CONSTITUTIONAL LAW
20 ABORIGINAL PEOPLE:
DIVISION OF POWERS
AND GOVERNANCE
Shigenori Matsui
1
INTRODUCTION
 Who are the aboriginal people?
 What is the power of the federal Parliament
and provinces?
 Is the self-governance by aboriginal people
constitutionally guaranteed?
2
I ABORGINAL PEOPLE
 S. 35(2) Indian, Inuit, and Métis
3
 Indian
4
 Inuit
5
 Métis
6
II STATUS OF ABORIGINAL PEOPLE
AND PROTECTION OF THEIR RIGHTS
 The Royal Proclamation of 1763




Recognized that Indians had rights in their
lands
Established imperial control over settlement
on Indian lands
Prohibited private purchase of Indian lands,
and
Required the alienation of Indian rights in their
lands only by way of surrender to the Crown
7
 S. 91(24) of the Constitution Act, 1867 gave the
power over “Indians, and Lands reserved for the
Indians” to the federal Parliament
 S. 109 also provided:
 “All Lands… belonging to the several Provinces of
Canada, Nova Scotia, and New Brunswick at the
Union…shall belong to the several Provinces of
Ontario, Quebec, Nova Scotia, and New Brunswick in
which the same are situate or arise, subject to any
Trusts existing in respect thereof, and to any Interest
other than that of the Province in the same.”
8
 Prior to 1973,it had been believed that the
Royal Proclamation was the sole legal source
of aboriginal rights.
 St. Catherine’s Milling and Lumber Co. v. the
Queen (1888)
9
 Yet, in Calder v. A-G British Columbia [1973],
the Supreme Court of Canada opened the
possibility of other sources.

10
 “There can be no doubt that the Privy Council
found that the Proclamation of 1763 was the
origin of the Indian title-- "Their possession,
such as it was, can only be ascribed to the
Royal Proclamation in favour of all Indian
tribes then living under the sovereignty and
protection of the British Crown."

I do not take these reasons to mean that
the Proclamation was the exclusive source of
Indian title.”
11
 Guerin v. The Queen [1984]
12
 “In my view, the nature of Indian title and the
framework of the statutory scheme established
for disposing of Indian land places upon the
Crown an equitable obligation, enforceable by
the courts, to deal with the land for the benefit of
the Indians. This obligation does not amount to a
trust in the private law sense. It is rather a
fiduciary duty. If however, the Crown breaches
this fiduciary duty it will be liable to the Indians in
the same way and to the same extent as if such
a trust were in effect.”
13
 “The fiduciary relationship between the
Crown and the Indians has its roots in the
concept of aboriginal, native or Indian title.
The fact that Indian Bands have a certain
interest in lands does not, however, in itself
give rise to a fiduciary relationship between
the Indians and the Crown. The conclusion
that the Crown is a fiduciary depends upon
the further proposition that the Indian interest
in the land is inalienable except upon
surrender to the Crown.”
14
 In Calder v. Attorney General of British
Columbia, [1973] S.C.R. 313, this Court
recognized aboriginal title as a legal right
derived from the Indians' historic occupation
and possession of their tribal lands…In
recognizing that the Proclamation is not the
sole source of Indian title the Calder decision
went beyond the judgment of the Privy
Council in St. Catherine's Milling and Lumber
Co. v. The Queen (1888)…
15
 “Indians have a legal right to occupy and possess
certain lands, the ultimate title to which is in the
Crown. While their interest does not, strictly
speaking, amount to beneficial ownership, neither is
its nature completely exhausted by the concept of a
personal right. It is true that the sui generis interest
which the Indians have in the land is personal in the
sense that it cannot be transferred to a grantee, but it
is also true, as will presently appear, that the interest
gives rise upon surrender to a distinctive fiduciary
obligation on the part of the Crown to deal with the
land for the benefit of the surrendering Indians.”
16
 Now, s. 35 of the Constitution Act, 1982
affirmed these aboriginal rights as
constitutional rights:




35. (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 Métis 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. 17
 Aboriginal title and aboriginal rights
 Fiduciary duty of the crown
18
III DIVISION OF POWERS AND
ABORIGINAL SELF-GOVERNANCE
 Federal power over Indians and lands
reserved for the Indians
 Necessity of protecting Indians
 Two separate powers: the power over
Indians and the power over lands reserved
for the Indians
 Meaning of “Indians”
 To what extent the Parliament could enact
laws to regulate Indians?
19
 The provincial legislature has a power to
regulate the residents, including aboriginal
people, under its power over property and
civil rights within the province under s. 92
(13). The Supreme Court of Canada has
developed the jurisprudence of allowing
application of general provincial laws to
Indians and land reserved for the Indians.
Yet, there is a constitutional limit.
20
 s. 88 of the Indian Act, R.S.C. 1970
 “Subject to the terms of any treaty and any other Act
of the Parliament of Canada, all laws of general
application from time to time in force in any province
are applicable to and in respect of Indians in the
province, except to the extent that such laws are
inconsistent with this Act or any order, rule, regulation
or by-law made thereunder, and except to the extent
that such laws make provision for any matter for
which provision is made by or under this Act.”
21
 Delgamuukw v. British Columbia, [1997]
22
 “…the Court has held that s. 91(24) protects a "core"
of Indianness from provincial intrusion, through the
doctrine of interjurisdictional immunity.
 It follows, at the very least, that this core falls within
the scope of federal jurisdiction over Indians. That
core, for reasons I will develop, encompasses
aboriginal rights, including the rights that are
recognized and affirmed by s. 35(1). Laws which
purport to extinguish those rights therefore touch the
core of Indianness which lies at the heart of s. 91(24),
and are beyond the legislative competence of the
provinces to enact.”
23
 “The core of Indianness encompasses the whole
range of aboriginal rights that are protected by s.
35(1). Those rights include rights in relation to land;
that part of the core derives from s. 91(24)'s
reference to "Lands reserved for the Indians". But
those rights also encompass practices, customs and
traditions which are not tied to land as well; that part
of the core can be traced to federal jurisdiction over
"Indians". Provincial governments are prevented from
legislating in relation to both types of aboriginal
rights.”
24
 “The vesting of exclusive jurisdiction with the
federal government over Indians and Indian
lands under s. 91(24), operates to preclude
provincial laws in relation to those matters.
Thus, provincial laws which single out Indians
for special treatment are ultra vires, because
they are in relation to Indians and therefore
invade federal jurisdiction…In other words,
notwithstanding s. 91(24), provincial laws of
general application apply proprio vigore to
Indians and Indian lands. ”
25
 “What must be answered, however, is whether the
same principle allows provincial laws of general
application to extinguish aboriginal rights. I have
come to the conclusion that a provincial law of
general application could not have this effect, for two
reasons. First, a law of general application cannot, by
definition, meet the standard which has been set by
this Court for the extinguishment of aboriginal rights
without being ultra vires the province.
 “Second, …s. 91(24) protects a core of federal
jurisdiction even from provincial laws of general
application, through the operation of the doctrine of
interjurisdictional immunity.”
26
 Provincial laws which would otherwise not apply to
Indians proprio vigore, however, are allowed to do so
by s. 88 of the Indian Act, which incorporates by
reference provincial laws of general application...
However, it is important to note… that s. 88 does not
"invigorate" provincial laws which are invalid because
they are in relation to Indians and Indian lands...
What this means is that s. 88 extends the effect of
provincial laws of general application which cannot
apply to Indians and Indian lands because they touch
on the Indianness at the core of s. 91(24).
27
 Dick v. The Queen, [1985]
28
 I believe that a distinction should be drawn between
two categories of provincial laws. There are, on the
one hand, provincial laws which can be applied to
Indians without touching their Indianness, like traffic
legislation; there are on the other hand, provincial
laws which cannot apply to Indians without regulating
them qua Indians.
Laws of the first category, in my opinion, continue to
apply to Indians ex proprio vigore as they always did
before the enactment of s. 88…and quite apart from
s. 88.
I have come to the view that it is to the laws of the
second category that s. 88 refers.
29
 Kitkatla Band v. British Columbia, [2002]
30
 In considering this question, the Court must assess a
number of factors. First, the Court must remember
the basic assumption that provincial laws can apply
to aboriginal peoples; First Nations are not enclaves
of federal power in a sea of provincial jurisdiction….
The mere mention of the word "aboriginal" in a
statutory provision does not render it ultra vires the
province.
 Second, it is clear that legislation which singles out
aboriginal people for special treatment is ultra vires
the province…
 Nevertheless, "singling out" should not be confused
with disproportionate effect….
31
 R v. Morris [2006]
 “Parliament has exclusive power to make
laws in relation to "Indians, and Lands
reserved for the Indians". Provincial laws
whose "pith and substance" relates to this
head of power are ultra vires and invalid...
However, provincial laws of general
application that affect Indians only incidentally
and are enacted under a provincial head of
power will be found to be intra vires and valid.
 In this case, there is no question that the
relevant provisions of the Wildlife Act are
valid provincial legislation under s. 92(13) of
the Constitution Act, 1867, which refers to
 “Insignificant interference with a treaty right
will not engage the protection afforded by s.
88 of the Indian Act... Therefore, provincial
laws or regulations that place a modest
burden on a person exercising a treaty right
or that interfere in an insignificant way with
the exercise of that right do not infringe the
right.
 A prima facie infringement, however, will
trigger the s. 88 treaty right protection.”
 “If provincial laws or regulations interfere
insignificantly with the exercise of treaty
rights, they will not be found to infringe them
and can apply ex proprio vigore or by
incorporation under s. 88.
 The protection of treaty rights in s. 88 of the
Indian Act applies where a conflict between a
provincial law of general application and a
treaty is such that it amounts to a prima facie
infringement. Where a provincial law of
general application is found to conflict with a
treaty in a way that constitutes a prima facie
infringement, the protection of treaty rights
IV SELF-GOVERNMENT
 Do aboriginal people have a right of self-
governance?
 R. v. Pamajewon, [1996]
36
 Assuming without deciding that s. 35(1) includes self-
government claims, the applicable legal standard is
nonetheless that laid out in Van der Peet, supra.
Assuming s. 35(1) encompasses claims to aboriginal
self-government, such claims must be considered in
light of the purposes underlying that provision and
must, therefore, be considered against the test
derived from consideration of those purposes. This is
the test laid out in Van der Peet, supra. In so far as
they can be made under s. 35(1), claims to selfgovernment are no different from other claims to the
enjoyment of aboriginal rights and must, as such, be
measured against the same standard.”
37
 Mitchell v. MNR [2001]
38
 This Court has not expressly invoked the doctrine of
"sovereign incompatibility" in defining the rights
protected under s. 35(1). In the Van der Peet trilogy,
this Court identified the aboriginal rights protected
under s. 35(1) as those practices, customs and
traditions integral to the distinctive cultures of
aboriginal societies... Subsequent cases affirmed this
approach to identifying aboriginal rights falling within
the aegis of s. 35(1)…and have affirmed the
doctrines of extinguishment, infringement and
justification as the appropriate framework for
resolving conflicts between aboriginal rights and
competing claims, including claims based on Crown
sovereignty.
39
 The Crown now contends that "sovereign
incompatibility" is an implicit element of the Van der
Peet test for identifying protected aboriginal rights, or
at least a necessary addition. In view of my
conclusion that Chief Mitchell has not established
that the Mohawks traditionally transported goods for
trade across the present Canada-U.S. border, and
hence has not proven his claim to an aboriginal right,
I need not consider the merits of this submission.
Rather, I would prefer to refrain from comment on the
extent, if any, to which colonial laws of sovereign
succession are relevant to the definition of aboriginal
rights under s. 35(1) until such time as it is necessary
for the Court to resolve this issue.
40
 Should the right of self-government be
admitted as an aboriginal right under s. 35?
 If the aboriginal people are granted the right
of self-government, what would be the
appropriate relationship between the federal
government and provincial government?
41
 Should the self-government allow the self-
governance beyond state border?