Aboriginal Rights

s91(24) – power to make laws in relation to Indians, and lands reserved for Indians
contains 2 powers:
1. in relation to “Indians” whether or not they live on reserves and
2. in relation to “lands reserved” in respect of both Indians and nonIndians

Who is in an Indian?
Those w/in definition in the Indian Act – and w/in its register = “status Indians”
approx 700,000
enjoy right to live on reserves

Those not w/in the definition of the Indian Act

“Non status Indians”
approx 200,000

Metis – half-breed from marriage btw Fr Cdn Men and Indian women
approx 300,000
received half-breed land grants

Inuit / Eskimo
not w/in reserve system – not part of Indian Act definition
approx 50,000

What kinds of laws may be made in relation to Indians?

Parlt has taken a broad view : it may legisl in relation to Indians w/ respect to
matters otherwise outside fedl competence
eg. succession to the property of deceased Indians

whether such laws are valid --> look to pith and substance : are they in relation to
Indians or or in relation to education / property or something else?
(recall Federalism-not just about whether the law is limited to a single class of
persons in its application)
Look for : an intelligible policy related to Indians

Lands reserved for Indians includes:

lands set aside for Indians before and after Confed
all land in possession of the Indians that had not been ceded to the Crown

- All lands held pursuant to aboriginal title –

*can only be extinguished by the fedl parlt
*the underlying title to the land remains with the Province
*that title is subject to the aboriginal rights of Indians
*those rights are subject to the legislative auth of Parlt

If those rights are surrendered to the Crown (only option)

then full title is assumed by the Province
R v Drybones – Bill of R – equality rights – could govt legisl based on race? Not an
issue – bc Cosntituionality of the Indian Act depends on it applying only to Indians
per s91(24)

does s15 Charter apply?

yes: Corbiere – provision req residence on reserve to vote for band members –
struck down - disticntion btw off and on reserve Indians = breach of s15
and
No: Lovelace – Casino Rama gambling profits distrib only to bands registered
under the Indian Act – not struck down – exclusion of nonstatus Indians = not a
breach of s15

Treaties
s35 of the 1982 Act – protects rights under treaties w/Indian tribes or bands
-applies to Fedl and Provl power

Application of Provincial Laws

general rule = provl laws apply to Indians on and off reserves

R v Hill – medical practice confined to qualified physicians – incl Indians

Four B Manufacturing – provl labour law applied to business on a reserve
R v Francis – provl traffic laws applied to Indian driving on a reserve
Paul v BC – BC Forest Practices Act applied to Indian cutting timber

* The law must be in relation to a matter that comes within a Provincial

head of power

5 exceptions to the general rule =

1. Singling Out – bc that would be a law in relation to Indians = fedl matter

2. Indianness – provl laws that affect “an integral part primary fedl jurisd over
Indians and reserves” are inapplicable to the Indians and reserves (like
jurisdictional immunity – where provl law impairs vital part of fedl
undertaking) - ie:

-provl laws cannot affect Indian rights; treaty rights or Indian status
Natural Parents – provl law allowing for adoption of Indian child by white parents
read down as not depriving the child of his Indian status
-cannot affect right to possession of land on a reserve and some land uses on
reserve (eg. Hunting)
Kitkatla Band v BC – heritage conservation act – valid exercise of provl power – in
cutting down “culturally modified trees” - main prupose was to protect heritage
prop (incl aborig heritage prop) but valid part of the scheme was allowing its destr
in pursuit of other goals – trees were on Crown land

Paul v BC – could provl adminve tribunal be empowered to decide existence /

applicability of aboriginal rights? Yes. The tribunal could not extinguish/alter
rights – its role was stricty adjudicative = determining whether they exist =
ok.

3. Paramountcy – provl laws that are inconsistent w/ the Indian Act are
rendered inoperative by the doctrine of federal paramountcy

4. Natural Resource Agreements – right of Indians to take game or fish for food

5. Section 35 – protects aboriginal and treaty rights – and s88 of the Indian Act
expressly req provl laws of general application to yield to the terms of any
treaty.

s. 88 Indian Act – provincial laws of general application apply to Indians

-expands provl power to make laws that affect Indians – beyond what they could
legislate anyway, and it means provl laws of general application can infringe
on aboriginal rights (but cannot extinguish them) (Dick v The Queen)

-*also goes further than the doctrine of paramountcy which only applies to provl
laws that actually conflict w/ fedl laws –-> s88 provides that provnces simply
cannot enact laws (that affect Indianness) at all w/ respect to any matter already
provided for in the Indian Act (whether or not fedl govt has enacted a contrary law
in that area)

-provl laws that do not affect Indianness apply of their own force, are not subject
to s88 and therefore normal paramountcy rules apply (conflict reqd)

s88 also req that any conflict between a provl law and a treaty be resolved in
favour of treaty

Natural Resource Agreements

Alberta, Sask and Manitoba – Indians guranteed right to take game or fish for food
at all seasons on lands specified.

R v Horseman – treaty right to hunt commercially in Alberta was “merged and

consilidated” with a right to hunt for food = ie partially extnguished by
constitutional amendment w/o Indians' consent or even consultation.

Aboriginal Rights

Calder case – affirmed survival aboriginal rights w/ respect to land

Guerin v The Queen – abroiginal title is “a legal right derived from the Indians'
historic occupation and possession of their tribal lands – SCC held that Crow has
fiduciary duty to deal w/ land surrendered to it by Indians in a way that benefits
them.

R v Sparrow – SCC recog aboriginal right of Band to fish for Samon in Fraswer
River “where ancestors had fished for time immemorial” - expanding on Guerin –
the Court held the Crown has a fiduciary duty to Indians in all their
dealings with them (not just land reserves).

aboriginals rights thus do exist at CL – and are enforceable at the suit of

aboriginal peoples

R v Van Der Peet – aboriginals have special status because they were indep self-
gov peoples once in possession of most of the lands in Can.
Legal Test to Identify an “existing aboriginal right”:
the activity must be:
1. a practice, custom, or tradition
2. integral to the distinctive culture of the aboriginal group asserting the right
“Integral” reqt =
of central significance to the aboriginal society
developped before contact (ie before arrival of Europ in NA)
+ If evolved over the years ok as long as its origins may be traced back to pre-
contact
eg. bone hook --> metal hook; bow and arrow --> gun

In Van der Peet - Aboriginal right to sell fish failed because not part of the pre-
contact pracatice which was to fish for food.

R v Smokehouse – exchanges btw the 2 tribes not sufficiently central to the

culture – only occurred rarely and cereonially

R v Gladstone – the H people habitually sold large quant of spawn on kelp to other
tribes before contact - it was a “central and defining feature” of their society

Mitchell – to bring goods purch in US across St Lawr river into Can w/o paying
customs on them – SCC: held the evidence did not est pre-contact trade by
Mohawks – instances of trade “few and far between” at most.

R v Sappier – irrelevant that the practice developped for reasons of survival

(which any human being would have to adopt at the time)
AND in that case the pre-contact of harvesting wood to build shelters had
evolved to the modern practice of harvesting wood by modern means to build
permanent dwellings.

Metis – have the probem that they are the product of contact with Europeans – so
do they have any abroriginal rights?
R v Powley – for Metis claimants the timeframe that replaced “pre-contact” was
“the time of effective European control” (not the time of Crown soverignty – usu
an earlier stadard)
In this case the Metis caimants were able to est their ancestry back to the pre-
control community and its integral practice of huntng for food.

Self-Government
R v Pamajewon – assumed w/o deciding that if s35(1) incl right to self-govern the
such claims would have to be resolved with the Van Der Peet Test.
-right to self-gov extends only to acitivties that were an integral part of aboriginal
society pre-contact

Delgamuukw v BC – SCC: did not comment directly on this right – but did say:
1. aboriginal title is held communally and decisions made w/respect to that
land are “made by that community”
2. aboriginal title encompasses the right to choose to what uses land can be
put

This would require internal decision-making structure very much akin to self-govt.

Aboriginal Title
= the right to the exclusive occuation of land
Crown has acquired all the land in Canada – but it is burdened by Aboriginal title
as long as not surrendered or lawfully extinguished

Delgamuukw = key case explaining aboriginal title:

-aboriginal title not proved by showing continuous chain of title
-proved by showing an aboriginal people occupied* it before sovereingty
-if this is shown than its “central significance to the culture” (Van der Peet) is
assumed.
-*must have been exclusive occupation
-if the land was used by others : need to show exclusive control and power to
exclude others was there if they chose to exercise it
-if relying on present occupation, claimant must show continuous from pre-
sovereignty (occasional breaks being ok as lonf as “substatial maintenance of the
connection”)
-strict rules of evidence do not apply and proper weight can be given to oral
histories

Distinct featurs of Aboriginal title:

-uses of the land not limited to those that were integral traditionally – but the
uses “must not be irreconcilable with the nature of the attachment to
the land wihc forms the basis of the particular group's aboriginal title”

-inalienable except to the Crown (so if selling to 3rd party Crown acts as
intermediary and has fiduciary role – reqd to ensure fair price for example -
Guerin)
-can only be hed cummunally
-is constitutionally protected (s35) (any infringement must be enacted by Fedl
govt and satisy the Sparrow test of justification – which would at minim req prior
consultation and fair compensation)

Extinguishment
1. by surrender: must be voluntary and must be to the Crown
 2. by constitutional amendment: aboriginal people should be allowed to
participate

(s35 removed the previous 3rd way of exting by legislation – s35 permits justified
regulation (Sparrow) but not exting)

-must state a plain and clear intention to extinguish

Treaty Rights
s35 protects treaty rights from derogation by either federal or provincial law
s35 explicitly incl modern land claims agreements – so as they are made they are
given costitutional status
-not subject to intl / contract law – it is an agreement btw the Crown and
Aboriginal nation.

Simon v The Queen; and R v Sioui combined give us the definition of an Indian
treaty:
1. The parties to it must be the Crown and the aborignal nation
2. The signatories must have auth to bind their principals (ie the Crown / Abor
Nation)
3. The parties must intend to create legally binding obligations
4. The obligations must be assumed by both sides so that it is a bargain.
5. There must be “a certain measure of solemnity” (important and serious –
strong intention of keeping the promise)

-**note doubtful expressions are to interpreted in favour of the Indians and the
treaties should be construed liberally

-the courts would likewise adopt a broad and generous approach to what
constitutes a treaty

Marshall 1 – whether M had treaty to sell eels – which he caught and sold w/o a
licence
SCC interpreted right to hunt fish and gather as implied from the peace and
friendship treaty that reqd Indians to trade only with the English – ie they wouldnt
have anything to trade w/o that right. It was a stretch.
Marshall 2 – did not do much to alter that decision.

On this basis, Mi'kmaqs ha commenced unlicensed logging operations in NS & NB

in response to Marshall 1. Enter Marshall 3 - where the Court stated that, unlie
eel fishing (a logical evoolution of traditional trading activities), logging was not a
traditional activity not could it be said to be a “natural evolution” of the minor
trade in wood taking place at the time of the treaty.

R v Morris – hunting at night with a truck and spotlight = logical evolution of

hunting at night with torched sticks (which the tradtional methods were in this
case).
Treaty Rights can be extingushed by:
1. voluntary surrender to the Crown, or
2. constitutioal amendment
3. and any methods w/in provided for w/in the treaty itself

**note: extiinguishment is not caused by longstanding non-exercise of treaty

rights (R v Sioui)

treaties can only be extinguished (w/o cosent of the Indians concerned) by

constituional amendment or competent legislation (enacted before 1982). (evven
then their consultation is reqd)

s25 makes it clear that s15 does not invalidate aboriginal treaty rights : Charter
rights not to be construed as derrogating from aborignal treaty or other rights or
freedoms.

s35.1 req any constl amendment to the native rights provisions of both the 1867
and 1982 Acts that directly apply to Aboriginals only be made w/ prior
consutlation w/ reps of the Aboriginal peoples of Canada.

s35 is outside the Charter --> not qualified by s1 reasonable limits and not subject
to s33 overide power
but also means --> not enforceable under s24

R v Powley -Court had to define “Metis” - 3 broad factors:

1. self-idenitfication – as a member of the Metis community
2. ancestral-connection – can trace ancestry to a historic Metis community
3. community acceptance – membership and participation in the modern Metis
community
*req. a community of distinct people of mixed ancestry, existing before effective
control and continuing to the present, w/ their own customs; way of life; and
recognizable group identity

In this case the 2 hunters met all 3 criteria and were entitled to hunt for food –
they were acquitted of a charge under provincial law for hunting moose w/o a
licence.

s35 protects “existing” rights:

incl future rights acquired after 1982

rights altered / extinguished before 1982 :

R v Sparrow – “existing” means “unextinguished”.
-if a right was validly extinguish/altered before 1982 --> not restored by s35
-but extinguishment will not be implied by extensivenees of regulation over an
area where those rights operate
in order to extinguish an aboriginal right a federal statute would have to clearly
and plainly state that intention
s35 provides that those rights are “recognized and affirmed”:
the constitutional guarantee had the effect of nullifying legislation that purported
to abridge the guranateed rights.

Sparrow Test of Justification:

Aboriginal rights are not absolute : any law that impairs an existing Ab right is
subject to judicial review to determine whether the impariment is justified:
1. must pursue an objective that is “compelling and substantial” (R v
Sparrow)
(eg. “conservationn of a limited resource” = justified; “public interest” = too
vague, not justified)
If justifed, then:
2.the means had to be consistent with “the special trust relationship”
btw the govt and the aboriginal peoples.

“Means” considerations include:

Have Indian claims given prioirty over other nonAboriginal interest groups?
Has there been as little infringement as possible to achieve the desired result?
If expropriating, was fair compensation available?
Was the aboriginal group in question consulted with as to what measures should
be implem?

Applied:
R v Adams – Que Fishing Regs prov for issue of licences for sport and commercial
fishing – w/some prov for Indian being given licence. --> held: failed Sparrow test
for justification – main goal = sport fishing --> not compelling and substantial
objective. But even if it was, did not meet Sparrow reqt of giving priority to
aboiginal rights to fish for food.

R v Gladstone – qualif Sparrow – priority reqt only applied to rights that were
limited by their own terms – like: right to fish for food such rights leave something
over for nonAboriginals
cp right to engage in commercial fishing – has no internal limitation – can
effectively eliminate all non Aboriginal access to the resource.

R v Badger – held that Sparrow test applied to treaty rights also – even though
this meant that treaty rights can be abridged unilaterally.

R v Marshall – SCC held that some laws that defined a treaty right might need no
justification – eg. limiting aboriginal catch to a “moderate livelihood” = simply
defining the right and such need not be justified.

Remember: Legislation cannot extinguish an Ab right.

Section 35.1
appropriate procedure for repeal of ss 91(24); 25; and 35 would be by the general
(seven-fifty procedure) of s38.
-no veto for aboriginals on amendments affecting their rights but s35.1 added
which basically requires a consitutional conference to be called where reps of
aboriginal peoples will discuss a proposed amendment before it is made (in
relation to ss91(24); 35, or 25.

(failed) Charlottetown Accord

although the Charlottetown Accord was defeated the leaders of 4 national aborig
organizations and 11 first ministers and the 2 territorial leaders were full parties
to all the discussions that led up to the Accord – and not just w/respect to the
aboriginal provisions but all of its far-reaching provisions. They were treated as
though they were a 3rd order of govt. The agreement of these parties that
aboriginals have a right to self- govt should be taken to mean that the right exists
now. The movement to self-govt will proceed despite the failure of the Accord.