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Topical Information for Parliamentarians

Aboriginal and Treaty Rights

TIPS-96E
October 5, 2007


Constitutional Affirmation

By the 1970s, Canadian courts had begun to acknowledge that Aboriginal peoples’ prior occupation of the land gave rise to legal rights not provided for by treaty or statute.  The constitutionalization of Aboriginal and treaty rights in 1982 established a new legal framework within which long-standing Aboriginal claims might be addressed.  Section 35 of the Constitution Act, 1982 did not create rights; the provision recognizes and affirms the “existing Aboriginal and treaty rights” of the Indian, Inuit and Métis Aboriginal peoples of Canada, and situates those rights outside the Canadian Charter of Rights and Freedoms with its section 1 limitation clause.  The absence of terms defining the rights placed the task of interpreting the scope of section 35 squarely in the judicial sphere.

Judicial Interpretation: Aboriginal Rights

Aboriginal rights cases considered by the Supreme Court of Canada establish and apply general principles, while stressing that the outcome in such cases depends on findings of fact specific to each. To date, their factual underpinning has frequently involved claims to various harvesting rights in the context of penal charges under provincial regulations. It has been suggested that penal proceedings may not be the most appropriate context for litigating constitutional Aboriginal or treaty rights.

The Sparrow Fishing Rights Decision

In 1990, the Court’s landmark Sparrow decision articulated an initial interpretive framework for section 35 that has been refined in a number of the Court’s subsequent judgments.  Sparrow established that:  the term “existing” refers to rights that are “unextinguished,” or extant; section 35 rights may limit the application of federal and provincial law to Aboriginal peoples, but are not immune from regulation; the Crown must justify any proven legislative infringement of an existing Aboriginal right.

Under the Sparrow justification test, the Crown must prove that any infringing measures serve a “valid legislative objective” – such as natural resource conservation – and that they are in keeping with the special trust relationship and responsibility of the government vis-à-vis Aboriginal peoples, that is, with the honour of the Crown.  Further questions to be addressed, depending on the circumstances, include whether the infringement has been minimal, whether fair compensation has been available in a context of expropriation, and whether the affected Aboriginal group has been consulted.

Other Fishing Rights Cases

Several 1996 rulings supplemented the Sparrow guidelines.  In the commercial fishing rights trilogy Van der Peet, Gladstone and Smokehouse, a majority of the Court defined Aboriginal rights as flowing from practices, traditions and customs central to Aboriginal societies prior to contact with Europeans. Such practices and traditions must – even if evolved into modern form – have been integral to the distinctive Aboriginal culture at issue.  Dissenting justices and others viewed this approach as unduly narrow, and as establishing a heavy burden of proof for Aboriginal claimants to meet.  The trilogy confirmed that Aboriginal rights protected by the Constitution are no longer subject to legislative extinguishment as they had been prior to 1982, but only to regulation or infringement under the Sparrow justification test. It also established that the constitutionalization of Aboriginal rights was intended to reconcile the prior occupation of North America by Aboriginal peoples with the assertion of Crown sovereignty over Canadian territory.

In the Côté and Adams decisions, section 35 protection of Aboriginal rights was held not to be conditional on Aboriginal title, or on post-contact recognition of those rights by colonial powers.  The Nikal ruling established that while a simple licensing requirement by itself will not normally infringe an Aboriginal right to fish, the conditions of a licence may do so. 

Self-Government

In Pamajewon, a 1996 case raising self-government issues in relation to high-stakes gambling on-reserve, the Court ruled that, assuming section 35 covers self-government claims, they are subject to the same analytical framework as other Aboriginal rights claims.  Furthermore, in Aboriginal rights cases the right claimed, including that of self-government, must not be framed in overly broad terms that would prevent the courts from considering it with sufficient “specificity.”

The Court has yet to consider a case that squarely raises the nature and scope of self-government rights under section 35.  Statements in other Aboriginal rights cases are open to interpretation as implicitly acknowledging the self-governing capacity of Aboriginal people pre-contact or pre-Crown sovereignty.

Aboriginal Title

In December 1997, the Court’s groundbreaking Aboriginal title ruling in Delgamuukw outlined principles applicable to this category of Aboriginal rights claim.  Although the decision did not resolve the merits of the case before the Court, Delgamuukw confirmed that common law Aboriginal title had been fully constitutionalized by section 35. It distinguished Aboriginal title from other Aboriginal rights based on the connection it represents between an Aboriginal group and land, an aspect viewed as pivotal in determining the scope of Aboriginal rights.  These were described as falling along a spectrum, with Aboriginal title representing the broadest entitlement because it confers a right to the land itself.

Having defined criteria for proving Aboriginal title (relatively exclusive occupation prior to Crown sovereignty that has been relatively continuous to the present), the Court outlined a justification test for infringements of Aboriginal title based on general principles established in its previous section 35 decisions.  Under this test,

  • the range of legislative objectives capable of justifying infringements of Aboriginal title is fairly broad;
  • the nature of the government’s fiduciary duty is determined by the nature of title:
    • the fact that Aboriginal title encompasses the right to exclusive use and occupation of the land affects the degree of scrutiny of the infringement;
    • the fact that it also encompasses the right to choose how the land is used influences the nature and scope of the Crown’s obligation to consult the Aboriginal group(s) concerned:  that obligation will most often require more than “mere” consultation, and may involve full consent in some circumstances; and
    • the fact that title has an economic component affects the amount of compensation due.

Delgamuukw also confirms that courts are required to adapt rules of evidence when adjudicating Aboriginal rights so as to accommodate the oral histories of Aboriginal societies, which may provide the only record of their past.  The Court has yet to rule on the merits of a specific Aboriginal title claim.

Cross-Border Trade

In the 2001 Mitchell decision, the Court concluded that the evidence adduced was insufficient to sustain the assertion of an Aboriginal right to transport goods across the border for trade purposes.  It clarified that, notwithstanding the accommodation mandated by the distinctive nature of Aboriginal claims, general rules of evidence continue to apply. Evidence in support of such claims should neither be undervalued, nor interpreted so as to unduly amplify its persuasiveness.

Métis Aboriginal Rights

From 1990 through 2002, the Court’s section 35 decisions were concerned with the Aboriginal rights of “Indian” or First Nations people.  In September 2003, the Court issued its first section 35 ruling on the Aboriginal rights of the Métis people.  The Powley decision defined features specific to the application of section 35 to Métis claims within the basic framework of the test developed in ealier fishing rights cases.

The Court found that, while inclusion of First Nations and Inuit people in section 35 is linked to their pre-contact occupation, inclusion of the Métis acknowledges their distinct, post-contact, cultures, whose survival depends on providing the Métis constitutional protection.  As for the applicable timeframe for assessing Métis claims, the Court ruled that section 35 protection extends to those customs and traditions of a given Métis community that were significant before effective European control was established, and that are still central to the community’s culture.

Under Powley, evaluation of Métis claims turns on the distinct context at issue and, in particular, on issues of identification.  Courts must identify the “rights-bearing” Métis community, both historic and present-day, and confirm that the claimant in fact has ancestrally based membership in the present-day community.  The Court cautioned that requirements for membership in Métis communities must become more uniform if those entitled to claim Aboriginal rights as Métis are to be accurately identified.  It acknowledged that for the present, courts will have to determine Métis identity for section 35 purposes on a case-by-case basis.  Although not purporting to provide a comprehensive definition of who is Métis, the Court indicated that three broad indicators of that identity are self-identification, ancestral connection, and community acceptance.

Judicial Interpretation: Duty to Consult

The Court’s November 2004 Haida Nation and Taku River decisions further clarified the consultation process that is required in the context of possible infringements of section 35 rights in order to maintain the honour of the Crown and reconcile Aboriginal and Crown interests.  Thus, although not Aboriginal rights rulings per se, they are significant for the future of Aboriginal rights claims and jurisprudence. 

The Court ruled that the federal and/or provincial Crown is under a legal obligation to consult affected First Nations communities, not only when a claimed right is proved, but also when it has “knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it.”  Furthermore, this legal duty may, “if appropriate,” also involve accommodating the concerns of Aboriginal groups.  The scope of the duty to consult and the degree of accommodation that may be required will vary with the circumstances of individual cases, in relation to both the merits of the claim and the severity of the potential or anticipated infringement.  The Court specified that the legal duty to consult does not require that the parties agree on accommodation, or give Aboriginal groups a veto over land development or use pending final proof of a given claim.  In its November 2005 Mikisew Cree decision, the Court considered Haida Nation principles in assessing the scope of the duty to consult and accommodate in a case involving existing treaty rights under Treaty 8.

Judicial Interpretation: Treaty Rights

Under section 35, treaty rights include those in present and future modern land claims agreements. The Supreme Court of Canada’s relatively few section 35 treaty rights decisions to date interpret the scope and modern status of hunting, fishing and other harvesting rights provisions in historic land-related or “peace and friendship” treaties.  These questions may arise, as in Aboriginal rights cases, in relation to penal charges under provincial legislation prohibiting hunting, fishing or logging activities. And, as in Aboriginal rights cases, the Court has emphasized the importance, in deciding section 35 treaty rights cases, not only of respecting general interpretive principles, but also of a contextual, case-by-case approach.

In its 1996 and 1999 hunting rights decisions in Badger and Sundown, the Court reviewed applicable principles of treaty interpretation under which:

  • treaties are sacred agreements in which exchanges of solemn promises are made and mutually binding obligations created;

  • because the honour of the Crown is always at stake in its dealings with Aboriginal peoples, treaty interpretation having an impact on treaty rights must be approached so as to maintain the Crown’s integrity, based on the assumption that the Crown intends to fulfil its promises;

  • textual ambiguities are to be resolved in favour of Aboriginal peoples, and restrictions of treaty rights narrowly construed, while the Crown bears the burden of strict proof that a treaty right has been extinguished based on evidence of a clear government intention to do so;

  • although treaty rights, like Aboriginal rights, are not absolute, it is equally if not more important to justify prima facie infringements of treaty rights, in most cases under the test developed by the Court in relation to infringement of Aboriginal rights discussed above;

  • treaty rights are specific and may be exercised only by the First Nation(s) that signed the treaty in question.

Fishing and Hunting Rights

In the Court’s 1999 Marshall ruling concerning an 18th-century peace and friendship treaty, the application of these interpretive principles and factual considerations resulted in confirmation that Mi’kmaq and Maliseet First Nations communities in the Atlantic provinces and Quebec had unextinguished treaty rights to fish for a “moderate livelihood.”  Controversy as to how, by whom and to what extent these rights might be exercised ensued. In the 2006 Morris decision, the Court found that BC wildlife legislation containing an absolute prohibition of night hunting using illuminating devices was overbroad and infringed the appellants’ treaty right to hunt using traditional hunting practices.

Logging Rights

In 2005, the Court determined, in the Marshall and Bernard ruling, that the trading clause in similar treaties did not give modern Mi’kmaq the right to engage in commercial logging on Crown lands, such activity not having evolved from a traditional Mi’kmaq trading activity at the time of treaty.  Nor did the evidence support Aboriginal title to the sites logged.

The 2006 Sappier and Gray ruling upholding the claimants’ Aboriginal right to harvest wood for domestic use on Crown lands stipulated that the exercise of the right was limited to lands traditionally used by their respective Maliseet and Mi’kmaq communities and had no commercial dimension. The Court ruled that the practice of harvesting wood, even if for survival, related directly to the pre-contact culture of the harvesters, thus meeting the “integral to a distinctive culture” test set out in Van der Peet.

Unfinished Business

Judicial interpretation of section 35 is still in its relative infancy. Numerous questions as to the scope of “existing Aboriginal and treaty rights” remain to be resolved. Issues relating to Aboriginal title, to governments’ duty to consult Aboriginal people and authority to regulate the exercise of treaty rights, to the inherent right of self-government, and other matters of fundamental concern to Aboriginal peoples, come before Canadian courts with regularity.

The question of how expansive section 35 protection must be in order to foster a just settlement for Canada’s Aboriginal peoples remains a subject for debate. Some take the view that a broad approach may lead to inequality of treatment among Canadians, or other consequences perceived as negative from a public policy perspective. Others are concerned that a narrow approach by government or the judiciary risks stripping the constitutionalization of Aboriginal rights of substantive effect. These issues are likely to continue to be raised in the political and judicial spheres for some time to come.


Prepared by
Mary C. Hurley, Analyst
Parliamentary Information and Research Service

Selected References

Parliamentary Information and Research Service

Hurley, Mary C. 

Nixon, Alan. The Marshall Decision and the Aboriginal Fishery.  TIPS-63E.  Parliamentary Information and Research Service, Library of Parliament, Ottawa, September 2001.

Reports

Royal Commission on Aboriginal Peoples.  Report of the Royal Commission on Aboriginal Peoples (RCAP Publications). Volume 1, Looking Forward, Looking Back, Chapter 7, “Stage Four: Negotiation and Renewal,” (PDF) Section 2, “The Role of the Courts;”  Volume 2, Restructuring the Relationship, Part One, Chapter 2: “Treaties” (PDF). Ottawa: Minister of Supply and Services Canada, 1996.  (paper version: J103 P1 1991 A26 A12).

Texts

Aboriginal Rights Litigation.  Ed.  Dwight Dorey and Joseph Magnet. Markham, Ontario:  LexisNexis Butterworths, 2003 (KE7709 A767) (Table of Contents-PDF).

Henderson, James Youngblood. First Nations Jurisprudence and Aboriginal Rights: Defining the Just Society. Saskatoon: University of Saskatchewan Native Law Centre, 2006 (KE7709 H46).

Isaac, Thomas. Aboriginal and treaty rights in the Maritimes : the Marshall decision and beyond.  Saskatoon : Purich Pub., 2001 (KE7709 I83A) (Table of Contents-PDF).

Let Right Be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights. Ed. Hamar Foster et al. Vancouver: UBC Press, 2007 (E78C2 L48 2007).

Mainville, Robert.  An Overview of Aboriginal and Treaty Rights and Compensation for Their Breach.  Saskatoon: Purich Publishing Ltd., 2001 (KE7709 M35).

White, Jerry P., Paul Maxim and Nicholas Spence.  Permission to Develop: Aboriginal Treaties, Case Law and Regulations.  Toronto.  Thompson Educational Publishing Inc., 2004.

Articles

Related Links

Federal Government

Department of Indian Affairs and Northern Development

British Columbia Government

Ministry of Aboriginal Relations and Reconciliation:  B.C. Treaty Negotiations

Treaty Body

British Columbia Treaty Commission

Aboriginal Sources

Assembly of First Nations 


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