives, suggests that there was certainly a feeling of haste in the negotiations Aboriginal people here were in an extremely improvident position in terms of bargaining power

TREATIES: SECTION 35 FRAMEWORK (348-380)

Overview of Treaty Interpretation 1. How do you interpret a treaty?

 Cannons of construction

2. Who can make a treaty?

 Look at capacity of Indians, capacity of Great Britain & representatives

3. What are the rights protected by the Treaty?

 Geographic scope?

 Content?

4. What counts as extinguishment?

 Sparrow: need clear and plain intent

 Also applies to extinguish a treaty

5. How are treaty rights reconciled with other interests held by crown?

 Some reconciliation takes place on face of document, some by surrounding context

 Sioui & Badger: not incompatible use of land

More Recent Judicial Considerations of Treaties  Raise a number of questions:

o Ought different standards of treaty interpretation exist that would be applied based on perceived or presumed knowledge of the Aboriginal treaty signatories?

o Should more recent treaties not receive the benefit of the canons of interpretation because of the Aboriginals greater understanding of English and the concepts employed in treaties?

47 R v. Sioui [1990] 1 SCR 1025 (pp. 349-371) (Looking at the Historical Context of Treaty Negotiations)

Rule When considering a treaty, a court must take into account the historical context in which the treaties were negotiated, concluded and committed to writing Facts  Four indigenous people were convicted of cutting down trees, camping and making fires in places not designated in a camp ground  Δ allege that they were practicing ancestral customs and religious rights which are the subject of a treaty between their band, the Huron, and the British Issue How should we interpret a treaty? Held Yes, treaty rights are a defence here. Cd argued  British Crown could not enter into a treaty with the Hurons as it was not sovereign in Canada in 1760  The governor who entered into the agreement did not have capacity to enter into treaty with the Indians  Indian group did not have capacity to enter into a treaty because the Indian nation had no historical occupation or possession of the territory B/c We need to adopt a broad and generous interpretation of what constitutes a treaty Indian treaty is an agreement sui generis which is neither created nor terminated according to the rules of international law Hurons reasonably believed that the British Crown had the power to enter into a treaty with them that would be in effect as long as the British controlled Canada In order to find that a person had the capacity to enter into a treaty with the Indians, he or she must thus have represented the British crown in very important authoritative functions (must then take aboriginal point of view) Considering whether the British officer had the capacity to enter into a treaty, the circumstances prevailing at the time support the position that he did have capacity to enter into a treaty A territorial claim is not essential to the existence of a treaty

What characterizes a treaty is the intention to create obligations, the presence of mutually binding obligations and a certain measure of solemnity Historical context may be analyzed to help interpret a treaty document, several factors may be of assistance in determining whether parties entered into a treaty, including: 1) Continuous exercise of a right in the past and at present 2) The reasons why the crown made a commitment 3) The situation prevailing at the time to document was signed 4) Evidence of relations of mutual respect and esteem between the negotiators 5) The subsequent conduct of the parties Extrinsic evidence suggesting: 1) Historic context of the period  British and French seeking the allegiance of the Indian band 2) Historical evidence of the events immediately following the agreement  Notes from both contracting parties speaking of allegiance and treaty 3) The subsequent conduct of the parties Suggests that this document was in fact a treaty

48 A legislated change in the use of the territory does not extinguish rights otherwise protected by a treaty Cannons  Construe Park Act liberally in favour of Indians  Treaties and statutes both to be construed liberally  Broad and generous interpretation of what constitutes a treaty, who has capacity  Given liberal construction  Quotes from US case to explain reasons for this Capacities Of Great Britain, General Murray, and Huron (have capacity even though this is not their traditional territory – treaty can be about rights other than land). Is this a  Wording: look at it in broader context treaty?  Extrinsic evidence: to understand wording o Historical o Contemporaneous to treaty o Subsequent conduct Extinguis  Requires clear and plain intent h  Nowhere does the document talk about extinguishment. Treaty of Paris (between France and GB) doesn’t deal with the treaty. Royal Proclamation doesn’t extinguish. Legislative history silent on this treaty – failure to use treaty in legislature does not extinguish Park Act Purpose of act – allows for public acces. As long as Wendat not disturbing other uses, is fine. Reconciling interests.  Finds there is reconcilable use (between public access and making fire)  Needs to be flexible, give full effect to reconciliation  Can’t go into private property to do this, but is a public place

R v. Badger [1996] 1 SCR 771 (pp. 372-378) (First Case to Consider Effect of s. 35(1) on Treaties) Rule s. 35(1) test for infringement in Sparrow is the same for both aboriginal and treaty rights Fact  Δ was charged with hunting a moose out of season on private property s  Treaty was made in 1899, surrender of vast land tracts in northern Alberta  The treaty provided for the right to hunt over the territories surrendered, save for lands that had been taken up for settlement, mining, lumbering, trading or other purposes Issue Did the Δ have a right of access to the private lands they were hunting on? Held No – where the house is No – where fence is Yes, probably – where swamp is. Have right to hunt/fish/trap on private land where there isn’t a visible incompatible use. JR Oral promises made by the Crown’s representatives and the Indians’ own oral history indicate that it was understood that land would be taken up and occupied in a way which precluded hunting when it was put to a visible use that was incompatible with hunting [58]  Appears Indians would have understood that if house or fence put up, shouldn’t be shooting there  If all the land is covered in houses? Possible extinguishment of right.  BUT another case: treaties about ongoing reconciliation, crown has duty to consult. [on the principle to be drawn from the cases considering whether treaty right of access on

49 privately owned lands] If the lands are occupied, that is, put to visible use which is incompatible with hunting, Indians will not have a right of access. Conversely, if privately owned land is unoccupied and not put to visible use, Indians, pursuant to Treaty. No. 8, will have a right of access in order to hunt for food. [66] Conservation laws which attempt to regulate the aboriginal right to hunt and trap granted under Treaty 8 may infringe said rights, which are recognized and affirmed under s. 35(1) [71]

R v. White & Bob

Fact  Nanaimo First Nation, thought had agreement to hunt and fish s  Crown thought no such agreement, would prosecute for hunting  Document relied upon included “at liberty to hunt on unoccupied lands and continue fisheries” Issue 1. Did the Nanaimo people have a treaty? (How do you determine if there’s a treaty?) 2. If there is a treaty, is it paramount to the provincial regulations? Held 1. There is a treaty, therefore have right to hunt on those lands. 2. Therefore, the provincial law does not apply. 3. Treaty has to be understood as Indian’s would understand it, given generous interpretation that “upholds the sanctity of the British crown.” All laws of general application apply to Indians, but subject to the terms of any treaty.

TREATIES: CANONS OF CONSTRUCTION (PP. 380-402)

Treaties, Treaty Interpretations and the “Honour of The Crown”

R v. Marshall (“Marshall No. 1”) [1999] 3 SCR 456 (pp. 380-394) Leading Case on the Principles of Treaty Interpretation

50 Rule  Treaties should be given a broad and generous interpretation, a process which may embrace extrinsic evidence.  The honour of the crown requires the court to give effect to the common intention of the parties by implying terms where necessary.

Facts o Δ charged with selling 463 pounds of eels without a licence o Defence: he was entitled to sell the eels by virtue of a treaty right o Q: whether a trade clause in the treaty reglected the grant of the positive right of the aboriginal people to bring the products of their hunting fishing and gathering to a truckhouse to trade Issue Did the Δ have a treaty right to catch and sell fish?

Sub issue: did the underlying negotiations produce a broader agreement btw the gov’t and the aboriginal group which was only partially memorialized in the peace and friendship treaty? Held Yes, treaty. Treaty confers a right to continue to obtain necessaries through hunting and fishing by trading the products of those traditional activities Why Starting point for the analysis of the alleged treaty right must be an examination of the ? specific words used in any written memorandum of its terms [5] Courts should make broad use of extrinsic evidence [regarding the historical context] to aid in treaty interpretation [9]… the bottom line is the Court’s obligation is to choose from among the various possible interpretations of the common intention (at the time the treaty was made) the one which best reconciles the interests of the aboriginal group and the crown [14] “It is the common intention in 1760 – not just the terms of the March 10, 1760 document – to which effect must be given” [40] After concluding written text is incomplete, becomes necessary to ascertain treaty terms not just from fragmentary historical records, but in light of objectives of both parties and the political and economic context in which those were reconciled [41] If the law is prepared to supplement the deficiencies of written k’s prepared by sophisticated parties and their legal advisors in order to produce a sensible result that accords with the intent of both parties (i.e. imply terms), though unexpressed, the law cannot ask less of the honour and dignity of the Crown in its dealings with first nations. [43]

Principles of Interpretation - McLachlin Dissent in Marshall (positively cited in many subsequent treaty cases)

1 Aboriginal treaties constitute a unique type of agreement and attract special principles of . interpretation (Badger)

51 2 Treaties should be liberally construed and ambiguities or doubtful expressions should be . resolved in favour of the Aboriginal signatories (Simon)

3 The goal of treaty interpretation is to choose from among the various possible interpretations of . common intention the one which best reconciles the interests of both parties at the time the treaty was signed (Sioui)

4 In searching for the common intention of the parties, the integrity and honour of the crown is . presumed

5 In determining the signatories respective understanding and intentions, the court must be sensitive to . the unique culture and linguistic differences btw the parties

6 The words of the treaty must be given the sense which they would naturally have held for the . parties at the time

7 A technical or contractual interpretation of the treaty wording should be avoided . 8 While construing the language generously, courts cannot alter the terms of the treaty by exceeding . what “is possible on the language” or realistic

9 Treaty rights of Aboriginal peoples must not be interpreted in a static or rigid way. They are . not frozen at the date of signature. The interpreting court must update treaty rights to provide for their modern exercise. This involves determining what modern practices are reasonably incidental to the core treaty right in its modern context.

Question: what is honour of the crown? Court in Marshall does not really define. Is used a lot, but left as a general term.

R v. Marshall; R v. Bernard [2005] 2 SCR 220 (pp. 395-401) Facts Accused commenced logging on crown land after Marshall judgement came out Issue Do the Mi’kmaq people in NS have a treaty right to engage in commercial logging on crown lands? Held No. Why? The emphasis in interpreting the truckhouse clause is not on which products were used, but on what trading activities were in the contemplation of the parties at the time the treaties were made Δ o Following the interpretation in Marshal, the truckhouse clause in the treaty – they have a general right to harvest and sell all natural resources which they needed to support themselves in 1760 o They used logging at the time – and the treaty protects the modern use of the same products Key Historical context suggests that the truckhouse clause was a trade clause concerned with what could be Obiter traded (i.e. the basic right to trade in traditional products) [18] The historic records and the wording of the truckhouse clause indicate that what was in the contemplation of the British and the Mi’kmaq in 1760 was continued trade in the products the Mi’kmaq had traditionally traded with Europeans [21] Treaty rights are not frozen in time. Modern peoples do traditional things in modern ways . Question is whether the modern trading activity in question represents as logical evolution form the traditional trading activity at the time the treaty was made [25] What the treaty protects is not the right to harvest and dispose of particular commodities, but the right to practice a traditional 1760 trading activity in the modern way and modern context [26]

52 Correct test to be applied in these situations is (A) is there any evidence that the Indian group traded in wood products and timber at the time? B) could the activity at issue be considered a logical evolution of a traditional trade-based activity? [28]

TREATIES: GRASSY NARROWS

Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC Rule Where a province intends to take up lands for the purposes of a project within its jurisdiction, the Crown must inform itself of the impact the project will have on the exercise by the aboriginal treaty holding group of their rights to hunt, fish, trap and then communicate its findings to them. It must then deal with them in good faith with the intention of substantially addressing their concerns. Crown right to take up lands is subject to its duty to consult and if appropriate, accommodate aboriginals best interests beforehand Facts  Existing treaty in place btw aboriginal group and crown  Gives crown interest in aboriginal land in exchange for payments etc and right to harvest said lands until they were “taken up” for settlement, mining or lumber by government  Border dispute at time of negotiation, at time of treaty, not explicitly vested in Ontario  Ontario gave out forestry licenses for land, aboriginal group challenged that they need crown approval Issue Can a province “take up” lands in the aboriginal groups area under the treaty so as to limit their harvesting rights? Or does it need federal authorization to do so? Held Yes, province can take up and they do not need federal approval Π 1. Treaty was made with federal crown and only federal crown has obligations over matters covered in the treaty (privity of k argument?) o Does not apply in treaty context 2. 91(24) gives federal gov. role in taking up of these lands Why? 1. Division of Powers (main)  S. 109 – Ontario holds the beneficial interests in the land and the resources  S. 92(5) – province has exclusive power over provincial lands and timbre there on  S. 92(A) – gives the province exclusive power to make laws in relation to non- renewable natural resoruces, forestry resources, and electrical energy. 2. Treaty Interpretation  Prima facie does not call for federal supervision  Successive legislation supports this interpretation Comment: does this ratio apply to non-treaty situations?

THE DUTY TO CONSULT  Duty to consult is recent development in Canadian law

53  Haida is leading case

Haida Nation v. British Columbia (Minister of Forests) [2004] 3 SCR 511 (416-427) Does gov’t owe duty to consult & accommodate before any legal title to land has been proven? YES

Facts  Haida Gwaii is heavily forested  British Columbia government has been giving out certificates to cut trees  Haida Nation is in process of making title claim, and objects to the logging of Haida Gwaii  Claim that the gov’t has breached their fiduciary duty by replacing and transferring licenses Issue Is the government required to consult with π about decisions to harvest trees from their purported title area and to accommodate their concerns about the harvesting of these natural resources before they have proven their title to land and their Aboriginal rights ? Held Yes. And the crown failed in this obligation. Π  Title claim is strong, but it is complex and will take many years to prove  Clear-cutting of forests will forever despoil way of life Δ  Government has right to manage forest resource for the good of all British Columbians  Until π prove their title claim, they have no right to consultation or accommodation Honour of the Duty to consult is grounded in honour of crown [16] Crown and  In all its dealings with Aboriginal peoples, from the assertion of Crown sovereignty to Duty to the resolution of claims and the implementation of treaties, the Crown must act Accommodat honourably [18] e Honour of Crown gives rise to different duties in different circumstances 1. Discretionary control over specific aboriginal interests, honour of crown gives rise to fiduciary duty  Crown must act in the best interest in exercising discretionary control over the specific aboriginal interest at stake  Fiduciary will not arise when right has merely been asserted but not proven 2. H of C infuses treaty making and interpretation process  In making and applying treaties, the Crown must act with honour and integrity and avoid even the appearance of sharp dealing [19] 3. Where treaties remain to be concluded, the honour of the Crown requires negotiations leading to a just settlement of aboriginal claims  This is where the duty to consult and accommodate comes in Why? HoC requires that aboriginal rights be determined, recognized, and respected. This requires the Crown to participate in the processes of negotiation. While this process continues, HoC may require it to consult and, where indicated, accommodate aboriginal interests [25] HoC may require it to consult with and reasonably accommodate Aboriginal interests pending resolution of the claim. To unilaterally exploit a claimed resource during the process of proving and resolving the Aboriginal claimants of some or all of the benefit of the resource, that is not honourable [27] Source of 1. Courts relies on canons of construction duty 2. Problem with applying fiduciary law: interests Haida claiming are insufficiently cohate in Canadian Law (exist prior to proof) 3. Reconciliation – recognizes Haida presence before sovereignty, needs to be reconciled with Crown sovereignty 4. Jurisprudence 5. No conquest, and no treaty reconciling sovereign interests When does Duty arises (kicks in) when crown has rule and constructive knowledge of a potential

54 duty arise aboriginal right and adverse effects [35]  Duty actually arises at assertion of sovereignty and never finishes [32]  Fulfilling honour of crown is a process [32]  Proof of title takes time [26], crown cannot ride roughshod / act unilaterally over Aboriginal interests if claim not proven yet [29] Content and Content of duty is determined by strength of claim & impact on the claim. Spectrum: scope [38]  Aboriginal Claim Weak, right limited, or potential for infringement minor, the only duty on the Crown may be to give notice, disclose information and discuss any issues raised in response to the notice  Strong prima facie claim, potential infringement is of high significance and the risk of non-compensable damage is high: deep consultation aimed at finding satisfactory interim solution may be required: may include deep consultation, submissions, formal participation, written reasons, mediation, impartial decision makers and accommodation

Aboriginal groups do not have veto over what can be done with land pending final proof of claim, consent is only appropriate in cases of established rights  No duty to reach agreement

Good faith required at every step. Must substantially address concerns. What does  Putting forward proposals which are not finalized consultation  Informing of all relevant information look like?  Not promising an outcome  Willingness to change plans  Make every “reasonable effort”  Including participation in decision-making process  Reasonable timelines  Financial assistance  Hard bargaining is okay Third parties The duty to consult and accommodate does not extend to third parties  Third parties may be delegated certain procedural parts of the consultation process  However, the Ho C cannot be delegated  3P can be liable in negligence, breach of k, breach of duty of care, dishonesty

Taku River Tlingit First Nation v. BC [2004] 3 SCR 550  Facts: Aboriginal group argued that the environmental assessment process behind BC decision to reopen old mine would adversely affect aboriginal rights and title, which had not been found by a court

 Held: there was a duty to consult, but they met the duty

 Case caused confusion over scope and content of duty to consult

55 Mikisew Cree First Nation v. Canada [2005] 3 SCR 388 (531-543) Extending Haida to Treaty Context

Rule There is an implied term of consultation and accommodation in treaties between aboriginal groups and the crown. Facts  Aboriginal group in northern Alberta signed treaty with government surrendering land in exchange for certain rights  Government wanted to build road through reserve, consulted with group and made change, but did not re-consult with group on change  Treaty contained taking up clause  Aboriginal groups claim breach of fiduciary duty  Background: the land mass of this surrendered territory is huge Issue Did the crown discharge its duty to consult with π group? Held Yes, but did have a duty. Π  Proven rights under the treaty were infringed Δ  Exercise of treaty right to “take up” land is not infringement of treaty but performance of it  Terms of the treaty do not contemplate further consultations when taking up occurs  Process followed by us was sufficient in this case Court “There is in the ministers argument a strong advocacy of Crown action, which not only : ignores the mutual promises of the treaty, both written and oral, but is the antithesis of reconciliation and mutual respect” [49]

CROWN OBLIGATIONS

 Rights include correlative obligations

 Cannot have an aboriginal right without a crown obligation

 Implied textual meaning of s. 35(1): “The existing Crown obligations…are hereby recognized and affirmed”

Honour of the Crown  Voluntary obligations:  Treaties, agreements, etc.  Explicit  Involuntary obligations:  Duties of care  Neighbour relationship  Often implicit, inferred. Need to look to broader set of relationships to discern.  Downsides to crown obligations?

56  Paternalism, ever-expansive

Aboriginal obligations to crown?  If so, where do they arise?  Indigenous peoples’ law: accommodation when people come into indigenous legal system  Constitutional / Statute / CL: voluntary and involuntary  If not, why not?  Indigenous peoples’ law  Constitutional / Statute / CL  Colonialism: why should feel any obligation to crown at all?

Fiduciary duties: Guerin (pg. 480)  Content of duty: good faith, crown conduct to be scrutinized and supervised by court

 Source of duty: discretion, sui generis

 Fiduciary duty is limited in application; need this kind of legal relationship of “taking” the Indian interest.

 Honour of the crown is more general, see it in other cases where the crown isn’t “receiving” anything in the same way

 Reserve land different than title land

 Couldn’t affix trust obligation because once surrendered the land (even in a lease) to the leaseholder, the Indian interest vanishes – is actually the crown that enters into the lease agreement

 But court identifies that “there’s still some inequitable there”

 Imposes fiduciary duty to control the Crown’s discretion in dealing with the Indian interest

 Crown must act in Indian’s best interest

 because Indians can’t do it (because it’s the Crown actually entering into the lease)

 Therefore does have a duty to compensate for the loss

57  Consequence: damages