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Aboriginal Peoples
Introduction
Aboriginal people have inhabited the territory
that we now call Canada
for several thousand years. Section 91(24) of the Constitution Act, 1867 provides the Parliament of Canada with
exclusive legislative authority of “Indians, and Lands reserved for the
Indians.” The information on this website about Aboriginal peoples is
designed to provide more information about division of powers topics that effect
Aboriginals. The information has been broken down into two sections, the
first dealing with Aboriginal rights and the second dealing with Canada’s
treaties with Aboriginal Peoples.
Aboriginal Rights
The law of
Aboriginal rights can be synthesized from twelve decisions of the Supreme
Court of Canada. [R. v.
Sparrow, [1990] 1 S.C.R. 1075; R.
v. Van der Peet, [1996] 2 S.C.R. 507; R. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672; R. v. Gladstone, [1996] 2 S.C.R.
723; R. v. Nikal, [1996] 1 S.C.R.
1013; R. v. Pamajewon, [1996] 2
S.C.R. 821; R. v. Adams, [1996] 3
S.C.R. 101; R. v. Côté, [1996] 3
S.C.R. 139; Mitchell v. M.N.R., [2001]
1 S.C.R. 911; R. v. Powley, [2003]
2 S.C.R. 207, R. v. Marshall; R. v.
Bernard, [2005] 2 S.C.R. 220; R.v.
Sappier, 2006 S.C.C.54.] Taken together, these decisions lay out a five
step test for determining the existence and scope of any claimed Aboriginal
right.
Aboriginal
rights are those "practices, traditions and customs central to the
aboriginal societies that existed in North America
prior to contact with the Europeans." [R. v. Van der Peet, [1996] 2 S.C.R. 507 at para 44; Mitchell v. M.N.R., [2001] 1 S.C.R.
911 at par 15] Ancestral practices, traditions and customs are understood
in light of their corresponding modern common law right. Courts asked
to identify an aboriginal right will "examine the pre-sovereignty
aboriginal practice and translate that practice into a modern legal
right." [R. v. Marshall; R. v. Bernard, [2005] 2
S.C.R. 220 at para 51].
To analyze claims
of Aboriginal rights, the Court must consider 5 elements: (1)
characterization, (2) location, (3) time, (4) "integral to distinctive
culture" and (5) continuity.
Characterization
The Court
first must characterize the Aboriginal right being claimed.
Characterization of the right claimed is
guided by 3 factors:
·
the nature
of the action which the applicant is claiming was done pursuant to an
aboriginal right;
·
the nature
of the governmental regulation, statute or action being impugned;
·
the
pre-contact practice, custom or tradition being relied upon to establish
the right.
The
characterization of the right must be specific. The Supreme Court has
consistently rejected characterizing claims for aboriginal rights on a
general basis.
The Supreme
Court's twelve cases lay down that "the existence of an aboriginal
right will depend entirely on the practices, customs and traditions of the
particular aboriginal community claiming the right." [R. v. Van der Peet, [1996] 2 S.C.R.
507 at para 69]
The
Plaintiffs carry an onus to prove their claim with specific, relevant
evidence.
Evidence
advanced in support of aboriginal claims, like the evidence offered in any
case, can run the gamut of cogency from the highly compelling to the highly
dubious. Claims must still be established on the basis of persuasive
evidence demonstrating their validity on the balance of probabilities. [Mitchell
v. M.N.R., [2001] 1 S.C.R. 911
at para 39]
Location
The Court
must determine whether the claimed aboriginal right has a geographic character
- whether it is site specific.
Plaintiffs
must lead evidence not only of the traditional practices that give rise to
their claimed aboriginal right, but also where and how these traditions
were practiced
In Sawridge Band v. Canada the Federal
Court refused to allow the Plaintiffs to lead general evidence which:
do[es]
not assist the Court in deciding whether there are traditions, customs and
practices internal to the Plaintiffs that support a right to decide
membership in a way that has been unjustifiably abrogated by specific
Amendments to the Indian Act.
General evidence is inconsistent with
the direction that "the existence of an aboriginal right will depend
entirely on the practices, customs and traditions of the particular
aboriginal community claiming the right." [R. v. Van der Peet, [1996] 2 S.C.R. 507 at para 69].
Time
Aboriginal claimants must prove that the
traditional practices relied on were in existence prior to contact with the
Europeans.
"Integral
to Distinctive Culture"
Aboriginal claimants must prove that the
asserted practice relied on was "integral to the distinctive
culture" of their pre-contact Aboriginal community.
In R.
v. Van der Peet, [1996] 2 S.C.R. 507 at para 69, the Supreme Court
explained that
To
satisfy the integral to a distinctive culture test the Aboriginal claimant
must do more than demonstrate that a practice, tradition or custom was an
aspect of, or took place in, the Aboriginal society of which he or she is a
part. The claimant must demonstrate that the practice, tradition or custom
was a central and significant part of the society's distinctive culture.
He or
she must demonstrate that the practice, tradition or custom was one of the
things which made the culture of the society distinctive - that it was one
of the things that truly made the society what it was.
Continuity
Aboriginal
rights are communal rights. They are grounded in the existence of a
historic aboriginal community and a present aboriginal community.
Individuals may exercise aboriginal rights only by virtue of an ancestrally
based membership in the present aboriginal community.
Claimants
must demonstrate continuity between the Aboriginal practice exercised by
the historically based community that existed prior to contact with
Europeans and the practice as it is exercised by their modern community
today. The whole point is that the doctrine of aboriginal rights expresses
a "commitment to protecting practices that were historically important
features of particular aboriginal communities."
In Bernard/Marshall,
the Supreme Court added a new twist.
[T]he court must examine the pre-sovereignty aboriginal
practice and translate that practice into a modern right. The process
begins by examining the nature and extent of the pre-sovereignty aboriginal
practice in question. It goes on to seek a corresponding common law right.
In this way, the process determines the nature and extent of the modern
right and reconciles the aboriginal and European perspectives. [R. v. Marshall; R. v. Bernard, [2005]
2 S.C.R. 220 at para 51]
This emphasis
on the common law requires the Plaintiffs to show not only that the
traditional practice existed, and was integral to the community, but also
that the practice corresponds with a modern right being asserted, a right described
or describable by common law concepts.
Plaintiffs
are required to characterize the asserted aboriginal right in terms of a
modern common law analogue. The correspondence between ancestral
practice relied on and modern right asserted must have integrity. "A
pre-sovereignty aboriginal practice cannot be transformed into a different
modern right." Failure to make this link with care could prove
fatal to the aboriginal rights claim.
Canada’s Treaties with Aboriginal
People
In the period
after Confederation, between 1871 and 1921, Canada entered into eleven
numbered treaties with the aboriginal peoples. There are other Treaties
besides, and many pre-confederation Treaties: http://www.ainc-inac.gc.ca/pr/trts/hti/site/trindex_e.html.
Status of the Treaties
What exactly
are these treaties, and what use may courts make of them?
On their
face, the treaties seem to contain an exchange of promises. This makes them
like a contract. But, unlike a contract a treaty represents an exchange of
solemn promises between the Crown and the various Indian nations. It is an
agreement whose nature is sacred.
This lofty
language refers to the juridical novelty by which the treaties establish a
special relationship between the First Nations and the Crown. The
relationship is special because the obligations created to cede land
masses larger than many countries and to provide reserves and
schooling are unusual, to say the least. The relationship is
special also because the concepts underlying the treaties provide an
important point of reference for how these communities are to relate to Canada in
the future.
This special
nature of Canada's
treaties with the aboriginal people has been considered by the commentators
and the courts. The Royal Commission on Aboriginal Peoples (RCAP) thought
that the treaties allowed Canada
to avoid the Indian wars that characterized settlement of the American
frontiers, and thus the relationships created undergird the distinctive
characteristics of the Canadian polity:
The Canada
that takes a proud place among the family of nations was made possible by
the treaties. Our defining national characteristics are tolerance,
pluralism and democracy. Had it not been for the treaties, these
defining myths might well not have taken hold here. Had it not been
for the treaties, wars might have replaced the tribal council. Or the
territory might have been absorbed by the union to the south. Canada
would have been a very different place if treaty making with the Indian
nations had been replaced by the waging of war. [Canada,
Royal Commission on Aboriginal Peoples, Report
of the Royal Commission on Aboriginal Peoples, vol. 2 (Ottawa: Canada Communication Group, 1996
at 15 [RCAP].]
In recognition of the fundamental
arrangements the treaties established, RCAP considered that the treaties
were properly understood as constitutional in nature:
The network of treaties between the Crown and treaty
nations is described by some as confederal in nature. Treaty rights
are now recognized and affirmed by s. 35(1) of the Constitution Act,
1982. The Commission considers that the treaties do indeed form part
of the constitution of Canada.
When properly understood, the treaties set out the terms under which the
treaty nations agreed to align themselves with the Crown …The Commission
concludes that the treaties describe social contracts that have enduring
significance and that as a result form part of the fundamental law of the
land. In this sense they are like the terms of union whereby former
British colonies entered Confederation as provinces. [Ibid. at 20.]
Varieties of
these views have been incubating in the courts. The British Columbia
Supreme Court affirmed RCAP's opinion that treaties have always been
constitutional in nature because "long before the 1982 enactment of s.
35, aboriginal rights formed part of the unwritten principles underlying
our Constitution." [Campbell v.
British Colombia
(A.G.) (2000), 189 D.L.R. (4th) 333 (B.C.S.C.) at 351.] This
way of putting it that the treaties inhere in the unwritten
architecture of the constitution and can give rise to constitutional
obligations is the view taken in the landmark opinion of the Supreme
Court in the Secession Reference:
Consistent with this long tradition of respect for
minorities, which is at least as old as Canada itself, the framers of
the Constitution Act, 1982 included in s. 35 explicit protection for
existing aboriginal and treaty rights, and in s. 25, a non-derogation
clause in favour of the rights of aboriginal peoples. The
"promise" of s. 35, as it was termed in R. v. Sparrow, [1990] 1
S.C.R. 1075, at p. 1083, recognized not only the ancient occupation of land
by aboriginal peoples, but their contribution to the building of Canada,
and the special commitments made to them by successive governments.
The protection of these rights, so recently and arduously achieved, whether
looked at in their own right or as part of the larger concern with
minorities, reflects an important underlying constitutional value. [Reference re: Seccession of Quebec, [1998] 2
S.C.R. 217 at 262-63.]
Interpretation
of Treaty Texts
Treaty interpretation requires the rules
of evidence to be relaxed, and for context to inform the intention of the
parties.
[E]ven in the context of a treaty document that purports
to contain all of the terms, this Court has made clear in recent cases that
extrinsic evidence of the historical and cultural context of a treaty may
be received even absent any ambiguity on the face of the treaty. [R. v. Marshall, [1999] 3 S.C.R. 456
at para. 11]
A principal
reason why historical and cultural context is critical to treaty
interpretation is that the treaty texts were written by the Crown's representatives.
In many cases the Aboriginal people who negotiated the treaties and signed
them with a mark were unable to read. Some contemporaneous reports of
treaty making show that the written treaty texts differ markedly from the
oral promises made by Crown representatives. Treaty 3 is a good
example. Treaty 3 was negotiated during an intense three days during which Canada's
representatives made many promises in response to Ojibway demands. Some of
these were not included in the written treaty text, including promises that
the Indians would be exempt from military conscription, that minerals found
on reserve would only be sold with the consent of the Indians, that any
Indian children who had emigrated to the United States would be admitted to
the treaty if they returned within two years, that the Indians would
forever have use of their fisheries. The reason why these promises
were left out was that the Commissioners had brought with them a text
compiled from failed treaty negotiations of the year before. This
text did not reflect the many concessions made during the intense three
days of negotiations. "In their haste to conclude the agreement, [Canada's
treaty commissioners] used as a finalized version the draft treaty from the
previous year which would not reflect the new items of agreement in the
negotiations just concluded." [Wayne Daugherty, Treaty Research Report: Treaty One and Treaty Two (Ottawa:
Treaties and Historical; Research Centre, INAC, 1983), Chapter 3.] All of the Chiefs who signed Treaty
3 were unable to read, and signed' with a mark. In a Report that
discussed conflicting Federal and provincial claims in the context of
Treaty 3 lands, a Canadian official stated:
there were other conditions relating to the reserves not
embodied in the treaty, but which should have been so embodied, inasmuch as
they were imposed by the Indians during the negotiations for the treaty,
and which are in view of the illiterate condition of the Indians as much
conditions of their enjoyment as those actually inserted in the treaty; [Re the Titles of the Dominion and the
Province of Ontario Respectively in Indian Lands, Indian Reserves and in
the Royal Metals and Other Metals Therein and Timber Thereon [n.d.],
Ottawa, National Archives of Canada (RG 10, vol. 2545, file 111834, pt.
1).]
The circumstances surrounding Treaty 3
are not unique.
It is
circumstances like these that explain why the courts require that history
and surrounding circumstance play important roles in treaty interpretation:
it is the only way to really know to what the parties to the treaty agreed.
The agreement' is to be found in the understandings that the parties to the
treaty had, which may be imperfectly reflected by the written text. Courts
have been repeatedly warned on this score by the Supreme Court of
Canada. Courts have been instructed that history and surrounding
circumstance are one of the ways to get at the aboriginal perspective as to
what was the content of the agreements: "… if there is evidence by conduct
or otherwise as to how the parties understood the terms of the treaty, then
such understanding and practice is of assistance in giving content to the
term or terms." [R. v. Taylor
and Williams (1982), 34 O.R. (2d) 360 at 367.] Courts charged
with interpreting the treaties must consider the Aboriginal perspective,
for that is the only way to understand what was agreed. The Supreme Court
of Canada requires that:
... when considering a treaty,
a court must take into account the context in which the treaties were
negotiated, concluded and committed to writing. The treaties, as written
documents, recorded an agreement that had already been reached orally and
they did not always record the full extent of the oral agreement. The
treaties were drafted in English by representatives of the Canadian
government who, it should be assumed, were familiar with common law
doctrines. Yet, the treaties were not translated in written form into
the languages (here Cree and Dene) of the various Indian nations who were
signatories. Even if they had been, it is unlikely that the Indians,
who had a history of communicating only orally, would have understood them
any differently. As a result, it is well settled that the words in
the treaty must not be interpreted in their strict technical sense nor
subjected to rigid modern rules of construction. [R. v. Badger, [1996] 1 S.C.R. 771 at para.52.]
Historical
and cultural context are but one of a set of special rules which apply to
the interpretation of Canada's
treaties with the aboriginal people. Because the treaties establish a
special relationship between peoples, the Courts also require that the
treaties be interpreted in a manner that maintains the honour of the Crown.
[R. v. Badger, [1996] 1 S.C.R.
771 at para.97.]Courts will not countenance any sharp practice or unfair
dealing. Courts assume that the Crown intends to comply fully with each
promise, obligation or right set out in a treaty, or garnered from
reconstruction of the understandings of the parties.
Treaty terms
must be assessed with a large, liberal and generous interpretation in
favour of the First Nation signatory. [R. v. Simon, [1985] 2 S.C.R. 387 at 402; R. v. Sioui, [1990] 1 S.C.R. 1025 at 1035.] Ambiguities,
uncertainties or doubtful expressions are to be settled in favour of the
First Nation signatories. Not only should "treaties and statutes
relating to Indians ... be liberally construed," and doubts
"resolved in favour of the Indians" but any limitation which
restricts First Nation rights must be narrowly construed.
Remedies
for Breach
As we have
seen, the exchange of promises that characterizes the treaties makes them
seem analogous to contracts, albeit contracts of a very solemn and special
public nature. It seems to be this aspect, the exchange of promises meant
to bind, that prompts the courts to say that the treaties "create
enforceable obligations based on the mutual consent of the parties;" [Badger, supra at para 76], that
treaty promises are "binding obligations which would be solemnly
respected," [R. v. Simon, [1985]
2 S.C.R. 387 at 24.] and are "binding obligations" of the
Crown. [R. v. Sioui, [1990]
1 S.C.R. 1025 at 43.] All of this makes it appear that the treaties
self-execute in the sense that they are justiciable, and that courts may
give remedies for breach of the obligations the treaties create.
It is true
that fiduciary obligations and treaty obligations at times overlap in the
sense that a breach of treaty can and often does constitute a breach of the
Crown's fiduciary obligations to First Nations. [Ontario (Attorney General) v. Bear Island
Foundation, [1991] 2 S.C.R. 570 at 575.] It would be wrong to conclude
from this overlap that treaty rights depend for enforcement upon the
application of fiduciary law. Treaty rights precede fiduciary
obligations as independent, sui generis entitlements of
quasi-constitutional significance. Canada's obligations under the
treaties do not arise from the fiduciary relationship between itself and
Indian peoples. Canada's
obligations have their source in the fact that the people of Canada, as
represented by their government, entered into a solemn treaty relationship
in which binding promises were made to the aboriginal people in exchange
for very substantial consideration given by the Indians in return.
There is not
a large amount of litigation which seeks to enforce Canada's
treaty promises. What litigation there is uses the treaties as shields
against prosecutions or restrictions, not as swords to obtain performance
of treaty promises or damages for breach. The explanation for the
paucity of litigation probably lies in the fact that in1927, Parliament
enacted s.141 of the Indian Act,
which made it an offence for any legal counsel to receive payment on behalf
of any Indian Band for "the prosecution of any claim … for the benefit
of the said tribe or band …" This provision remained on the books
until 1951. [Indian Act,
S.C. 1926-7, c.32 and R.S.C. 1927, c. 98, s.141; repealed by S.C. 1950-1,
C.29 s.123.] More recently, claims
that Canada has violated
its treaty promises are funnelled into special dispute resolution fora
under Canada's
specific claims and treaty land entitlement policies. These policies
provide negotiation tables, and funding for negotiations to resolve claims
that Canada
has breached its lawful obligations under the treaties.
Notwithstanding
the absence of treaty litigation, it seems that treaty rights are
justiciable and can constitute the basis of a claim for compensatory and
equitable remedies, including damages. This is the opinion of the
Indian Claims Commission, which holds that treaty
rights, "being equitable in nature, can be enforced by the
courts, either through an award of specific performance or, in
circumstances in which specific performance may not be available, an award
of, first, compensatory damages in lieu of the shortfall land, and, second,
compensatory damages for late performance." [See: http://www.indianclaims.ca/pdf/LongplainEng.pdf]
This opinion is also consistent with the court descriptions of the treaties
as creating binding and enforceable obligations, previously considered.
Given the
independent exchange of promises between the Crown and First Nations
recorded by the treaties, the expectations created, the specificity of the
promises, and the large consideration provided by the Indians in exchange,
it seems that treaty promises are meant to be justiciable. If this proves
to be correct, treaty promises are independent sources of legal obligations
owed by the Crown. The Indian Claims Commission explained :
…it is without question that such treaty covenants are
of sufficient importance in modern Canadian society that they stand on
their own as sui generis obligations independent of the concept of
fiduciary obligation for their legitimacy or enforceability. To suggest
that the treaties are reliant on the vehicle of fiduciary duty to make them
enforceable would fail to accord them the historical and constitutional
importance that they have acquired in Canada. [See: http://www.indianclaims.ca/pdf/LongplainEng.pdf]
Extinguishment
of Treaty Obligations
Prior to
1982, treaty promises could be extinguished by competent legislative
action. Legislation alleged to extinguish a treaty promise must be specific
and precise; "if legislation bears on treaty promises, the courts will
always strain against adopting an interpretation that has the effect of
negating commitments undertaken by the Crown." [Mitchell v. Peguis, [1990] 2 S.C.R. 85 at 119].
Regulatory
legislation does not extinguish treaty promises, unless it possesses this
specificity. The fact that a right is "controlled in great detail by
[a] regulation does not mean that the right is thereby extinguished."
[R. v. Gladstone, [1996] 2 S.C.R.
723 at para. 31]. Even regulatory legislation that is inconsistent with the
continued existence of treaty rights will not extinguish a treaty promise
unless it exhibits a "clear and plain intent to extinguish treaty
rights," [R. v. Sparrow,
[1990] 1 S.C.R. 1075 at 1099.] or the regulation is "wholly
incompatible" with the continued exercise of a treaty right. [R. v. Sundown, [1999] 1 S.C.R. 393
at 414-15.]The Crown has the onus to prove extinguishment. To prove a
treaty right has been extinguished the Crown must make: "strict proof
of the fact of extinguishment' and evidence of a clear and plain intention
on the part of the government to extinguish treaty rights." [R. v. Badger, [1996] 1 S.C.R. 771 at
para. 41.]
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