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B. Whose Rights Are Environmental Aboriginal and Environmental Treaty Rights? MOLESTED AND DISTURBED: ENVIRONMENTAL PROTECTION BY ABORIGINAL PEOPLES THROUGH SECTION 35 OF THE CONSTITUTION ACT, 1982 Brief No. 376 ISBN # 1-894158-35-0 Prepared by: Theresa McClenaghan CANADIAN ENVIRONMENTAL LAW ASSOCIATION 517 College Street, Suite 401 Toronto, Ontario M6G 4A2 Tel: 416-960-2284 Fax: 416-960-9392 E-mail: [email protected] http://www.web.net/cela September 1999 MOLESTED AND DISTURBED: ENVIRONMENTAL PROTECTION BY ABORIGINAL PEOPLES THROUGH SECTION 35 OF THE CONSTITUTION ACT, 1982. And whereas it is just and reasonable, and essential to Our Interest and the Security of Our Colonies, that the several Nations or Tribes of Indians, with whom We are connected, and who live under Our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories, as, not having been ceded to, or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds . (Royal Proclamation of 1763.) ABSTRACT The author reviews the jurisprudence and academic commentary as to the protection provided by section 35 of the Constitution Act, 1982, with a view to determining whether aboriginal peoples in Canada can use section 35 as an environmental protection tool. She concludes that section 35 offers promising potential for environmental protection in specific circumstances. The author recommends that aboriginal peoples consider exercise of environmental governance. This recommendation arises out of the conclusion that there are existing environmental aboriginal and treaty rights. Environmental governance would also help with the recognition and protection of those rights under section 35. SECTION 35, CONSTITUTION ACT, 1982 Section 35 of the Constitution Act, 1982 provides: (1)The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2)In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Metis peoples of Canada. (3)For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired. (4)Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons. 2 TABLE OF CONTENTS A. INTRODUCTION: ................................................................................................................................................4 1. Definition of the Rights......................................................................................................................................4 2. Can Environmental Activity or Protection be Characterized as an Aboriginal or Treaty Right?.............4 3. The Existing Environmental Governance Paradigm......................................................................................6 B. WHOSE RIGHTS ARE ENVIRONMENTAL ABORIGINAL AND ENVIRONMENTAL TREATY RIGHTS?....................................................................................................................................................................10 C. HOW ARE ENVIRONMENTAL ABORIGINAL RIGHTS ESTABLISHED? ............................................12 1. “Integral to the Culture”.................................................................................................................................13 (i) The Test........................................................................................................................................................13 (ii) Criticisms of the “Integral to the Culture” Test......................................................................................14 (iii) How to Prove “Integral to the Culture”?................................................................................................16 2. “Existing” .........................................................................................................................................................19 (i) Unextinguished ............................................................................................................................................19 (ii) Continuing ..................................................................................................................................................20 D. ABORIGINAL TITLE RIGHTS AND ENVIRONMENTAL PROTECTION .............................................21 E. HOW CAN ENVIRONMENTAL TREATY RIGHTS BE EXERCISED? ....................................................24 (i) Interpretation of Treaties ..........................................................................................................................25 (ii) Infringement of Treaty Rights .................................................................................................................28 F. HOW CAN ENVIRONMENTAL RIGHTS BE PROTECTED AND ASSERTED?.....................................30 1. How Environmental Aboriginal and Treaty Rights Could be Asserted......................................................30 2. Development and Evolution of Environmental Aboriginal and Treaty Rights...........................................31 3. Environmental Governance ............................................................................................................................33 4. How can Aboriginal Peoples Resist Infringement of Environmental Aboriginal and Treaty Rights?.....38 (i) The Infringement Test ...............................................................................................................................38 (ii) Priority Interests .......................................................................................................................................45 (iii) Co-Management and Joint Jurisdiction.................................................................................................47 G. WHAT ROLE DOES THE PROVINCIAL GOVERNMENT HAVE AS TO ENVIRONMENTAL ABORIGINAL AND TREATY RIGHTS? .............................................................................................................48 1. Fiduciary Duties...............................................................................................................................................49 2. Provincial Infringement ..................................................................................................................................49 3. “Lands Taken Up”...........................................................................................................................................54 H. ENFORCEMENT OF ENVIRONMENTAL ABORIGINAL AND TREATY RIGHTS ...........................55 I. CONCLUSION......................................................................................................................................................57 Appendix: Statutory References...............................................................................................................................62 Section 88, Indian Act ................................................................................................................................................62 Appendix - Constitutional Entrenchment of Environmental Rights.....................................................................63 Appendix 1 .................................................................................................................................................................63 Appendix 2 .................................................................................................................................................................64 List of Authorities......................................................................................................................................................67 Originally prepared in partial fulfillment of the requirements of an LLM. (Constitutional Law) at Osgoode Hall School of York University, September 1999. 3 A. INTRODUCTION: 1. Definition of the Rights Seventeen years after the Constitution Act, 1982, introduced section 35, "recognizing and affirming" the "existing aboriginal and treaty rights" of the aboriginal peoples of Canada, there is now a body of case law and academic literature as to the meaning of and the protection offered by that section. That body of commentary will be considered in answering the question whether aboriginal peoples can use section 35 as an environmental protection tool. In doing so, I will consider environmental rights protected as "aboriginal rights," and those protected as "treaty rights." I will style them as "environmental aboriginal rights" and "environmental treaty rights" respectively. In this paper, I define "environmental rights" to be rights of environmental protection. Section 35 may protect environmental rights directly, for example as a direct right of water quality protection. It may also protect environmental rights indirectly when they are "reasonably incidental" to another aboriginal or treaty right. An example is where a right to fish implies water quality and habitat supportive of the fishery. Another question is whether the environmental right is a right to carry out or control environmental protection matter or whether it is only a right to require other levels of government to do so. The kinds of rights that could be considered "environmental rights" are many and likely to vary with the varied ecosystems in which aboriginal peoples live. The appendix contains some examples of environmental protection rights. For example, the
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