I
Ab iginal
Righ
September 29, 2021
CHLOE WILSON AKSHPREET MANN
II
T da
P e en a i n
Backg nd
Sec i n
T ea Righ
D
C n l
Q e i n and An e
III
Ab iginal Pe le
The term Aboriginal peoples is used in Canadian la as an umbrella term to refer to three distinct groups of Indigenous
peoples in Canada:
First Nations
Inuit
M tis
Preference for the term Indigenous over Aboriginal .
Appro imatel 5% of Canadian population identif as indigenous.
Indigenous communities successfull governed their communities for thousands of ears before the arrival of European
settlers, some 150 to 500 ears ago, ith their o n la s and legal processes.
IV
Pi
Ro al Proclamation 1763: forbidding settlers from encroaching on indigenous lands.
Determination to assimilate.
Indian Act:
Advanced goals of assimilation
Registered as members of the communit
Replacing diverse culturall grounded governance models
Diminishing indigenous rights
1928 R S ib
The Grand Chief of the Mi kmaq as charged ith having violated provincial hunting legislation. Grand Chief
S libo argued that a 1752 Treat of Peace and Friendship prevented provincial legislation from appl ing to his
activities, due to the promise that the said Tribe of Indians shall not be hindered from but have free libert to
hunt and fish as usual. The judge convicted the Grand Chief, having found that the 1752 agreement is not a
treat at all because the Mi kmaq did not have the status to enter into treaties in the first place.
Residential School S stem.
V
Rec ncilia i n A
ach
A ne vision is required that reconciles Indigenous peoples right to self-determination ith the Cro n s assertion of
sovereignt :
"The most significant damage is to the trust that has been broken bet een the Cro n and Aboriginal peoples.
That broken trust must be repaired. The vision that led to that breach in trust must be replaced ith a ne vision
for Canada; one that full embraces Aboriginal peoples right to self-determination ithin, and in partnership
ith, a viable Canadian sovereignt " J h B
1973 Ca de BC
The Supreme Court of Canada ackno ledged Indigenous peoples' continuing legal rights in land in 1973.
The Court noted: the fact is that hen the settlers came, the Indians ere there, organi ed in societies and
occup ing the land as their forefathers had done for centuries and found that this fact had legal consequences.
C n i
S
i nali a i n
ce f Ab iginal Righ
1763 Ro al Proclamation
1951 Indian Act
Treaties
1867 Constitution
1982 Constitution
VI
VII
Fede ali m
Jurisdiction to make laws
Federal (s.91)
Provincial (s.92)
Aboriginal (self-government and
s35(1))
Section 91(24)
S.91(24) t o branches:
(i) Indians
Not defined in the Constitution, but
probabl
has the same meaning as
Aboriginal peoples in s.35 of the
Constitution Act 1982
(ii) lands reserved for the Indians
Includes reserves and lands subject to
unsurrendered Aboriginal title
VIII
Indian Ac
Section 88 of the Indian Act:
Subject to the terms of an treat and an other Act of Parliament, all la s of general application from time to
time in force in an province are applicable to and in respect of Indians in the province, e cept to the e tent that
those la s are inconsistent ith this Act or the First Nations Fiscal Management Act, or ith an order, rule,
regulation or la of a band made under those Acts, and e cept to the e tent that those provincial la s make
provision for an matter for hich provision is made b or under those Acts.
This section alters the legal results in 3 a s:
a. It provides absolute protection against an significant infringement of rights b provincial legislation;
b. it renders applicable to Indians la s of general application that ould other ise have to be read do n pursuant
to the interjurisdictional immunit doctrine because the affect the core of Indianness
c. it prevents provincial la s from appl ing to Indians if those la s overlap ith the subject-matter of the Indian
Act
IX
P
incial La
General Rule
Federal (s.91)
Provincial (s.92)
Aboriginal (self-government and
s35(1)
Distinct position of Aboriginal Peoples
Pith and Substance: provinces lack the po er
to pass la s e tinguishing Aboriginal rights
BUT Incidental and Double Aspect Doctrines
Interjurisdictional Immunit Doctrine
Interjurisdictional Immunit Doctrine does not
appl to aboriginal title cases
T ih
i Na i
.B i i hC
bia, 2014
5 e ceptions
Singling out
A la that singles out Indians or Indian
reserves for special treatment is invalid
Indianness
La s that impair the status or capacit of
Indians or that affect Indianness
Paramountc
If provincial la is inconsistent ith Indian
Act it is inoperative
Natural Resources Agreement
Provincial la s can t den the NRA hich is
a right of Indians to take game and fish for
food.
Section 35
If provincial la infringed an aboriginal or
treat right the la
must satisf the
S a
Te .
X
Sec i n
Canada Act 1982
The e i ing ab iginal and ea igh f he ab iginal e le in Canada a e
he eb ec gni ed and affi med
In hi Ac Ab iginal Pe le f Canada incl de he Indian In i and Mé i
Pe le f Canada
F g ea e ce ain in b ec i n
ea igh incl de igh ha n
e i b a f land claim ag eemen
ma be ac i ed
N i h anding an he
i i n f hi ac he ab iginal and ea igh
efe ed in b ec i n a e g a an eed e all
male and female e n
XI
R v Sparro
Facts: Mr Sparro , a member of the Musqueam Band as charged in 1984 under the Fisheries Act ith fishing ith a drift
net longer than that permitted b the terms of his Band's Indian food fishing licence. He defended the charge on the
basis that he as e ercising an e isting aboriginal right to fish and that the net length restriction contained in the Band's
licence as invalid in that it as inconsistent ith s. 35(1) of the Constitution Act, 1982.
Issue: Can legislation that affects the e ercise of aboriginal rights be valid?
Ratio: Legislation that affects the e ercise of aboriginal rights ill be valid if it meets the test for justif ing an
interference ith a right recogni ed and affirmed under s. 35(1).
XII
Sparro Test
Infringement
Whether the limitation imposed b the legislation is unreasonable;
Whether the legislation imposes undue hardship; and
Whether the legislation denies the holders of the right their preferred means of e ercising the right.
Justification
Valid legislative objective
Honour of the Crown
The special trust relationship and the responsibilit of the government vis- -vis Aboriginals must be the
first consideration in determining whether the legislation or action in question can be justified.
To justif on basis of broader public good the Crown must show:
that it discharged its procedural dut to consult and accommodate;
that its actions were backed b a compelling and substantial objective; and
that the governmental action is consistent with the Crown s fiduciar obligation to the group.
XIII
Section
Protections
Aboriginal rights
Activit -specific rights (Va de Pee test)
Right protects elements of practices, customs or traditions integral to the distinctive culture of the
Aboriginal group claiming the right
prior to contact with Europeans; or in case of M tis peoples, prior to the time of effective European control
must be continuit between contemporar practices defended as Aboriginal rights and historicall
integral practices during the pre-contact era
sufficient to connect integral practices now to pre-contact practice
Aboriginal title
Self-government rights
Treat Rights (Ma hall)
Large and liberal interpretation
Doubts resolved in favour of Aboriginal signatories
Sensitivit to Aboriginal perspective
Honour of the Crown
Common intention
S a
justification test applies as well.
XIV
Ab iginal Ti le Te
Tsilhqot in Nation v British Columbia
Facts: In 1983, the province of British Columbia issued a licence to Carrier Lumber to cut trees in lands that
included remote central British Columbia territor which was claimed b a band of the Tsilhqot'in Nation. After
unsuccessful negotiations with the provincial government the band filed suit seeking a court declaration that
would prohibit Carrier Lumber's commercial logging operations in the area, and establish their claim for Aboriginal
title to the land.
In asking whether Aboriginal title is established, the general requirements are: (set out in Delgam k)
1. Sufficient occupation of the land claimed to establish title at the time of assertion of European sovereignt ;
2. Continuit of occupation where present occupation is relied on; and
3. E clusive historic occupation.
NB: Claimant group bears onus of establishing aboriginal title
XV
Ab iginal Ti le
Righ and Re ic i n
Tsilhqot in
Similar title to fee simple:
the right to decide how the land will be used;
the right of enjo ment and occupanc of the land;
the right to possess the land;
the right to the economic benefits of the land; and
the right to pro-activel use and manage the land.
Restriction
It is collective title held not onl for the present generation but for all succeeding generations
[76] The right to control the land conferred b Aboriginal title means that governments and others seeking to use
the land must obtain the consent of the Aboriginal title holders. If the Aboriginal group does not consent to the
use, the government s onl recourse is to establish that the proposed incursion on the land is justified under s. 35.
XVI
T ea Righ
Elemen
f a T ea
Hogg
Pa ie ne ide c n ne ide ab iginal na i n
Agenc m ha e a h i
bind
In en i n c ea e legal ela i n
C n ide a i n bliga i n m be a med b b h ide
F mali m be a ce ain mea e f lemni
XVII
R v Marshall
Issue: Whether a Mi kmaq man, who had been charged with fishing for eels and selling eels without a licence, had a
treat right to catch and sell eels.
The Treat was a peace and friendship treat entered into in 1760 and in respect to trade which stated that the
said would no longer trade an commodities in an manner e cept with the managers of a truck house .
A claimant seeking to rel on a treat right to defeat a charge of violating Canadian law must first establish a
treat right that protects, e pressl or b inference, the activities in question.
Mr Marshall s rights were protected b the Treat :
The accused s treat rights are limited to securing necessaries and do not e tend to the open-ended
accumulation of wealth. Thus... the are treat rights within the meaning of s. 35 of the Constitution Act, 1982.
The surviving substance of the treat is not the literal promise of a truckhouse, but a treat right to continue
to obtain necessaries through hunting and fishing b trading the products of those traditional activities subject
to restrictions that can be justified .
D
C n l
The dut to engage in meaningful consultation and
accommodation is part of a process of reconciliation
flowing from the Crown s dut of honourable
dealing.
XVIII
XIX
Haida Nation v British Columbia
Issue: Is the government required to consult with the Haida peoples about decisions to harvest the forests and to
accommodate their concerns before the have proven their title to land and their Aboriginal rights?
Government argument: lt is under no dut to consult and accommodate prior to final determination of the scope
and content of the right.
Held:
The government s dut to consult with Aboriginal peoples and accommodate their interests is grounded in the
honour of the Crown.
It is not a mere incantation, but rather a core precept that finds its application in concrete practices.
The content of the dut varies with the circumstances:
from a minimum dut to discuss important decisions where the breach is less serious or relativel
minor ;
through the significantl deeper than mere consultation that is required in most cases ;
to full consent of [the] aboriginal nation on ver serious issues.
XX
Rio Tinto Alcan Inc v Carrier Sekani Tribal Council
Facts: A dam and reservoir was built in the 1950s which altered the amount and timing of water in the Nechako
River. The Carrier Sekani were not consulted about the dam project. E cess power generated b the dam is sold b
Alcan to BC H dro. In 2007, the band asserted that the new Energ Purchase Agreement should be subject to
consultation under s. 35.
The dut to consult arises when: (affirming Haida)
the Crown has knowledge, actual or constructive, of a potential aboriginal claim or right;
the Crown must be contemplating conduct which engages a potential aboriginal right; and
there must be the potential that the contemplated conduct ma adversel affect an aboriginal claim or right.
The claimant must show a causal relationship between the proposed government conduct or decision and
a potential for adverse impacts on pending Aboriginal claims or right
Held: The failure to consult on the initial project was an underl ing infringement, and was not sufficient to trigger a
dut to consult.
XXI
Mikise Cree First Nation v Canada
Facts: In April 2012, the minister of finance introduced t o pieces of omnibus legislation, Bills C-38 and C-45, that
altered Canada s environmental protection regime. The Mikise Cree First Nation as not consulted on either bill..
Iss e re ol ed aro nd balancing the d t to cons lt and the separation of po ers.
Fo r of Se en of the j dges held
While courts have the po er to nullif enacted legislation that is inconsistent ith Canada s Constitution
(Sparro ) and/or quash e ecutive decisions based on that legislation (Haida), the courts cannot rule on
challenges to the process b hich that legislation is formulated, introduced or enacted.
Three remaining majorit stated;
Simpl because the dut to consult doctrine, as it has evolved to regulate e ecutive conduct, is inapplicable in
the legislative sphere, does not mean the Cro n qua sovereign is absolved of its obligation to conduct itself
honourabl . Instead, declarator relief could be appropriate here legislation is enacted that is inconsistent
ith the honour of the Cro n and other protections ma ell be recogni ed in future cases.
Left ith some uncertaint .
XXII
Q e ion
Has canada f lfilled its promise to aboriginals in
terms of reconciliation? Refer to case la and
rele ant academic articles to s pport o r ans er.
XXIII
An er
Section 35 is a part of the Constitution Act; it recogni es and affirms Aboriginals rights.
When the Constitution as drafted, the Canadian government did not initiall intend or plan to incorporate
Aboriginal rights so e pansivel ithin the actual Constitution.
Earl drafters did not incorporate recognition of e isting rights of Aboriginals and the relationships that ere
in place. Nonetheless, via campaigns and movements, Aboriginal peoples triumphantl fought to have their
rights enshrined and protected.
Section 35 ackno ledges Aboriginal rights, BUT it did not create or invent them.
Subsection 35(1) applies to Aboriginal and treat rights in e istence hen the Constitution Act, 1982 came into
effect. Therefore, the rights ere in e istence prior to section 35 coming into force.
It does not revive e tinguished rights. Rights that have been e tinguished are essentiall gone.
Ho ever, rights that ere simpl regulated continue in e istence. These rights are protected b s. 35. The
significance of the ord e isting as elaborated upon in the case of R v Sparro .
"Section 35(1) applies to rights in e istence hen the Constitution Act, 1982 came into effect; it does not
revive e tinguished rights. An e isting aboriginal right cannot be read so as to incorporate the specific
manner in hich it as regulated before 1982. The phrase e isting aboriginal rights must be interpreted
fle ibl so as to permit their evolution over time
XXIV
An er Con in ed
Although section 35 recogni es and affirms e isting Aboriginal rights, it fails to define them.
Case la has assisted in defining rights over time.
The ording e isting aboriginal rights is understood and interpreted adaptabl in order to allo and permit
their logical development and evolution over time.
Aboriginal rights have been interpreted to incorporate a broad range of cultural, political, social and economic
rights.
R. . Va de Pee established a t o-stage test to identif Aboriginal rights (s. 35 of Constitution):
(1) The precise nature of the activit must be identified.
(2) The activit must have been an integral part of the specific distinctive culture of the Aboriginal group
prior to contact ith Europeans.
The second part of the test as altered in the case of De ga
k .B i i hC
bia for Aboriginal title claims.
No , the claimant must establish e clusive use and occupation of the territor at the time of assertion of
British sovereignt .
XXV
An er Con in ed
R v S libo (1928)
Mi kmaq Grand Chief Gabriel S llibo is considered the first to use the 1752 Peace and Friendship Treat to fight
for Canada s recognition of treat rights.
In R. v. S llibo (1928), he contended that the 1752 treat protected and secured his rights to hunt and fish. He
lost the case and as thereafter convicted.
In 1985, hen the Supreme Court of Canada ruled in R. v. Simon another case regarding Mi kmaq hunting
rights it found that the 1752 treat did in fact give Mi kmaq people the right to hunt on traditional territories.
This as a reverse finding to the case of R v S libo in 1928.
This judgment vindicated both S llibo and James Simon of the 1985 case.
In 2017, appro imatel 90 ears after his conviction, S llibo received a posthumous pardon and apolog from
the Government of Nova Scotia.
Article 1: JOHN BORROWS: Seven Gifts: Revitali ing Living La s Through Indigenous Legal Practice, (2016 2017)
2:1 Lakehead La Journal
Article 2 61/295.United Nations Declaration on the Rights of Indigenous People
Case:
Rio Tinto Alcan Inc. v Carrier Sekani Tribal Council [2010] 2 SCR 650
Chippe as of the Thames First Nation v. Enbridge Pipelines Inc., [2017] 1 SCR 1099
Mikise Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40
XXVI
The End
"The mo ement to self-go ernment can and ill
proceed. (H gg)