Transcript CONSTITUTIONAL LAW 1 What is the Constitution?

CONSTITUTIONAL
LAW
21 ABORIGINAL PEOPLE:
ABORGINAL RIGHTS
Shigenori Matsui
1
INTRODUCTION
 What is the aboriginal right?
 Is it absolute right or could it be restricted by
the government?
 What is the aboriginal title and treaty right?
2
I CONSTITUTIONAL ENTRENCHMENT
OF ABORIGINAL RIGHTS
 R. v. Sparrow, [1990]
3
 The word "existing" makes it clear that the
rights to which s. 35(1) applies are those that
were in existence when the Constitution Act,
1982 came into effect. This means that
extinguished rights are not revived…
 Further, an existing aboriginal right cannot be
read so as to incorporate the specific manner
in which it was regulated before 1982. The
notion of freezing existing rights would
incorporate into the Constitution a crazy
patchwork of regulations
4
 The test of extinguishment to be adopted, in
our opinion, is that the Sovereign's intention
must be clear and plain if it is to extinguish an
aboriginal right.
 There is nothing in the Fisheries Act or its
detailed regulations that demonstrates a clear
and plain intention to extinguish the Indian
aboriginal right to fish.
 We would conclude then that the Crown has
failed to discharge its burden of proving
extinguishment.
5
 The British Columbia Court of Appeal in this case held that the
aboriginal right was to fish for food purposes, but that purpose
was not to be confined to mere subsistence. Rather, the right
was found to extend to fish consumed for social and ceremonial
activities…it was contended before this Court that the aboriginal
right extends to commercial fishing. In the courts below, the
case at bar was not presented on the footing of an aboriginal
right to fish for commercial or livelihood purposes. Rather, the
focus was and continues to be on the validity of a net length
restriction affecting the appellant's food fishing licence. We
therefore adopt the Court of Appeal's characterization of the
right for the purpose of this appeal, and confine our reasons to
the meaning of the constitutional recognition and affirmation of
the existing aboriginal right to fish for food and social and
ceremonial purposes.
6
 In response to the appellant's submission that s.
35(1) rights are more securely protected than the
rights guaranteed by the Charter, it is true that s.
35(1) is not subject to s. 1 of the Charter. In our
opinion, this does not mean that any law or regulation
affecting aboriginal rights will automatically be of no
force or effect by the operation of s. 52 of the
Constitution Act, 1982. Legislation that affects the
exercise of aboriginal rights will nonetheless be valid,
if it meets the test for justifying an interference with a
right recognized and affirmed under s. 35(1).
7
 There is no explicit language in the provision
that authorizes this Court or any court to
assess the legitimacy of any government
legislation that restricts aboriginal rights. Yet,
we find that the words "recognition and
affirmation" incorporate the fiduciary
relationship referred to earlier and so import
some restraint on the exercise of sovereign
power. Rights that are recognized and
affirmed are not absolute.
8
 Section 35(1) suggests that while regulation affecting
aboriginal rights is not precluded, such regulation
must be enacted according to a valid objective…
Implicit in this constitutional scheme is the obligation
of the legislature to satisfy the test of justification. The
way in which a legislative objective is to be attained
must uphold the honour of the Crown and must be in
keeping with the unique contemporary relationship,
grounded in history and policy, between the Crown
and Canada's aboriginal peoples. The extent of
legislative or regulatory impact on an existing
aboriginal right may be scrutinized so as to ensure
recognition and affirmation.
9
 The first question to be asked is whether the
legislation in question has the effect of interfering with
an existing aboriginal right. If it does have such an
effect, it represents a prima facie infringement of s.
35(1). To determine whether the fishing rights have
been interfered with such as to constitute a prima
facie infringement of s. 35(1), certain questions must
be asked. First, is the limitation unreasonable?
Second, does the regulation impose undue hardship?
Third, does the regulation deny to the holders of the
right their preferred means of exercising that right?
The onus of proving a prima facie infringement lies
on the individual or group challenging the legislation.
10
 If a prima facie interference is found, the
analysis moves to the issue of justification.
This is the test that addresses the question of
what constitutes legitimate regulation of a
constitutional aboriginal right. The justification
analysis would proceed as follows. First, is
there a valid legislative objective?
11
 If a valid legislative objective is found, the analysis
proceeds to the second part of the justification issue.
Here, we refer back to the guiding interpretive
principle … the honour of the Crown is at stake in
dealings with aboriginal peoples. The special trust
relationship and the responsibility of the government
vis-à-vis aboriginals must be the first consideration in
determining whether the legislation or action in
question can be justified.
12
 The constitutional entitlement embodied in s. 35(1)
requires the Crown to ensure that its regulations are
in keeping with that allocation of priority.
 Within the analysis of justification, there are further
questions to be addressed, depending on the
circumstances of the inquiry. These include the
questions of whether there has been as little
infringement as possible in order to effect the desired
result; whether, in a situation of expropriation, fair
compensation is available; and, whether the
aboriginal group in question has been consulted with
respect to the conservation measures being
implemented.
13
 How could the court decide whether there
was an aboriginal right?
 Is the framework established by Sparrow
adequate?
14
 R. v. Van der Peet, [1996]
15
“In my view, the doctrine of aboriginal rights exists, and
is recognized and affirmed by s. 35(1), because of
one simple fact: when Europeans arrived in North
America, aboriginal peoples were already here, living
in communities on the land, and participating in
distinctive cultures, as they had done for centuries. It
is this fact, and this fact above all others, which
separates aboriginal peoples from all other minority
groups in Canadian society and which mandates their
special legal, and now constitutional, status.”
16
“More specifically, what s. 35(1) does is provide the
constitutional framework through which the fact that
aboriginals lived on the land in distinctive societies,
with their own practices, traditions and cultures, is
acknowledged and reconciled with the sovereignty of
the Crown. The substantive rights which fall within
the provision must be defined in light of this purpose;
the aboriginal rights recognized and affirmed by s.
35(1) must be directed towards the reconciliation of
the pre-existence of aboriginal societies with the
sovereignty of the Crown.”
17
 “In light of the suggestion of Sparrow, supra,
and the purposes underlying s. 35(1), the
following test should be used to identify
whether an applicant has established an
aboriginal right protected by s. 35(1): in order
to be an aboriginal right an activity must be
an element of a practice, custom or tradition
integral to the distinctive culture of the
aboriginal group claiming the right.”
18
 Factors to be Considered in Application of the Integral to a
Distinctive Culture Test
 1 Courts must take into account the perspective of aboriginal
peoples themselves
 2 Courts must identify precisely the nature of the claim being
made in determining whether an aboriginal claimant has
demonstrated the existence of an aboriginal right
 3 In order to be integral a practice, custom or tradition must
be of central significance to the aboriginal society in question
 4 The practices, customs and traditions which constitute
aboriginal rights are those which have continuity with the
practices, customs and traditions that existed prior to contact
 5 Courts must approach the rules of evidence in light of the
evidentiary difficulties inherent in adjudicating aboriginal
claims
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6 Claims to aboriginal rights must be adjudicated on a
specific rather than general basis
7 For a practice, custom or tradition to constitute an
aboriginal right it must be of independent significance
to the aboriginal culture in which it exists
8 The integral to a distinctive culture test requires that
a practice, custom or tradition be distinctive; it does not
require that that practice, custom or tradition be distinct
9 The influence of European culture will only be
relevant to the inquiry if it is demonstrated that the
practice, custom or tradition is only integral because of
that influence.
10 Courts must take into account both the relationship
of aboriginal peoples to the land and the distinctive
societies and cultures of aboriginal peoples
20
II FRAMEWORK OF ANALYSIS
 Existing aboriginal right
 R v. NTC Smokehouse [1996]
21
 R. v. Gladstone, [1996]
22
 R v. Sappier [2006]
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 Extinguishment
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 Prima facie infringement
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 Justification
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III ABORIGINAL TITLE
 What is the nature of aboriginal title?
 Guerin v. The Queen [1984]
27
 R v. Adams [1996]
28
 “…the fundamental question to be answered in this
case is as to whether a claim to an aboriginal right to
fish must rest in a claim to aboriginal title to the area
in which the fishing took place. In other words, this
Court must determine whether aboriginal rights are
inherently based in aboriginal title to the land, or
whether claims to title to the land are simply one
manifestation of a broader-based conception of
aboriginal rights. The reasons of this Court in Van der
Peet demonstrate that it is the latter characterization
of the relationship between aboriginal rights and
aboriginal title that is correct.”
29
 “What this test, along with the conceptual basis which
underlies it, indicates, is that while claims to
aboriginal title fall within the conceptual framework of
aboriginal rights, aboriginal rights do not exist solely
where a claim to aboriginal title has been made out.
Where an aboriginal group has shown that a
particular practice, custom or tradition taking place on
the land was integral to the distinctive culture of that
group then, even if they have not shown that their
occupation and use of the land was sufficient to
support a claim of title to the land, they will have
demonstrated that they have an aboriginal right to
engage in that practice, custom or tradition. ”
30
 Delgamuukw v. British Columbia, [1997]
31
 “Aboriginal title is a right in land and, as such, is more than
the right to engage in specific activities which may be
themselves aboriginal rights. Rather, it confers the right to
use land for a variety of activities, not all of which need be
aspects of practices, customs and traditions which are
integral to the distinctive cultures of aboriginal societies.
Those activities do not constitute the right per se; rather,
they are parasitic on the underlying title. However, that
range of uses is subject to the limitation that they must not
be irreconcilable with the nature of the attachment to the
land which forms the basis of the particular group's
aboriginal title. This inherent limit… flows from the
definition of aboriginal title as a sui generis interest in land,
and is one way in which aboriginal title is distinct from a
fee simple.”
32
 The idea that aboriginal title is sui generis is the
unifying principle underlying the various dimensions
of that title. One dimension is its inalienability.
 Another dimension of aboriginal title is its source. It
had originally been thought that the source of
aboriginal title in Canada was the Royal
Proclamation, 1763... However, it is now clear that
although aboriginal title was recognized by the
Proclamation, it arises from the prior occupation of
Canada by aboriginal peoples.
 A further dimension of aboriginal title is the fact that it
is held communally. Aboriginal title cannot be held by
individual aboriginal persons; it is a collective right to
land held by all members of an aboriginal nation.
33
 “…the content of aboriginal title can be
summarized by two propositions: first, that
aboriginal title encompasses the right to
exclusive use and occupation of the land held
pursuant to that title for a variety of purposes,
which need not be aspects of those aboriginal
practices, customs and traditions which are
integral to distinctive aboriginal cultures; and
second, that those protected uses must not
be irreconcilable with the nature of the
group's attachment to that land.”
34
 Aboriginal title at common law is protected in
its full form by s. 35(1). This conclusion flows
from the express language of s. 35(1) itself..
The provision, at the very least,
constitutionalized those rights which
aboriginal peoples possessed at common
law, since those rights existed at the time s.
35(1) came into force. Since aboriginal title
was a common law right whose existence
was recognized well before 1982…, s. 35(1)
has constitutionalized it in its full form.
35
 The acknowledgement that s. 35(1) has accorded
constitutional status to common law aboriginal title
raises a further question - the relationship of
aboriginal title to the "aboriginal rights" protected by
s. 35(1). … aboriginal title is "simply one
manifestation of a broader-based conception of
aboriginal rights". Thus, although aboriginal title is a
species of aboriginal right recognized and affirmed by
s. 35(1), it is distinct from other aboriginal rights
because it arises where the connection of a group
with a piece of land "was of a central significance to
their distinctive culture."
36
 This difference between aboriginal rights to engage in
particular activities and aboriginal title requires that
the test I laid down in Van der Peet be adapted
accordingly.
 In order to make out a claim for aboriginal title, the
aboriginal group asserting title must satisfy the
following criteria: (i) the land must have been
occupied prior to sovereignty, (ii) if present
occupation is relied on as proof of occupation presovereignty, there must be a continuity between
present and pre-sovereignty occupation, and (iii) at
sovereignty, that occupation must have been
exclusive.
37
 The general principles governing justification laid down in
Sparrow, and embellished by Gladstone, operate with respect to
infringements of aboriginal title. In the wake of Gladstone, the
range of legislative objectives that can justify the infringement of
aboriginal title is fairly broad. Most of these objectives can be
traced to the reconciliation of the prior occupation of North
America by aboriginal peoples with the assertion of Crown
sovereignty.. In my opinion, the development of agriculture,
forestry, mining, and hydroelectric power, the general economic
development of the interior of British Columbia, protection of the
environment or endangered species, the building of
infrastructure and the settlement of foreign populations to
support those aims, are the kinds of objectives that are
consistent with this purpose and, in principle, can justify the
infringement of aboriginal title.
38
 The manner in which the fiduciary duty operates with
respect to the second stage of the justification test -both with respect to the standard of scrutiny and the
particular form that the fiduciary duty will take -- will
be a function of the nature of aboriginal title. Three
aspects of aboriginal title are relevant here. First,
aboriginal title encompasses the right to exclusive
use and occupation of land; second, aboriginal title
encompasses the right to choose to what uses land
can be put, subject to the ultimate limit that those
uses cannot destroy the ability of the land to sustain
future generations of aboriginal peoples; and third,
that lands held pursuant to aboriginal title have an
inescapable economic component.
39
 How could the court find the aboriginal title?
 R v. Marshall [2005]
40
IV ABORIGINAL TREATY
RIGHTS
 What are the aboriginal treaty rights?
41
 R. v. Marshall, [1999]
42
 The Court of Appeal took a strict approach to
the use of extrinsic evidence when
interpreting the Treaties of 1760-61. … I think
this approach should be rejected for at least
three reasons.

Firstly, even in a modern commercial context,
extrinsic evidence is available to show that a
written document does not include all of the
terms of an agreement.
43
 Secondly, even in the context of a treaty document
that purports to contain all of the terms, this Court
has made clear in recent cases that extrinsic
evidence of the historical and cultural context of a
treaty may be received even absent any ambiguity on
the face of the treaty.
 Thirdly, where a treaty was concluded verbally and
afterwards written up by representatives of the
Crown, it would be unconscionable for the Crown to
ignore the oral terms while relying on the written
terms…
44
 In the circumstances, the purported
regulatory prohibitions against fishing without
a licence …and of selling eels without a
licence…do prima facie infringe the
appellant's treaty rights under the Treaties of
1760-61 and are inoperative against the
appellant unless justified..
 Further, the appellant was charged with
fishing during the close season with improper
nets... Such a regulation is also a prima facie
infringement..
45
 The appellant caught and sold the eels to
support himself and his wife. Accordingly, the
close season and the imposition of a
discretionary licensing system would, if
enforced, interfere with the appellant's treaty
right to fish for trading purposes, and the ban
on sales would, if enforced, infringe his right
to trade for sustenance. In the absence of any
justification of the regulatory prohibitions, the
appellant is entitled to an acquittal.
46
 R v. Marshall [1999]
47
 R. v. Marshall II, [1999]
48
V DUTY TO CONSULT
 Delgamuukw and the fiduciary duty
 Duty of consultation
49
 Haida Nation v. British Columbia [2004]
50
 “The government's duty to consult with
Aboriginal peoples and accommodate their
interests is grounded in the honour of the
Crown.
 The historical roots of the principle of the
honour of the Crown suggest that it must be
understood generously in order to reflect the
underlying realities from which it stems.”
51
 I conclude that consultation and accommodation
before final claims resolution, while challenging, is
not impossible, and indeed is an essential corollary to
the honourable process of reconciliation that s. 35
demands.
 The content of the duty to consult and accommodate
varies with the circumstances. … In general terms,
however, it may be asserted that the scope of the
duty is proportionate to a preliminary assessment of
the strength of the case supporting the existence of
the right or title, and to the seriousness of the
potentially adverse effect upon the right or title
claimed.
52
 Taku River Tlingit First Nation v. British
Columbia [2004]
 Miskisew Cree First Nation v. Canada [2005]
53
VI Métis Right
 Status of Métis
54
 R v. Powley [2003]
55
 Because the Métis are explicitly included in s. 35, it is
only necessary for our purposes to verify that the
claimants belong to an identifiable Métis community
with a sufficient degree of continuity and stability to
support a site-specific aboriginal right.
 … we uphold the basic elements of the Van der Peet
test… and apply these to the respondents' claim.
However, we modify certain elements of the precontact test to reflect the distinctive history and postcontact ethnogenesis of the Métis, and the resulting
differences between Indian claims and Métis claims.
56
 We accept Van der Peet as the template for this
discussion. However, we modify the pre-contact
focus of the Van der Peet test when the claimants are
Métis to account for the important differences
between Indian and Métis claims. Section 35 requires
that we recognize and protect those customs and
traditions that were historically important features of
Métis communities prior to the time of effective
European control, and that persist in the present day.
..
57