3/26/2013 Aboriginal Rights & Title in Canada’s Courts Crim 419 / FNST 419 March 2013 Calder v BC (Attorney General) Guerin (1984) • Made it to the Supreme Court in 1973 • In 1957, Musqueam agreed to lease land • 3-3 decision technically a “loss” for golf club, specified terms • But 3 of Canada’s most heralded Supreme • Indian Agent did sweetheart deal and CtJtiCourt Justices – EtHllEmmet Hall, Wis har t agreed to cheaper terms for 75 years Spence and Bora Laskin – said that the • Musqueam sought copy of lease; took 12 Nisga’a had Aboriginal Title as their title years until Delbert had the opportunity had never been extinguished • Sued feds for breach of trust • Beginning of the contemporary rights era 1 3/26/2013 Guerin (1984) Honour of the Crown • Federal government argued they had no • Aboriginal rights in Canada embodied and legal responsibility to band, only political reflected in two imperial/constitutional • Supreme Court agreed with Musqueam authorities and awarded $10 Million – Royal Proclamation of 1763 • Arises from Royal Proclamation that – Section 35(1) of the Constitution Act, 1982 asserts Aboriginal title and means of • Especially the latter (in the contemporary surrender through government context) made “the honour of the Crown” a • This confers fiduciary obligation on govt presumptive foundation for adjudication Constitution Act, 1982 CBC - 1987 • Recognition of “existing” Aboriginal rights: – “35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are herebyyg recognized and affirmed.” • But what are these? • A series of three constitutional meetings was held in order to give life to that constitutional phrase 2 3/26/2013 Constitution Act, 1982 R. v. Sparrow (1990) • Mandated Constitutional talks end without • Ron Sparrow of Musqueam charged with an agreement using a drift net longer than permitted • After 5 years, issues became justiciable • Mr Sparrow acknowledges that to be the • Firs t case was R. v. Sparrow fBCifrom BC, in case, but says he has an Aboriginal right which Supreme Court outlines the rules by to fish and that net restriction is which this and future rights cases will be inconsistent with Sec. 35(1) adjudicated • Supreme Court deals for first time with issues of how to deal with such claims The Colour of Law R. v. Sparrow (1990) • Marlee Kline argues that law embodies • Crown argues racist ideologies regarding Indigenous – if there ever was a right, it was implicitly peoples that act to dismiss rights and extinguished by the fishery and licensing that possibilities for the future is incomppggatible with Aboriginal rights – Devaluation of Indianness • Kline: Devaluing of Indianness – Homogeneity of Indianness – “real Indians don’t eat pizza”; i.e., rights are limited to what they were and how they were – Ideology of Static Indianness exercised at contact • Kline: Ideology of Static Indianness 3 3/26/2013 Sovereignty’s Alchemy Supreme Court’s 4-step test • Asserts the decision embodies an unequal 1. Is there an existing inherent right legal framework that undermines protected by section 35 (1) of the Indigenous interests Constitution Act, 1982? (Onus of proof – Law fraught with double standards on the First Nation claiming the right) – Process is the punishment • Must identify specific right – Indigenous peoples must demonstrate title; • Satisfy “integral to distinctive culture” test Canada can wave magic sovereignty wand • Practice must predate arrival of Europeans • Must be continuity of practice – On what basis does the Supreme Court get to • Documentation need not be written define Aboriginal culture? 4-step test 4-step test 2. Has the inherent right claimed been 3. Has the inherent right been infringed by extinguished prior to the enactment of federal or provincial legislation? (Onus of section 35 (1) of the Constitution Act, proof on First Nation claiming the right) 1982? (Onus of proof on the Crown) • Rights can be infringed, not absolute • Prior to 35(1) extinguishment could occur via • Court must consider surrender, Constitutional enactment, or validly » Is the limitation unreasonable? enacted federal legislation » Does the regulation impose undue hardship? • Must be “clear and plain intention” to extinguish » Does the regulation deny to the holders of the right their preferred means of exercising that right? • Legislation inconsistent not sufficient 4 3/26/2013 4-step test Title in BC 4. Can the infringement be justified? (Onus • In 1872, when Aboriginal people of proof on the Crown) outnumbered settlers, the new Province of • If an infringement, Crown must prove (a) that the infringement took place pursuant to a compelling BC denied Aboriginal people the vote and substantial objective and (b) that the • Only whites were allowed to purchase fee- infringement is consistent with the Crown’s fiduciary obligation to First Nations simple pre-empted land • Valid objectives include conservation, pursuit of • “Postage stamp” reserves established; economic and regional fairness, recognition of the historical reliance upon, and participation in, refused to recognize Aboriginal title fish and wildlife harvesting by non-Aboriginal groups • Federal govt subsequently made it illegal to raise land issues before the courts Delgamuukw v The Queen (1997) • Gitksan/Wet'suwet’en claimed Aboriginal title and jurisdiction to/in their traditional lands, never extinguished • Longest trial ever held in Commonwealth; oral histories (adaox) revealed • McEachern lambasted for racist decision • Case goes to Supreme Court 5 3/26/2013 Delgamuukw v The Queen (1997) Delgamuukw v The Queen (1997) • “Aboriginal title encompasses the right to • In order to establish a claim to Aboriginal title, exclusive use and occupation of the land the aboriginal group asserting the claim must held pursuant to that title for a variety of establish that it occupied the lands in question at the time at which the Crown asserted purposes, which need not be aspects of sovereignty over the land subject to the title. those aboriginal practices, customs and • At sovereignty, occupation must have been traditions which are integral to distinctive exclusive. This requirement flows from the aboriginal cultures. The protected uses definition of aboriginal title, which is defined in must not be irreconcilable with the nature terms of the right to exclusive use and of the group's attachment to that land.” occupation of land. Haida v BC & Delgamuukw v The Queen (1997) Taku River Tlingit v BC (2004) • Interesting reaction; compare to gay and • Three questions addressed in the French language rights cases preliminary case were: • Feds/Prov took most narrow interpretation • Is there an enforceable duty to consult prior to the definitive proof of aboriginal or treaty rights? they could • Is there an enforceable duty to accommodate • Said in effect, Aboriginal title exists, but we disputed aboriginal and treaty rights prior to can ignore it until you prove you have it definitive proof of such rights? • To what extent do any such duties apply to • Haida took them up on it private parties? • Answers were “Yes,” “Yes,” “No.” 6 3/26/2013 Haida v BC & Haida v BC & Taku River Tlingit v BC (2004) Taku River Tlingit v BC (2004) • Affirmed “duty to consult” as part of the honour • Crown must bargain/consult in good faith of the Crown where treaties have not yet been and cannot be inflexible; must minimize concluded • The Crown, acting honourably, "cannot infringement; must accommodate cavalierly run roughshod over Aboriginal Aboriginal interest interests where claims affecting these interests • However, “hard bargaining” is OK and an are being seriously pursued in the process of treaty negotiation and proof" agreement need not necessarily be • Obligations of Crown vary depending on reached (i.e., the standard is severity of infringement; Crown may (and “consultation” rather than “consent”) sometimes must) balance societal interests Xeni Gwet'in First Nations v. Louise Mandell British Columbia (2004) • In her recent legal update to UBCIC, • The case the feds/prov wanted to get rid of Mandell suggests that this is a time of because the onus came to be on them to transition between two different legal prove title frameworks: • The Tsilqhot'in Nation asked for an all-or- – The post-1455 colonial period guided by the none decision. Doctrine of Discovery • Vickers at BC Supreme Court said that his th – The 20 century rights-based framework that hands were tied; could not give “all,” so acknowledges collective rights of Indigenous peoples must say “none” 7 3/26/2013 Xeni Gwet'in First Nations v. Xeni Gwet'in First Nations v. British Columbia (2004) British Columbia (2004) • However, also made clear that if he were • Case then went to BC Court of Appeal to be asked to make a more specific • New theory that the Court buys is that declaration, he would have awarded about Aboriginal title cannot apply to a whole 50% – 200,000 sq .km – way more than territory, but rather only to those limited any treaty settlement would be sites on which activity can be proven • Willing to negotiate, but lodged right to • Yet another example of Canada usurping appeal just in case province got cold feet any overlapping claims re identity, culture, territory What If the Same Rules were Applied to Canada? 8.