Aboriginal Rights Essay, Research Paper

Did the Constitution Act, 1982 help to resolve the nature of aboriginal people rights in Canada? Through a brief historical approach of the courts and recent decisions of the Supreme Court of Canada, this paper intends to demonstrate how these decisions have substantially changed the landscape of aboriginal and treaty rights. This paper will also concentrate on issues of Treaty rights, aboriginal rights and title, reserved lands, harvesting rights, as well as self-government to further illustrate how the aboriginal peoples of Canada have been treated both unfairly and unjustly.

Before going further it is necessary to define how the Canadian government was established and came into power. Canada is an independent parliamentary democracy. Once a colony of Great Britain, it became independent in 1867 through the British North America Act. Provisions of this act made it necessary for the British Privy Council to approve any amendment to the constitution. In 1982 the British North America Act was replaced by a new constitution for the government of Canada. Queen Elizabeth visited Parliament Hill to proclaim the document and this act then completed the transfer of constitutional powers from Great Britain to Canada.

During Canada’s infancy the Royal Proclamation of October 7, 1763 was set forth by British Parliament. This document has been called the “Magna Carta of Indian Rights” and has been held by the courts to have “the force of a statute which has never been repealed”. It was, in part, intended to end the frauds and abuses which had marked the dealings with Indians in respect of their reserved lands and hunting grounds.

The several Nations or Tribes of Indians with whom we are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such parts of our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them or any of them as their Hunting Grounds.

(Royal Proclamation, 1763)

Even though lands where reserved for Indians by the Royal Proclamation, abuses continued. Only in Ontario had there been a consistent pattern of purchasing Indian lands by Treaty prior to Confederation. The Robinson Treaties of 1850, in fact, were models for the subsequent “numbered Treaties”. These treaties recognized the government’s desirability of protecting Indian rights from adverse local interests. Jurisdiction over Indians was entrusted to the federal government, but a series of court decisions diminished that authority and Canada’s powers to administer Indian lands. Indian powers of self- determination and rights to lands and resources were also greatly diminished.

The post-Confederation numbered Treaties – Rupert`s Land, 1870, were very similar to each other in taking cessions of Aboriginal title, promising reserves in proportion to population, small annuities, the continued exercise of hunting, fishing and trapping rights, ammunition, fishing twine, farm implements and other goods and services. The promise of schools on reserve in many Treaties is seen by First Nations as a commitment to provide education for their children; the promise of a medicine chest in one Treaty has been held by the courts to be a promise of health services. Canada does provide these programs, although it generally denies that there is a Treaty obligation to do so.

The promise of reserve lands was in a number of instances not fulfilled; those that were set apart were coveted and large areas carved out from them, sometimes with the consent of the communities as dictated by the Indian Act, sometimes unilaterally and even without compensation; reserve lands that could, under the Treaties, be expropriated by Canada for its own purposes became vulnerable to any municipality or corporation with expropriation powers.

Only after section 35 of the Constitution Act, 1982 was in place, the Court came to the view that overly strict interpretation of Treaties would lead to continued injustice. In its 1983 decision in Nowegijick v. The Queen, and again in Simon v. The Queen in 1985, the Court adopted the following rule of construction:

treaties and statutes dealing with Indians should be given a fair, large and liberal construction and doubtful expressions resolved in favor of the Indians, in the sense in which they would be naturally understood by the Indians.

(Simon v. The Queen, 1985)

Treaties in Canada, thanks to section 35 of the Constitution Act, 1982 now have greater legal protection than ever before. At the same time Treaty rights are not immune from legal threat. The historical Treaty process was heavily weighted in favor of government.

If Treaty rights were not always secure under Canadian law, Aboriginal rights were virtually non-existent. These supposed rights could be regulated by any level of government. Until 1982, there was no recourse and, until 1990, no one knew what recourse there was: Sparrow v. The Queen. Aboriginal title was also tenuous. Aboriginal title is in effect a claim to negotiate a Treaty with the Crown. It might be said that the courts favor the view that Aboriginal title is a political issue more than a legal one. Certainly it is a political issue too, with important implications in British Columbia, where Aboriginal title still exists in much of the province, and in Quebec and the Territories where modern land claims settlements have been negotiated on the basis of unextinguished Aboriginal title.

Aboriginal rights, however, is a broader term than Aboriginal title. In Sparrow, the Court dealt with Aboriginal fishing rights as independent of Aboriginal title. Other Aboriginal rights may include linguistic, religious and customary practices of many types. There is little law dealing with such rights to date; arguably any customary law which is recognized as creating legal rights or obligations is an Aboriginal right protected by the constitution.

At the present time, however, the focus is on Aboriginal title and this was an issue that came before the courts soon after Confederation.

The Constitution Act, 1867 assigned legislative authority over “Indians and Lands reserved for the Indians” to Parliament (s. 91 (24)), while assigning the property in all Crown lands and resources to the Provinces “subject to any trusts in respect thereof or any interest other than that of the Crown” (s. 109). These two sections came into conflict in the St. Catherines Milling case decided by the Judicial Committee of the Privy Council in 1888. This committee of law lords sitting in London, England was Canada’s highest court of appeal until 1949.

St. Catherines Milling was a dispute between the Crown in right of Canada and the Crown in right of the Province of Ontario over the control of Crown lands and resources. The issue arose from the grant of a timber berth on Lake Wabigoon in northwestern Ontario near Dryden. The entire area, known as the Northwest Angle, was disputed territory as between Canada and Ontario. The Aboriginal or Indian title had been extinguished by Treaty No. 3, concluded by the federal government in 1873 on the assumption that the lands were part of Rupert’s Land, acquired from the Hudson’s Bay Company in 1870. A boundary arbitration went to the Privy Council in the mid-1880’s and it was determined that the Northwest Angle was, in fact, part of Ontario.

The timber berth in the St. Catherines Milling case had been granted by Canada, not by the province. The federal government now attempted to justify this on the basis of the cession or surrender of the Indian title to Canada pursuant to Treaty No. 3. The Privy Council ruled against this assertion of federal jurisdiction over the Treaty lands and confirmed, relying on section 109 of the Constitution Act, 1867, the provincial title to the lands and resources. The Aboriginal or Indian title, which was ascribed to the Royal Proclamation, had been “an interest other than that of the Province”, but:

It appears to [their Lordships] to be sufficient for the purposes of this case that there has been all along vested in the [provincial] Crown a substantial and paramount estate, underlying the Indian title, which became a plenum dominium whenever that title was surrendered or otherwise extinguished.

(St. Catherines Milling & Lumber Co. v. The Queen, 1888)

As a result, Canada needed provincial consent to establish reserves under Treaty and, more importantly, provincial concurrence to sell reserve lands if they were surrendered for sale pursuant to the provisions of the Indian Act. A general federal- provincial agreement to this effect was reached with Ontario in 1924 and amended in 1986.

From the time preceding the Royal Proclamation to the present day, the issue of Aboriginal land claims has never gone away. In addition to the fundamental question of Aboriginal title, First Nations lodged regular complaints about Crown management of their lands and assets and infringements of their Treaty rights. First Nations peoples came to accept relatively small areas of land and promises of continued access to fish, game and other resources in exchange for their consent to sharing their traditional lands. At least this was their understanding; governments had other ideas and Treaty documents used the legal terminology of cession and surrender of their Aboriginal rights. Where there were no Treaties, governments were quite prepared to proceed as though there was no need for Treaties. And where there were Treaties, governments returned to get more land and slowly began to regulate the exercise of rights.

Since the inception of the Constitution Act, 1982, Section 35 now provides that the “aboriginal peoples of Canada” include the Indian, Inuit and M tis peoples, that modern land claims agreements are “treaties” and that Aboriginal and Treaty rights are guaranteed equally to men and women. Section 25 of the Canadian Charter of Rights and Freedoms provides that it shall not be construed so as to erode Aboriginal and Treaty rights or rights assured under the Royal Proclamation.

The issue of what rights were “existing” in 1982, when this provision came into force, was answered by the Supreme Court of Canada in 1990 in Sparrow v. The Queen, an Aboriginal fishing rights case from British Columbia. The Court ruled that the rights protected by section 35 were those which had not been extinguished by statute or by consent of the Indians. This ruling overturned some previous decisions which suggested that Aboriginal and Treaty rights had been frozen in the form in which they had been regulated prior to 1982. The Court ruled that regulation of a right does not extinguish it.

Aboriginal and Treaty rights can, however, be regulated by competent federal enactment. Where such enactments conflict with protected rights, they must be “justified” by government as part of the balance struck by the Court between federal power and federal responsibility in respect of Aboriginal peoples and their constitutional rights.

Since 1982, however, constitutional affirmation of Aboriginal and Treaty rights has made a big difference. In Sparrow, the Court stopped well short of allocating a fixed percentage of the fishery, in that case the salmon fishery on the lower Fraser River, to Indians. Instead, the Court directed that, to be constitutionally valid, fishery regulations must make provision for a priority allocation to the Aboriginal fishery.

Sparrow dealt with a fishery based on Aboriginal rights: the common law and constitutional recognition of long-time user by specific Aboriginal peoples. While there is no priority allocation scheme in the harvesting laws, federal or provincial, governments continue to prosecute Treaty Indians based on their interpretation of what Aboriginal and Treaty rights mean. A number of Aboriginal harvesting issues are now before the Supreme Court of Canada, most notably Indian hunting and fishing cases from B.C., however, it remains to be seen how the Court will interpret their findings and what variety of “justice” they will apply.

Another mounting issue is the debate over reserve lands. There are nearly 2300 Indian reserves in Canada, approximately half of them in British Columbia. They are all governed by the Indian Act and, especially by its land provisions, although only about half of the communities actually apply those provisions in allotting reserve lands to members. Where the statutory provisions are not used, individual land tenure is either unregulated or governed by custom and consensus.

Occupation by non-Indians is considered a trespass. Agreements with individual Indians or Bands to use and occupy reserve land are void, preserving the exclusive right of the Crown to deal with Indians in respect of their lands as originally set out in the Royal Proclamation. Reserve lands cannot be mortgaged, pledged or otherwise used as security for financing and are not subject to seizure under legal process. These conditions set forth by the government once again goes forward to demonstrate the limitations and restrictions placed on aboriginal peoples and also illustrate the need for reform.

Governments have been seriously dealing with Aboriginal claims for about 20 years. There are two broad classifications under which claims can be negotiated with the federal government: “Comprehensive Claims” and “Specific Claims”. Most claims have proven resilient to early settlement, if they are negotiated at all, and the lengthy negotiating process is generally funded by government on a less than regal scale. Particularly in the case of specific claims, where the federal government is the defendant, the judge of liability, the arbiter of compensation and the funder of the negotiation process, it has taken major budget increases to achieve a reasonable level of settlements. And the federal government is not the only government involved.

Because alienated lands and resources, once relieved of the Indian title, fall under provincial jurisdiction, provincial governments must also become involved in settlements which involve a return of lands or resources to Indians. This fact has frustrated many negotiations although there seems to be a greater provincial willingness to participate in recent years. Here again, the return of Crown resources to First Nations has provoked reaction in the non-Aboriginal community. This gives rise to concern that provinces may be more reluctant to engage in such unpopular processes in future. Many observers feel that the Harris government in Ontario, elected in 1995 and then re-elected for a second term in 1999, will slowly withdraw from all claims negotiations and at least a slow-down is expected in BC.

There has been a tendency, in recent years, to create commissions such as the Indian Specific Claims Commission or the B.C. Treaty Commission to deal with some of these issues, but there is no early indication that these commissions are part of the solution. It is certain that Aboriginal claims, including M tis claims which have not been dealt with at all, will be with us for many years to come.

The final issue that will be dealt with in this paper is that of self-government. The many initiatives that fall generally under the heading of self-government are commonly seen as a fair and reasonable transition from government limitations imposed on Aboriginal communities and individuals to a modern, community-based self-actualizing form of government. This has many legal implications in terms of constitutional, legislative and jurisdictional issues: all complicated by an almost theological reliance upon a theory of “inherent rights” of self-government. This is not to suggest that the theory is wrong: it lacks, however, specific legal or even political content at the present time. Recognition of the inherent right of Aboriginal communities to govern themselves was a feature of the rejected Charlottetown Accord and is a commitment contained in the well-known “Red Book” advanced by the current Liberal government in Ottawa during the 1993 election campaign. These commitments have yet to be realized.

The Royal Commission on Aboriginal Peoples, 1996, issued a report arguing that the right of self-government is constitutionally protected by section 35. There is scant judicial authority for that proposition. A much-diminished concept of self-government was set out in the federal government’s 1995 Inherent Rights Policy which offers greater provincial intrusion into First Nations affairs, limitations on the range of powers that can be negotiated and no new funding for implementation.

When one considers past legislation and Section 35 of the Constitution Act, 1982, which states that “(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed” and that “(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may so be acquired”. One must realize that with the historic and present range of issues concerning Indian reserve communities and their affairs, which is partly or wholly subject to the discretion of the Minister or Governor in Council, that Canada has not dealt adequately with aboriginals in a fair and equitable manner. Perpetuation of the existing legislative scheme should be moved to further reform, perhaps then, we can avoid further incidents such as Oka. Although positive steps have been made, in this paper’s view, the present legislative course is simply unjust.

List of Cases Referred To:

Nowegijick v. The Queen (1983), 144 D.L.R. (3d) 193 (S.C.C.)

R. v. Simon (1985), 24 D.L.R. (4th) 390 (S.C.C.)

St. Catherines Milling & Lumber Co. v. The Queen (1888), 14 App. Cas. 46 (P.C.)

Sparrow v. The Queen (1990), 70 D.L.R. (4th) 385 (S.C.C.)

Williams v. The Queen (1992), 90 D.L.R. (4th) 129 (S.C.C.)

Constitution Act, 1867

Royal Proclamation, 1763

Indian Act,

Robinson Treaties, 1850

Post Confederation Treaties, Rupert’s Land, 1870 (1-11)