Land: Inherent to
Indigenous Sovereignty
The Crown must honour their solemn promises
Robin Vernest
12/11/2014
Table of Contents
Introduction .................................................................................................................................................. 3
Sovereignty ................................................................................................................................................... 5
Inherent .................................................................................................................................................... 5
Affirmed .................................................................................................................................................... 6
Self Government ....................................................................................................................................... 6
Land ............................................................................................................................................................... 7
Encroachment ............................................................................................................................................... 8
Treaties ..................................................................................................................................................... 8
Royal Proclamation ................................................................................................................................... 9
Canada ........................................................................................................................................................ 11
British North America Act ....................................................................................................................... 11
Gradual Civilization Act ........................................................................................................................... 11
Indian Act ................................................................................................................................................ 13
The White Paper ..................................................................................................................................... 15
The Constitution...................................................................................................................................... 15
Role of the Supreme Court ......................................................................................................................... 16
Calder ...................................................................................................................................................... 17
Guerin ..................................................................................................................................................... 18
Sparrow ................................................................................................................................................... 19
Pamajewon ............................................................................................................................................. 19
Delgamuukw ........................................................................................................................................... 20
Parliament Reaction.................................................................................................................................... 20
Territorial jurisdiction ............................................................................................................................. 21
Crisis Zone ............................................................................................................................................... 21
Tsilhqot’in ................................................................................................................................................... 23
Conclusion ................................................................................................................................................... 23
Bibliography ................................................................................................................................................ 26
2
Introduction
Since the European conquest of North America, there has been a concerted effort made to
assimilate Indigenous peoples into European-Canadian society. The aim behind this process of
assimilation was removal and relocation of Indigenous peoples from their ancestral lands to
make way for a tide of European settlement in the British colony now known as Canada. Treaty
agreements were signed between sovereign nations to facilitate European settlement. However,
while the Indigenous leaders viewed these treaty agreements as mutually beneficial, the
colonizers considered them to be title transfers and a way to clear land in exchange for limited
Indigenous rights. Unfortunately, even the limited rights have not been upheld in these early,
and in more modern treaties. The colonizers and now the Canadian Crown, continue to
undermine the sovereignty of the First Peoples of North America in an effort to take and retain
control over land.
Assimilation was considered the most effective method to control both the land and its
Indigenous inhabitants. As the colonizer population began to grow, their legislative assimilation
techniques increased in intensity in an effort to speed up the assimilation process and repress
Indigenous peoples to the margins of society. As an example, the Indian Act 1 confined
Indigenous peoples to tiny, scattered pieces of the most inhospitable land and controlled all
aspects of their life and governance. Another assimilation technique, Indian Residential School,
was designed to “take the Indian out of the child” 2 and have been particularly devastating to
generations of Indigenous peoples. While worth noting there have been, and continue to be,
numerous attacks to Indigenous sovereignty that are beyond the scope of this paper. Instead, I
will be focusing on Indigenous peoples’ displacement from traditional territories and their efforts
to regain inherent sovereignty to land which is so integral to Indigenous identity.
1
2
Indian Act, RSC 1985, c I-5 [IA].
Quote from Duncan Campbell Scott in his role of Deputy Superintendent of the Department of Indian Affairs.
3
Indigenous people have not been passive bystanders in this Eurocentric assimilation project;
they are resisting, fighting back and have had some successes. Since the 1970s Indigenous
peoples and groups have won substantial legal battles against the Crown. However, the
unwillingness of both the provincial and federal governments to implement and effect the
decisions of the Supreme Court of Canada (SCC) is a serious concern. The Crown’s
unwillingness to implement the decisions of Canada’s highest court may stem from “the
proposition…that after conquest or discovery the native people have no rights at all except
those subsequently granted or recognized by the conqueror or discoverer” as stated in the
Calder dissent by Justices Hall, Spence and Laskin. The Justices also commented that this
proposition “… was wholly wrong”. 3 In other words, the Crown is unwilling to negotiate with
Indigenous people in an honourable way that reflects their nation to nation relationship.
The political and historic context is important for understanding the complexity of the
relationship between Indigenous peoples and the Crown as well as the subsequent legislated
assimilation and extinguishment techniques. In this paper I will provide an analysis of the
relationship between Indigenous peoples and their traditional territory through a non-exhaustive
review of Canadian laws and policies that have supported the colonial project of land theft and
regulation. I will also discuss the role of the court in relation to a number of Supreme Court of
Canada decisions. In this paper I argue that without a land base, Indigenous sovereignty can
not be asserted and Indigenous people will continue to live on the margins of Canadian society
without real ability to improve their own well being and the health of their communities.
The Indigenous peoples of Canada are comprised of many unique and distinct cultures however
they are often grouped under the labels of Aboriginal, First Nation or Indian. For the purposes of
this paper I will also be using these labels interchangeably, in reference to Indigenous peoples,
3
Calder v. British Columbia (AG) (1973) SCR 313 [Calder].
4
so as to properly reflect the language of the legislative policies and related research. The
umbrella term of “Aboriginal” is used in reference to the variety of First Nation, Inuit and Métis
groups in Canada.
Sovereignty
“Sovereignty is the natural right of all human beings to define, sustain and perpetuate their
identities as individuals, communities and nations”. 4
Inherent
Sovereignty was bestowed upon the Indigenous inhabitants of North America by the Creator.
Creation stories strengthen the commonly held belief that Indigenous peoples were placed on
the land first for a reason and so feel a special relationship to the land, as caretakers. In other
words, their sovereignty is inherent by their original occupancy of the land. This gift of
sovereignty from the Creator is viewed as a solemn contract that “can neither by given not taken
away, nor can its basic terms be negotiated”. 5 From time immemorial, Indigenous people have
taken responsibility for the protection of land and its resources in trust for future generations and
the benefit of all.
Indigenous culture is based on a spiritual philosophy and a holistic notion of
interconnectedness. Therefore the land is not a separate but integral part of Indigenous
identity. The elements of the earth, universe, animate and inanimate are all connected to the
people, plants and land. Through creation stories, Indigenous Elders established the ways, or
Laws, in which all living things should live to maintain order and sustainability. These Laws
ensured each person knew his or her role, relationship and responsibility to the land and all of
4
Report of the Royal Commission on Aboriginal People: Restructuring the Relationship vol 2 (Ottawa: Supply and
Services Canada, 1996) chapter 3 at 4 [RCAP ch3].
5
Ibid at 5.
5
its current and future inhabitants. Since Indigenous identity is derived largely from the land,
they continue to assert their right to maintain their relationship to the land and their role as
caretakers.
Affirmed
When Europeans first arrived in North America, they were considered visitors but, in
accordance with the Indigenous view as caretakers of the land, Europeans were permitted to
share in the land and its resources. 6 While Indigenous sovereignty is inherent, it was also
acknowledged by other nations as evidenced by the extensive diplomatic relations with
European powers. 7 The Royal Proclamation of 1763 recognized that there were self-governing
peoples living in the territory now known as Canada. 8 The legal relationships and treaties that
were subsequently formed with Indigenous groups demonstrate that “these nations were
sovereign peoples capable of conducting international relations”. 9 These early relationships
were premised on co-existence, reciprocal support and shared occupation of the territory.
Unfortunately, as more Europeans settled into North America, it became evident that their “coexistence” would be defined by the colonizers.
Self Government
Indigenous sovereignty is expressed through self-determination. Self-determining peoples have
the power to assess and satisfy their needs without outside influence, permission or
restriction 10. Self determination can take many forms and includes the practice of self
government. The Indigenous right to self governance is rooted in their occupation and
jurisdiction over the land prior to European contact.
6
The Justice System and Aboriginal People, online http://www.ajic.mb.ca/volumel/chapter5.html (Accessed
November 2014) [Justice System].
7
RCAP ch3 supra note 4 at 6.
8
Royal Proclamation of 1763, the Canadian Encyclopedia, online:
<http://www.thecanadianencyclopedia.com/articles/royal-proclamation-of-1763>.
9
RCAP ch3 supra note 4 at 6.
10
Ibid at 5.
6
Land
Land is of central importance to self determination and effective governance. First, traditional
lands are the location of the nation and are inseparable from the people, their culture, and their
identity as a nation. Second, land and resources, as well as traditional knowledge, are the
foundations upon which Indigenous people need to re-establish and to rebuild their nation’s
economies which will support the health and well-being of their people. 11 In 1996, the Royal
Commission on Aboriginal People (RCAP) concluded that Indigenous people need more lands
and resources than they have now because they will be unable to build their societies and
economies without an adequate land base. 12
The Indigenous philosophical approach to governance, based on respect for the land and the
need for responsible and sustainable activity, differs from European conceptions of governance
which emphasize domination and control. 13 Based on their traditional belief system, Indigenous
peoples could not have control over land but instead must show respect for it and the gifts it
offers. Indigenous’ relationship with the land has been altered fundamentally over the past
several centuries “by historical processes that have distorted and in some case severed these
relationships.” Some Indigenous people have no recognized land base of their own, for others
their land base is a small fraction of their traditional territories. Indigenous peoples have little say
in “decisions concerning the development of their territories and derive little benefit from such
development”. 14 This massive encroachment has had a profoundly negative effect on their
health and wellbeing.
11
Anderson, Robert. “Indigenous Peoples’ Land and Resource Rights”, Research paper for the National Centre for
First Nations Governance, May 2008 at 3 [Rights].
12
Report of the Royal Commission on Aboriginal People: Restructuring the Relationship vol 2 (Ottawa: Supply and
Services Canada, 1996) chapter 4 at 4 [RCAP ch4].
13
RCAP ch3 supra note 4 at 13.
14
Ibid at 14.
7
Encroachment
This encroachment on traditional Indigenous territory began with treaties; the early codification
of European land colonization.
Treaties
The 1725 Treaty was drafted by the British and therefore reflected their interests in the new
colony. The colonial power wanted to retain peaceful enjoyment of the land, to carry on their
trade and to be “in no ways Molested Interrupted, or disturbed therein”. 15 In the treaty, Britain
required Indigenous people to “hence forward hold & maintain a firm and Constant Amity and
Friendship with all the English and will never Confederate or Combine with any other Nation to
their prejudice”. 16 Essentially Britain wanted to codify their land interests, ensure the loyalty of
the Indigenous peoples and discourage Indigenous alliance with the French. This Treaty
alliance shifted the balance of power with the French in favour of the British.
The subsequent Peace and Friendship Treaties in 1752 and 1760-1 between the British and
Atlantic Indigenous peoples reaffirmed British colonial power and undermined French control in
the new colony. In the 1752 Treaty, the British stated that Indians “shall not be hindered from,
but have free liberty of Hunting and Fishing as usual”. 17 While these treaties provided the
illusion of an equal relationship based on mutual respect and peace, they have not been upheld.
Indigenous hunting and fishing rights were not protected and have had to be re-established
through lengthy and expensive court battles.
Treaty rights have been interpreted restrictively by the Crown, which asserts they were merely
“limited promises”. Through the treaty process, Europeans were exercising control over the land
15
Daniel Paul, “Treaty of 1725”, online: <http://www.danielnpaul.com/TreatyOf1725.html> (Accessed November
12, 2014).
16
Ibid.
17
“Treaty of 1752”, Cape Breton University, online: < http://www.cbu.ca/mrc/treaties/1752#.VGPmMRbtjc8>
(Accessed November 12, 2014).
8
to make it safe for their settlement and development. By negotiating treaties, the colonizers
sought to provide minimum benefits to the land’s original inhabitants in return for peace and
control of land. 18 Indigenous people considered the treaties, between sovereign nations, to be
agreements to share the land, while Europeans considered them to be transfers of title.
Indigenous people insist the Crown has failed to uphold these agreements and has broken their
honour. Although the promises have been broken, the treaties are still important today because
they represent unilateral agreements. Indigenous peoples are insisting the Crown respect the
intent behind the treaties instead of focusing on the terms. 19
Royal Proclamation
King George III issued a Royal Proclamation on October 7, 1763 after Britain won the Seven
Years War against the French. Britain required the support of Indigenous peoples to maintain
power however they also wanted to settle peacefully and without hindrance from inhabitants.
The Proclamation is a document that officially claims, and sets out guidelines for, the European
settlement of Indigenous territories in what is now North America. 20 The Proclamation
“established the constitutional framework for the negotiation of Indian treaties” 21 by explicitly
acknowledging the existence of Aboriginal title to the land. The Proclamation states that all land
belongs to Indigenous people and that only the Crown can buy the land. It forbade settlers from
claiming land from Indigenous occupants, unless it had been first purchased by the Crown. 22
The British government was “endeavouring to stabilize the western frontier” through this limited
recognition of Indigenous rights by promising a “degree of security as the sole authorized
18
Justice System supra note 6.
Ibid.
20
“Royal Proclamation, 1763”, The University of British Columbia, online:
http://indigenousfoundations.arts.ubc.ca/home/government-policy/royal-proclamation-1763.html (Accessed
November 12, 2014) [UBC].
21
Ibid.
22
Ibid.
19
9
inhabitants of the larger part of their ancestral lands”. 23 However, by only enabling Aboriginal
title conveyance to the Crown, the primacy of European law was entrenched. The Proclamation
was both a timely and strategic decision by the British, who were attempting to quell an
Indigenous rebellion. The British Empire had to appease the Indigenous groups because the
alternative was going to require “enormous expenses for the maintenance of law and order in
the North American interior”. 24
By laying claim to North America through the Royal Proclamation, Britain took ownership and
control over the land formally occupied and governed by Indigenous people. Some land was set
aside for Indigenous people but the title in these lands was less than fee simple, unalienable to
anyone but the Crown. The government has maintained that the land was surrendered to the
Crown, which it then “gave back” to Indigenous people. 25 Claiming land that was already
inhabited was not only wrong but considered theft in any other property context. 26 When there is
a theft the default position, in property law, is not one where “the wrongdoer gets to keep what
he stole”. 27 Providing the prize of land to the thieves “risks not only entrenching the position of
the wrongdoers...but also encourages more wrongdoing”. 28 Though the action of land theft
Indigenous rights, and their caretaker identities, were effectively marginalized. This
marginalization was further entrenched under the Constitution and its related legislation.
23
UBC supra note 20.
Ibid.
25
Justice System supra note 6.
26
Sanderson, Douglas, “Against Supression”, (2011) 24 Can JL & Juris 155 at 35 [Supression].
27
Ibid.
28
Ibid.
24
10
Canada
British North America Act
The Federal Dominion of Canada was created by the British North America (BNA) Act of
1867 29, the Constitution Act 30, which defined the operation of the Government of Canada,
including its federal structure. In the distribution of Legislative Powers under s. 91, the federal
government assumed responsibility for and authority over “Indians and lands reserved for the
Indians”. 31 Now, instead of negotiating with the British Colonial Office, Aboriginal treaties were
negotiated with representative of the new Canadian Government. The Canadian government
wanted to clear the west for anticipated European settlement and “sought to remove Aboriginals
from their land in large blocks and place them in smaller reserves in order to enfranchise them,
and eventually assimilate them into white society.” 32 Indigenous people were relocated and
segregated to the most inhospitable land reserves in an effort to further diminish their identity as
stewards of the land.
Gradual Civilization Act
The colonial government’s intention to enfranchise and assimilate Indigenous peoples was
evidenced in Acts such as the Act respecting Civilization and Enfranchisement of Certain
Indians 33 commonly known as the Gradual Civilization Act of 1857 34. The purpose of the Act is
clear;
“In order to encourage the progress of civilization among the Indian Tribes in this
Province, and the gradual removal of all legal distinctions between them and Her
Majesty’s other Canadian Subjects, and to facilitate the acquisition of property and of the
29
British North America Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 985, App II, No 5. s. 91 [BNA].
Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Constitution Act].
31
BNA supra note 29.
32
1867-1870: British North American Act, 1867 and Sale of Selkirk Treaty Lands (1869), Canada in the Making,
Aboriginals: Treaties & Relations, online:
<http://www.canadiana.ca/citm/themes/aboriginals/aboriginals6_e.html> (Accessed November 12, 2014).
33
An Act respecting Civilization and Enfranchisement of certain Indians SC 1859, c IX [Civilization Act].
34
An Act to encourage the gradual Civilization of the Indian Tribes in this Province, and to amend the Laws
respecting Indians, SC 1857, c XXVI.
30
11
rights accompanying it, by such Individual Members of the said Tribes as are found to
desire such encouragement and to have deserved it…” 35
The goal of this Act was to assimilate Indigenous people to facilitate the seizure and control of
land. The patriarchal European system only considered male rights to land although this was in
contrast to the matriarchal system of most Indigenous groups. By definition, the Gradual
Civilization Act was only interested in civilizing and enfranchising adult male Indians who had
rights to land. Enfranchisement was mandatory and once enfranchised, Indians were entitled to
“a piece of land not exceeding fifty acres out of the lands reserved or set apart for the use of his
tribe”. 36 Extracting parcels of land from the community reserve further undermined Aboriginal
title and sovereignty.
The Gradual Civilization Act was unsuccessful in part because the federal government was
“parcelling off” reserve land that was set aside for Indigenous peoples, essentially taking back
what had been given. Enfranchisement was met with strong opposition from the communities,
who naturally did not want to surrender their land. Enfranchisement also resulted in the loss of
community connection for the enfranchised, whom would often be ousted as a result, certainly
not much of an incentive. The evident failure of the enfranchisement policy “led the Indian affairs
department to campaign throughout the remaining pre-Confederation period for an end to the
independence of the Aboriginal governments that the Royal Proclamation of 1763 had
apparently promised to protect”. 37 Following confederation “drastic measures” were enacted
through the Indian Act.
35
Civilization Act supra note 33.
Ibid.
37
Report of the Royal Commission on Aboriginal Peoples: “The Imposition of a Colonial Relationship” in Looking
Forward, Looking Back, vol 1 (Ottawa; Supply and Services Canada, 1996) at 146 [Royal Commission].
36
12
Indian Act
The government of Canada began to enact legislation relating to Indian affairs in 1869. The
Indian Act 38, passed in 1876, is a federal law which consolidated and strengthened the colonial
legislation. As such, the Indian Act is a “highly invasive and paternalistic” statute; authorizing the
Canadian federal government to regulate the daily lives of registered Indians through
overarching political control. 39 Among other things, the Indian Act gave the Canadian
government the legal authority to replace traditional Indigenous forms of government with
elected Chiefs and Band Councils, with limited delegated powers 40.The imposed political and
administrative structures conflicted with Indigenous governance systems and values and
displaced the inherent wisdom of Indigenous elders.
When it came into effect, the Indian Act enabled the Federal Government to exercise
comprehensive control over every aspect of Indigenous life which included the forced removal
and placement of children in Indian Residential Schools. The Indian Act attempted to shape
Indigenous cultures by banning cultural rituals and practices such as Sun Dances and Pot
Latches. The Act managed land and economic resources, prohibited Indians from entering key
professions and banned alcohol possession. The control imposed through the Indian Act
resulted in Indigenous peoples having virtually no right to self-determination. It was not until the
mid-1950s that some of the regulations that governed Indigenous people began to be repealed
but the restrictive statute continues to impact and restrict Indigenous peoples today.
38
IA supra note 1.
UBC supra note 20.
40
MacNeil, Kent, “The Jurisdiction of Inherent Right Aboriginal Governments”, Research paper for the National
Centre for First Nations Governance, October 2007 at 13 [MacNeil].
39
13
Multiple provisions of the Indian Act assign “enormous power and discretion over Indian lands to
the Minister of Indian Affairs”. 41 The provisions dealing with land possession, improvements,
public lands etc are not subject to the approval or consent of the Chief and Council, “these
authorities are not mentioned”. 42 Section 35(1) of the Indian Act gives the Federal Government
authority to consent to the expropriation of reserve lands anywhere in Canada. 43 This is
consistent with the terms of the Act which state that reserve land is owned by the Her Majesty
(the Crown). 44 Many sections of the Act are indicative of the legacy of substantial control over
the fundamental features of economic life on reserves. Since a basic function of government is
the authority to allocate commonly held resources, the provisions with respect to controlling
reserve lands, undermine Band sovereignty. 45
While the Indian Act has been highly invasive and paternalistic, many Indigenous leaders argue
that it should be maintained. While this sounds counter intuitive, the main reason is that
“Indigenous people and communities fear the withdrawal of federal commitments, as was
proposed in the 1969 White Paper and as had been touted widely by the Reform Party and such
non-Aboriginal thinkers as Thomas Flanagan 46”. 47 There is considerable public sentiment in
favour of elimination of all Indigenous rights in Canada. So the belief is that, by maintaining the
Indian Act, the Federal Government’s legal and fiduciary responsibilities remain clear and
41
Abele, Frances, “Like an Ill-Fitting Boot: Government, Governance and Management Systems in the
Contemporary Indian Act”, Research paper for the National Centre for First Nations Governance, June 2007 at 14
[Abele].
42
Ibid at 15.
43
Ibid at 16.
44
IA supra note 1.
45
Abele supra note 41 at 16.
46
Thomas Flanagan, a long-time academic critic of Aboriginal rights and Indigenous self government, and was a
key advisor to Prime Minister Stephen Harper.
47
Coates, Ken. “The Indian Act and the Future of Aboriginal Governance in Canada”, Research paper for the
National Centre for First Nations Governance, May 2008 at 8 [Coates].
14
historical commitments are reinforced. 48 Also, the current Band government structure arises out
of the Indian Act so removing the Act abruptly could cause massive upheaval. Those who are in
favour of the Indian Act political system would like it to remain in place, at least until “wholesale
changes with appropriate legislative and constitutional guarantees are in place...” 49
The White Paper
By the 1960s the serious socio-economic barriers, poverty, high infant mortality rates, lower life
expectancy and low levels of education could no longer by ignored by the federal government.
In response to the growing crisis, Prime Minister Pierre Trudeau and his Minister of Indian
Affairs, Jean Chretien, unveiled the White Paper in 1969. 50 The policy paper proposed ending
the special legal relationship between Indigenous peoples and the Canadian government by
eliminating Indian status, abolishing the Indian Act and converting land to private property that
could be sold by the Bands or its members. 51 The federal government proposed transferring
responsibility for Indian affairs to the provinces. This policy paper was retracted after it was met
with “forceful opposition” from Indigenous leaders. 52 Indigenous nations responded with their
own document known as the Red Paper, in which they demanded that their treaty and inherent
rights be respected.
53
The Constitution
In the late 1970s, the patriation of the Canadian Constitution and the inclusion of the Charter of
Rights and Freedoms dominated the political agenda. 54 Indigenous leaders lobbied for
48
Coates supra note 47 at 8.
Ibid at 9.
50
“The White Paper 1969”, The University of British Columbia, online:
http://indigenousfoundations.arts.ubc.ca/home/government-policy/the-white-paper-1969.html
51
Ibid.
52
Ibid.
53
MacNeil supra note 40 at 15.
54
Ibid at 16.
49
15
constitutional recognition of Aboriginal and treaty rights which was accomplished by the
landmark acknowledgment and inclusion of s. 35(1) of the Constitution Act 55 which states;
RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA
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.
Role of the Supreme Court
Frustrated by the refusal of provincial governments to recognize their rights to land and
negotiate treaties to define those rights, Indigenous peoples turned to the courts. 56 The courts
have played an integral role in the ongoing efforts of Indigenous people to have their traditional
rights recognized. In particular, the Supreme Court of Canada (SCC) has further defined rights
and the need for provinces to resolve disputes through negation rather than expensive and
lengthy litigation. According to Law Times news, the department of Aboriginal Affairs and
Northern Development Canada was “at the top of the list of federal departmental spending on
legal fees” in 2013, spending $106 million to litigate First Nation issues. 57
In the 1970’s there was a colossal shift in judicial attitudes as evidenced by a declaration that
Aboriginal title to land was recognized by the common law. 58 In 1984, the SCC affirmed
55
Constitution Act supra note 30.
Information about Landmark Court Cases, Ministry of Aboriginal Affairs, online:
http://web.uvic.ca/clayoquot/files/volume2/V.B.1.pdf [Cases].
57
Law Times, “Feds pouring big money into aboriginal litigation”, online:
http://www.lawtimesnews.com/201311113587/headline-news/feds-pouring-big-money-into-aboriginal-litigation
58
Calder supra note 3.
56
16
Aboriginal title to land on the basis of pre contact. 59 The following year, the SCC held that it was
no longer acceptable to be bound by the biases and prejudices of another era, and that “treaties
and statutes relating to Indians should be liberally construed and doubtful expressions resolved
in favour of the Indians...” 60 These judgements are “clearly inconsistent with the traditionally
hostile judgements of the past” and go a long way to expand the importance of Indigenous and
treaty rights at law. 61
The role of the Supreme Court will be considered in light of several important cases which
strengthened Indigenous sovereignty and Aboriginal title.
Calder
In 1973 the legal assertion of Aboriginal land rights was initiated by the Nisga’a Nation in Calder
v Attorney-General of British Columbia. 62 For the first time 63, the Court decided that Aboriginal
title is a legal right to land that does not depend on the Royal Proclamation of 1763 but is rooted
in the “long-time occupation, possession and use” 64 of traditional territories. The Court held that
this right had not been extinguished unless it was specifically and knowingly surrendered. The
Calder decision marked a dramatic shift away and established the fundamental principle of
Aboriginal rights in Canadian law, which led to an immediate change in federal policy. 65 Soon
after the decision the federal government created the comprehensive land claims policy to use
in negotiation with Aboriginal title claims.
59
Guerin v. The Queen, [1984] 2 SCR 335 [Guerin].
R v Simon, [1985] 2 SCR 387.
61
Justice System supra note 6.
62
Calder supra note 3.
63
MacNeil supra note 40 at 16.
64
Calder supra note 3.
65
Cases supra note 56.
60
17
The concepts of “Aboriginal title” and “negotiation structure” are both complex, interrelated and
have been key developments in the creation of a legal framework in Canada. 66 Modern day
treaties are developed through a process of land claim negotiations which address concerns
raised by Indigenous people, governments and third party interests. These negotiations can
also result in self government arrangements. In 1973, the Comprehensive Claims Policy was
modified to take into consideration section 35 of the Constitution Act, thereby giving
comprehensive claims agreements constitutional protection. 67 The negotiation framework also
meets the terms and conditions for the recognition of Indigenous land and resource rights as
listed in such international agreements such as the UN Declaration on the Rights of Indigenous
Peoples and the World Bank. 68
Guerin
The 1984 Court decision in Guerin v the Queen 69 was a legal milestone on the Crown’s fiduciary
obligation in relation to reserve lands. However, the Guerin judgement did not define the scope
or content of the fiduciary duty that was imposed making the duty, without a coherent
framework, difficult to apply. The decision held that the Crown “had a legally enforceable
equitable obligation to deal with the surrendered lands for the benefit of the Indians and that it
failed to do so”. 70 The ruling was especially significant because it confirmed the Crown has a
fiduciary duty for Aboriginal people and a responsibility to safeguard their interests. 71
66
Rights supra note 11 at 7.
Ibid at 9.
68
Ibid at 7.
69
Guerin supra note 59.
70
Salembier, J Paul, “The Crown as Fiduciary and the Conflict of Interest Inherent in its use of Indian Lands for
Public Purposes”, University of Ottawa, December 1994 at 14.
71
Cases supra note 56.
67
18
Sparrow
The 1990 Sparrow72 case was the first time the Court rendered a decision involving s. 35(1) of
the Constitution Act. 73 The SCC ruled that the Constitution Act provides a “strong measure of
protection” 74 for Aboriginal rights. The SCC decided that “any Aboriginal rights that had not been
extinguished before section 35(1) came into force on April 17, 1982, were recognized and
affirmed and could only be infringed, thereafter by or pursuant to, legislation that had a valid
legal objective and that respected the Crown’s fiduciary obligations”. 75 Respect for these
obligations requires that the Crown consult with Aboriginal peoples when their rights are at
stake. Also, the Crown must pursue their legislative objectives with minimal impairment to these
rights as infringement must now be justified under the Sparrow test.
Pamajewon
In the 1996 Pamajewon 76 case the Court dealt directly with the inherent right to self
government. The Court ruled that section 35(1) of the Constitution Act 77 includes self
government claims provided they meet the Van der Peet 78 test and be in relation to the specific
activity over which the right of self government is asserted. 79 Under the Van der Peet test,
Aboriginal claimants have to prove that the disputed activity relates to a practice, custom or
tradition that was “integral” to their “distinctive culture” prior to European contact in order to be
an affirmed right. 80
72
R v Sparrow, [1990] 1 SCR 1075.
Constitution Act supra note 30.
74
Ibid.
75
MacNeil supra note 40 at 18.
76
R v Pamajewon, [1996] 2 SCR 821.
77
Constitution Act supra note 30.
78
R v Van der Peet, [1996] 2 SCR 507 [Peet].
79
MacNeil supra note 40 at 21.
80
Peet supra note 78.
73
19
Delgamuukw
In 1997 the Court rendered a landmark Aboriginal title decision in Delgamuukw. 81 The case
provided “significant analysis of the content of Aboriginal title, how it is protected by section
35(1) of the Constitution Act, 1982 and the requirements necessary to prove it”. 82 The Court
distinguished Aboriginal title as unique, or sui generis, from other proprietary interests.
Delgamuukw establishes that Aboriginal title is held communally and can be used for a variety
of purposes provided that these uses are not irreconcilable with the nature of the Aboriginal
community’s stewardship of the land. 83 Significantly, after Delgamuukw, the Aboriginal “right to
occupy and possess” 84 land is inherent and is not static or tied to pre contact Aboriginal
practices, customs and traditions. However, their unique property interest “is not equated with
fee simple ownership” as it is only alienable to the Crown. 85 By acknowledging Aboriginal title,
the Court acknowledges Aboriginal right to self determination and by extension, sovereignty.
Parliament Reaction
Given the importance of the SCC decisions related to Aboriginal rights and title, there remain
many questions and uncertainties “regarding the content of these rights, their effect on existing
legislation and the scope of the Crown obligation to Aboriginal people”. 86 The nature and extent
of Aboriginal and treaty rights must be resolved through legislation or agreement however
legislation dealing with the issue of Aboriginal self government has been virtually nonexistent. 87
The lack of clarity and significant initiatives on the part of the Crown has resulted in frustration,
anger and conflict which have cast a dark cloud over the relationship between Indigenous
81
Delgamuukw v BC [1997] 3 SCR 1010 [Delgamuukw].
“Summary of Landmark and Key Court Decisions in Aboriginal Law”, BCAFN Special Chief’s Assembly March
2012, online: http://www.bcafn.ca/files/documents/LandmarkandKeyCourtDecisions.pdf [AFN].
83
Delgamuukw supra note 81.
84
Ibid.
85
AFN supra note 82.
86
Justice System supra note 6.
87
Ibid.
82
20
people and the government. 88 Indigenous people are the fastest growing population in
Canada 89 and so the relationship between the Crown and Indigenous people impacts, and is
vital for, the well being of all Canadians.
Territorial jurisdiction
Some territorial land bases have been established for the benefit of Aboriginal people and they
fall into three categories; reserve lands, settlement lands (as negotiated in claims agreements)
and lands set aside by provinces. 90 These land bases are possessed exclusively by, or held in
trust for, Indigenous people mainly because they are the primary occupiers. Even though there
are some exceptions, the governmental authority Indigenous people actually exercise over
these lands is very limited. 91 “Moreover, the territories are often small and poorly endowed with
resources — inadequate to accommodate and maintain their current populations, much less
future generations”. 92 As stated above, RCAP has concluded that Indigenous people need more
lands and resources than they have now. 93
Crisis Zone
The growing Indigenous population matched with inadequate land and resources are moving
Canada into a crisis zone. While it may appear otherwise, “it is essential for Canadians to
understand that these are not new problems” and that “until very recently, governments have
either ignored or failed to address “this looming crisis. 94 RCAP believes that negotiations will
provide the “best hope for a solution” because confrontation will not bring social peace and
88
Ibid.
Statistics Canada, “Growth rate of population”, online: http://www.statcan.gc.ca/pub/89-645x/2010001/growth-pop-croissance-eng.htm.
90
RCAP ch3 supra note 4 at 34.
91
Ibid.
92
Ibid.
93
RCAP ch4 supra note 12 at 4.
94
Ibid at 8.
89
21
continually resorting to litigation is not only expensive but the outcomes may not be
acceptable. 95 However, “before there can be real negotiations, the power imbalance between
Aboriginal governments and federal and provincial governments must be addressed”. 96
RCAP sees that an important step to addressing the power imbalance would be a review of the
land claims process. Because, although there have been some improvements since they were
introduced, the present system is not working. “The system is generally inequitable, inefficient,
time consuming and far too expensive… and it places the department of Indian affairs in a clear
conflict of interest as funding agent, defence counsel, judge and jury.” 97 The interpretation of
Aboriginal title must be interpreted and negotiated outside the doctrines of extinguishment,
frozen rights and restrictive tests if there is to be a just resolution of Aboriginal claims. 98
The Crown’s fiduciary duty requires and obligates the Crown to “enact a fair and effective
process to facilitate negotiated solutions concerning the recognition and protection of Aboriginal
rights to lands and resources”. 99 Expanding the Indigenous land and resource base is not just
about honouring past obligations, “it is about laying a firm consensual foundation for a new
relationship between Aboriginal and non-Aboriginal Canadians, one of fair sharing of Canada’s
enormous land mass, of mutual reconciliation and of peaceful co-existence”. 100 Without such an
equitable system, there can be no true Indigenous sovereignty and will continue to be a clash of
cultures and interests. 101
95
RCAP ch4 supra note 12 at 8.
Ibid.
97
Ibid.
98
Ibid.
99
Ibid at 10.
100
Ibid at 11.
101
Ibid.
96
22
It is possible that the recent SCC Aboriginal title case, Tsilhqot’in, indicates a step in the right
direction.
Tsilhqot’in
The SCC decision in Tsilhqot’in 102, made on June 26, 2014, was a “natural evolution of the
jurisprudence developed by the SCC in cases such as Calder, Guerin, Sparrow and
Delgamuukw”.
103
The Court reaffirmed and restated the test for Aboriginal title. The SCC
rejected the need to demonstrate intensive occupation over land and instead held that
Aboriginal title can be established by showing regular use of the territory by ancestors. 104 After
Delgamuukw, governments and other parties must have the consent of the title holding
community to use their land. If consent is not given, then the Crown must demonstrate a
compelling and substantial governmental objective. 105 This case holds great significance
because it is the first SCC decision where a First Nation was successful in proving a claim for
Aboriginal title and therefore the right to self determination.
The unanimous 8-0 decision of the Justices is a tremendous victory for Indigenous people. It is
time to foster new nation to nation relationship built on mutual responsibility and respect in a
manner that will foster reconciliation and prosperity for all. 106
Conclusion
Since the Calder 107 decision in 1973, there has been evolution towards Indigenous sovereignty
but the progress has been slow. Early treaties were intended to clear land and claim title. The
102
Tsilhqot’in Nation v British Columbia [2014] SCC 44.
Tsilhquot’in Case Comment, Lexpert Ranked Lawyer, online:
http://www.mondaq.com/canada/x/325088/indigenous+peoples/Case+Comment+Tsilhqotin+Nation+v+British+Co
lumbia+2014+SCC+44.
104
Ibid.
105
Delgamuukw supra note 81.
106
Satsan (Herb George) open letter to the First Nation Chiefs of Canada, online: http://www.fngovernance.org/.
103
23
treaty documents were drafted entirely by the colonizers and were not understood by those who
signed consent. Based on the distinct differences in how land is viewed, the Indigenous leaders
could not have agreed to “cede, release, and surrender” title to land which they themselves did
not believe they actually “owned”, but rather believed they used in the name of the Creator. The
Indian Act further marginalized Indigenous people by confining them to tiny, scattered pieces of
land. The assumption of the time was that Indians were genetically inferior and would either die
off or assimilate. This did not happen, Indigenous people have resisted. 108
Some Indigenous groups are moving successfully to claim jurisdiction and title to land however
there continues to be gaps in status, well-being and power between other Canadians. The
dilemma remains that the majority of Canadians, and those who represent them politically, think
about these issues as little as possible. They are not front and centre in any election campaign
and the consistent degradation policy of the federal government continues to perpetuate
misunderstanding, stereotype, and sheer ignorance. 109
“But the issues will not go away, or get any easier, as time goes on. The indigenous population
is the fastest growing in the country, and will become an increasing factor in urban life, where
most Canadians live. Resource development is now extending deep into the traditional territory
of people who have strong views about their own jurisdiction, rights, and needs”. But if the
insistence of our constitutional law is that accommodations must be reached is not matched by
serious political action, the result will not be a trail of tears. It will be a series of confrontations,
107
Calder supra note 3.
Globe and Mail, “The courts have spoken on aboriginal rights. Governments must act”, online:
http://www.theglobeandmail.com/globe-debate/the-courts-have-spoken-on-aboriginal-rights-governments-mustact/article21585198/
109
Ibid.
108
24
large and small, which in themselves will require a response. It has been said that good public
policy is what happens when all the alternatives have been exhausted”. 110
110
Ibid.
25
Bibliography
LEGISLATION
An Act respecting Civilization and Enfranchisement of certain Indians, SC 1859, c IX.
An Act to encourage the gradual Civilization of the Indian Tribes in this Province, and to amend
the Laws respecting Indians, SC 1857, c XXVI.
British North America Act, 1867 (UK), 30 & 31 Vict, c 3.
Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11.
Indian Act, RSC 1985, c I-5.
JURISPRUDENCE
Calder v. British Columbia (AG) [1973] SCR 313.
Delgamuukw v British Columbia, [1997] 3 SCR 1010.
Guerin v. The Queen, [1984] 2 SCR 335.
R v Pamajewon, [1996] 2 SCR 821.
R. v. Simon, [1985] 2 SCR. 387.
R v Sparrow, [1990] 1 SCR 1075.
R v Van der Peet [1996] 2 SCR 507.
Tsilhqot’in Nation v British Columbia [2014] SCC 44.
SECONDARY MATERIAL: ARTICLES
Abele, Frances, “Like an Ill-Fitting Boot: Government, Governance and Management Systems in
the Contemporary Indian Act”, Research paper for the National Centre for First Nations
Governance, June 2007.
Anderson, Robert. “Indigenous Peoples’ Land and Resource Rights”, Research
paper for the National Centre for First Nations Governance, May 2008.
Coates, Ken. “The Indian Act and the Future of Aboriginal Governance in Canada”, Research
paper for the National Centre for First Nations Governance, May 2008.
MacNeil, Kent, “The Jurisdiction of Inherent Right Aboriginal Governments”, Research paper
for the National Centre for First Nations Governance, October 2007.
Salembier, J Paul, “The Crown as Fiduciary and the Conflict of Interest Inherent in its use of
Indian Lands for Public Purposes”, University of Ottawa, December 1994.
Sanderson, Douglas, “Against Supression”, (2011) 24 Can JL & Juris 155.
SECONDARY MATERIAL: GOVERNMENT SOURCES
Report of the Royal Commission on Aboriginal People: Restructuring the Relationship vol 2
(Ottawa: Supply and Services Canada, 1996) Chapter 3 and 4.
Report of the Royal Commission on Aboriginal Peoples: “The Imposition of a Colonial
Relationship” in Looking Forward, Looking Back, vol 1 (Ottawa; Supply and Services
Canada, 1996).
26
SECONDARY MATERIAL: OTHERS
1867-1870: British North American Act, 1867 and Sale of Selkirk Treaty Lands (1869), Canada
in the Making, Aboriginals: Treaties & Relations, online:
<http://www.canadiana.ca/citm/themes/aboriginals/aboriginals6_e.html>
Daniel Paul, “Treaty of 1725”, online: http://www.danielnpaul.com/TreatyOf1725.html.
Globe and Mail, “The courts have spoken on aboriginal rights. Governments must act”, online:
http://www.theglobeandmail.com/globe-debate/the-courts-have-spoken-on-aboriginalrights-governments-must-act/article21585198/
Law Times, “Feds pouring big money into aboriginal litigation”, online:
http://www.lawtimesnews.com/201311113587/headline-news/feds-pouring-big-moneyinto-aboriginal-litigation
Information about Landmark Court Cases, Ministry of Aboriginal Affairs, online:
http://web.uvic.ca/clayoquot/files/volume2/V.B.1.pdf.
The Justice System and Aboriginal People, online:
<http://www.ajic.mb.ca/volumel/chapter5.html>
Royal Proclamation of 1763, the Canadian Encyclopedia, online:
<http://www.thecanadianencyclopedia.com/articles/royal-proclamation-of-1763>.
“Royal Proclamation, 1763”, The University of British Columbia, online:
http://indigenousfoundations.arts.ubc.ca/home/government-policy/royal-proclamation1763.html.
Satsan (Herb George) open letter to the First Nation Chiefs of Canada, online:
http://www.fngovernance.org/.
Statistics Canada, “Growth rate of population”, online: http://www.statcan.gc.ca/pub/89-645x/2010001/growth-pop-croissance-eng.htm.
“Summary of Landmark and Key Court Decisions in Aboriginal Law”, BCAFN Special Chief’s
Assembly March 2012, online:
http://www.bcafn.ca/files/documents/LandmarkandKeyCourtDecisions.pdf
“Treaty of 1752”, Cape Breton University, online: <http://www.cbu.ca/mrc/treaties/1752>.
Tsilhquot’in Case Comment, Lexpert Ranked Lawyer, online:
http://www.mondaq.com/canada/x/325088/indigenous+peoples/Case+Comment+Tsilhqo
tin+Nation+v+British+Columbia+2014+SCC+44.
“The White Paper 1969”, The University of British Columbia, online:
<http://indigenousfoundations.arts.ubc.ca/home/government-policy/the-white-paper1969.html>
27