Aboriginal
Rights in Canada, Background Information
In Canada,
Aboriginal Rights are rooted in the Constitution Act, 1982, and in
Common Law.
1. The Constitution Act, 1982
Section 25 reads as follows:
“25.
The guarantee in this Charter of certain rights and freedoms
shall not be construed so as to abrogate or derogate from any
aboriginal, treaty or other rights or freedoms that pertain to the
aboriginal peoples of Canada including
a) any rights or freedoms that have been recognized by the
Royal Proclamation of
October 7, 1763; and
b) any rights or freedoms that now exist by
way of land claims agreements or may be so acquired.”
Sections 35 and 35.1 read as follows:
“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.
35.1
The government of Canada and the provincial
governments are committed to the principle that, before any
amendment is made to Class 24 of section 91 of the "Constitution
Act, 1867", to section 25 of this Act or to this Part,
(a)
a
constitutional conference that includes in its agenda an item
relating to the proposed amendment, composed of the Prime Minister
of Canada and the first ministers of the provinces, will be
convened by the Prime Minister of Canada; and
(b)
the
Prime Minister of Canada will invite representatives of the
aboriginal peoples of Canada to participate in the discussions on
that item.”
2. Treaty Issues
Accordingly, treaty issues are sources of
contentions. First Nations in Canada have signed agreements with
the Crown, called treaties. There are three groups of treaties:
Pre-Confederation Treaties, Numbered Treaties, and Modern Treaties
(Land Claims).
Pre-Confederation Treaties
include:
King George
III's Royal Proclamation of 1763 and those treaties negotiated in
Canada before Confederation. Also included are The
Robinson
Treaty of 1850 (Treaty No. 13)
and the additions to The Robinson Treaty which are known as Treaty
No. 12 and Treaty No. 14.
Numbered Treaties are the
Treaties
numbered 1 to 11
which were negotiated between 1871 and 1877 with First Nations
peoples across Canada.
The third group of treaties is known as
Modern
Treaties,
which consist of land claims negotiated according to Canada's
Land Claims Policy established in 1973. The Land Claims Policy
recognizes two broad classes of claims - comprehensive claims and
specific claims.
3.
Comprehensive Claims
Comprehensive land
claims are based on the assertion of continuing Aboriginal title
to lands and natural resources. Comprehensive claims settlements
are negotiated to clarify the rights of Aboriginal groups to lands
and resources, in a manner that will facilitate their economic
growth and self-sufficiency. Settlements are intended to ensure
that the interests of Aboriginal groups in resource management and
environmental protection are recognized, and that claimants share
in the benefits of development.
These rights and
benefits usually include:
1)
full ownership of certain lands in the area covered
by the settlement;
2)
guaranteed wildlife harvesting rights;
3)
guaranteed participation in land, water, wildlife
and environmental management throughout the settlement area;
4)
financial compensation;
5)
resource revenue-sharing;
6)
specific measures to stimulate economic development;
and
7)
a role in the management of heritage resources and
parks in the settlement area.
3.1 The Comprehensive
Claims Process
There are six
stages in the comprehensive claims process.
-
Submission of a
statement of claim or statement of intent to negotiate. In
British Columbia, the process begins when the First Nation files
a Statement of Intent to negotiate which is accepted by the
British Columbia Treaty Commission;
-
Preparation for
negotiations;
-
Initial
negotiation, when issues are identified for discussion;
-
Substantive
negotiation, when issues are discussed to produce the
Agreement-In-Principle (AIP) that contains all the features of
the eventual settlement;
-
Finalization,
when all parties formalize the agreement needed in the AIP to
produce a Final Agreement and the agreement is enacted by
settlement legislation;
-
Implementation of
settlement legislation, when the terms of the agreement are
carried out by all parties.
3.2 Self-Government
Agreements
Self-Government
negotiations may take place in parallel with comprehensive claims
negotiations. The Government of Canada recognizes
the inherent right of self-government as an existing Aboriginal
right under section 35 of the Constitution Act, 1982. It
recognizes, as well, that the inherent right may find expression
in treaties, and in the context of the Crown's relationship with
treaty First Nations. Recognition of the inherent right is based
on the view that the Aboriginal peoples of Canada have the right
to govern themselves in relation to matters that are internal to
their communities, integral to their unique cultures, identities,
traditions, languages and institutions, and with respect to their
special relationship to their land and their resources.
Broadly stated, the
Government views the scope of Aboriginal jurisdiction or authority
as likely extending to matters that are internal to the group,
integral to its distinct Aboriginal culture, and essential to its
operation as a government or institution. Under this approach, the
range of matters that the federal government would see as subjects
for negotiation could include all, some, or parts of the following:
1)
establishment of governing structures, internal constitutions,
elections, leadership selection processes ;
2)
membership;
3)
marriage;
4)
adoption and child welfare;
5)
Aboriginal language, culture and religion;
6)
Education;
7)
Health;
8)
social services;
9)
administration/enforcement of Aboriginal laws, including the
establishment of Aboriginal courts or tribunals and the creation
of offences of the type normally created by local or regional
governments for contravention of their laws;
10)
policing;
11)
property rights, including succession and estates;
12)
land
management, including: zoning; service fees; land tenure and
access; and expropriation of Aboriginal land by Aboriginal
governments for their own public purposes;
13)
natural resources management;
14)
agriculture;
15)
hunting, fishing and trapping on Aboriginal lands;
16)
taxation in respect of direct taxes and property taxes of members;
17)
transfer and management of monies and group assets;
18)
management of public works and infrastructure;
19)
housing;
20)
local
transportation;
21)
licensing, regulation and operation of businesses located on
Aboriginal lands;
3.3 Mechanisms for
Implementation
The Government
anticipates that agreements on self-government will be given
effect through a variety of mechanisms including treaties,
legislation, contracts and non-binding memoranda of understanding.
3.4
Specific Claims
Most specific
claims are related to land and generally involve either the loss
of reserve lands without lawful surrender by the band concerned,
or the government's failure to pay compensation where lands were
taken with legal authority. Other specific claims arise with
respect to the administration of Indian monies and other assets
such as timber and mineral rights.
The government's
policy on specific claims is that it will recognize claims by
Indian bands which disclose an outstanding "lawful obligation",
i.e., an obligation derived from the law on the part of the
federal government. A lawful obligation may arise in any of the
following circumstances:
1)
The
non-fulfillment of a treaty or agreement between Indians and the
Crown.
2)
A
breach of an obligation arising out of the Indian Act or other
statutes pertaining to Indians and the regulations thereunder.
3)
A
breach of an obligation arising out of government administration
of Indian funds or other assets.
4)
An
illegal disposition of Indian land. Canada.
3.5 How Specific Claims
Are Dealt With
The following
steps are usually followed:
-
Presentation of
the claim.
-
Review of claims
by the Office of Native Claims.
-
Determination of
the acceptability of the claim.
-
Resolution
-
Further review of
the claim by the Indian Claims Commission.
3.6 Treaty Land
Entitlement
Treaty Land
Entitlement is a group of claims which relate to a group of
treaties that were signed with First Nation. Many First Nations
did not receive the full amount of land that was promised to them.
These outstanding land entitlements are referred to as Treaty Land
Entitlement claims and they are handled separately from other
specific claims.
4. Summaries of Some
Important Case Law
Noteworthy are:
4.1
Treaty issues
R. v. Marshall,
[1999] 3 S.C.R. 456
The Supreme Court of Canada ruled that there is an
implied term in the Treaties of 1760-61 granting to the Mi'kmaq
signatories a right to engage in traditional resource harvesting
activities, including for the purposes of sale, to the extent
required to provide them a moderate livelihood. In the course of
the judgment, the Court clarified some important principles of
evidence relating to the interpretation of Indian historical
treaties. In particular, the Court expressly rejected its earlier
pronouncement in the Horse case that treaties are to be
interpreted without resort to intrinsic evidence where the treaty
terms are unambiguous.
R. v. Marshall,
[1999] 3. S.C.R. 533
One month after the above Marshall Supreme
Court of Canada decision, the Court, in the course of dismissing
an application for a rehearing of the case, clarified several
important aspects relating to its prior decision. The Court
stressed that the treaty right does not belong to the individual
but is exercised by the local community. The Court also emphasized
that, in its earlier judgment, the only treaty right which had
been established was in relation to fishing, hunting and
traditional gathering activities such as wild berries and fruit.
With respect to what resources are covered by the treaty, the
Court stated that any extended interpretation of the term "gathering"
so as to include logging and minerals, would have to be
established by the aboriginal claimant in another case. The
exercise of the treaty harvesting right is limited to the area
traditionally used by the local community. With respect to the
justified infringement of the treaty harvesting right, the Court
stressed that the Crown can accommodate the historical involvement
by non-aboriginal persons in the resource industry in regulating
the treaty right.
4.2
Aboriginal Rights and Fiduciary Obligation Issues
R. v. Van der Peet,
[1996] 2 S.C.R. 507; R. v. Gladstone,
[1996] 2 S.C.R. 723; R. v. NTC
Smokehouse Ltd., [1996] 2 S.C.R. 672
These cases involve the question of whether section
35 of the Constitution Act, 1982 includes, as an aboriginal
right, a right to fish commercially. In the Van der Peet
case, the Court outlined the test for identifying aboriginal
rights protected under section 35. Essentially, an aboriginal
group must establish that, at time of contact with Europeans, the
particular activity claimed as an aboriginal right was a practice,
tradition or custom that was integral to the society's distinctive
culture.
Applying the above test to the facts of the cases,
the Court ruled that the accused in Gladstone had
established an aboriginal commercial fishing right. However, the
Court also indicated that, in the context of aboriginal commercial
fishing rights, there are no internal limitations to the right. As
such, the Sparrow justification test had to be refined for
aboriginal commercial fishing rights. Other considerations, apart
from conservation goals, are to be taken into account in
determining whether governmental restrictions were justified.
Objectives such as the pursuit of economic and regional fairness,
as well as, the historic non-native participation in the fishery
are relevant objectives in the context of the justification
analysis. Aboriginal rights have to be given priority but they
also have to be reconciled with other rights and interests.
4.3
Reserve Related Issues - Taxation
Westbank First
Nation
v. British Columbia Hydro and Power Authority, [1999] S.C.R. 134
The Supreme Court of Canada dismissed the appeal of
the Westbank First Nation from the decision of the B.C. Court of
Appeal that the Band's assessment taxation by-laws do not apply to
B.C. Hydro. The Court set out the test outlining how charges
levied by public bodies qualify as a "tax". In applying the
criteria, the Court held that the Band's by-law imposed a tax. In
view of the fact that provinces and their agents, such as B.C.
Hydro, are exempt from taxation under section 125 of the
Constitution Act, 1867, the Court held that B.C. Hydro is
exempt from the Band's taxes.
The decision makes it clear that, although a by-law
may have received ministerial approval, the application of the
by-law will have to nevertheless withstand constitutional scrutiny.
The Court also acknowledged that Parliament's intention in
enacting section 83 of the Indian Act may have been to
advance self-government and that, so long as validly levied
charges do not bear the hallmarks of "taxation", a Band is
constitutionally capable of imposing regulatory charges or user
fees on third parties, including an agent of the provincial Crown.
Osoyoos Indian Band
v. Oliver (Town),
Supreme Court of Canada (2002)
As a general matter
the Court should be cautious in taking away interests in land in
the absence of a complete evidentiary record.
Section 83(1)(a)
of the Indian Act provides Indian bands with the
jurisdiction to impose tax on a very broad range of interests in
land, and should be given a broad reading. Band councils have the
power to tax any interest or use of reserve lands in order to
defray their costs as the government of that land. It follows that,
unless the entire interest of a band is removed, land remains in
the reserve for the purposes of s. 83(1)(a) and both
easements and rights to use or occupy land held by non-band
members are subject to the taxation jurisdiction.
The fiduciary duty
of the Crown is not restricted to instances of surrender.
Section 35 clearly permits the Governor in Council to allow the
use of reserve land for public purposes. Once it has been
determined that an expropriation of Indian lands is in the public
interest, however, a fiduciary duty arises on the part of the
Crown to expropriate or grant only the minimum interest required
in order to fulfill that public purpose, thus ensuring a minimal
impairment of the use and enjoyment of Indian lands by the band.
This is consistent with the provisions of s. 35 which give the
Governor in Council the absolute discretion to prescribe the terms
to which the expropriation or transfer is to be subject. This
two-step process minimizes any inconsistency between the Crown's
public duty to expropriate lands and its fiduciary duty to Indians
whose lands are affected by the expropriation. As the Crown's
fiduciary duty is to protect the use and enjoyment of the Indian
interest in expropriated lands to the greatest extent practicable,
the duty includes the general obligation, wherever appropriate, to
protect a sufficient Indian interest in expropriated land in order
to preserve the taxation jurisdiction of the Band over the land,
thus ensuring a continued ability to earn income from the
land.
While in general
s. 35 of the Indian Act authorizes the removal of land from
the reserve, it did not authorize the removal of lands from the
reserve for the purposes of s. 83(1)(a) in the
circumstances of this case. Because the source of the power to
expropriate here was the Water Act, the discretion to grant
"land" pursuant to s. 35(3) was limited to the land or interest in
land "reasonably required" for the canal. Since the canal was
already built when the transfer was made, the interest in question
is that which is reasonably required to operate and maintain the
canal only.
A canal is similar
in nature to a railway in that both are permanent structures on
the land involving operation and maintenance activities, and a
grant of a statutory easement can be sufficient for the purposes
of building and maintaining a railway.
The Order in
Council does not evince a clear and plain intent to extinguish the
Band's interest in the reserve land. It is ambiguous as to the
nature of the interest conveyed. In light of such ambiguity,
resort must be had to the interpretive principles applicable to
questions dealing with Indian interests, and the interpretation
which impairs the Indian interests as little as possible is to be
preferred. In light of these principles, the Order in Council
should be read as granting a statutory easement to the province,
and therefore the canal land is still "in the reserve" for the
purposes of s. 83(1)(a) of the Indian Act.
5.
Residential Schools and Aboriginals
Numerous individuals are seeking damages for the
abuse they suffered at residential schools and have filed lawsuits
that name the Federal Government, among others.
