Aboriginal Rights and Canadian Courts:
by
Michael Cousins
Doctrine of Discovery
Canadian state’ s ability to legislate over First
nations is grounded in the assertion of sovereignty- assertion of sovereignty
reliant upon the Doctrine of Discovery- is this doctrine a valid legal
principle
During 1400's and 1500's two different theories of law
in Europe
European natural law- based primarily upon Christian
religious doctrine- under this Pope is the Lord of the world
positivism under international law- based upon what nations states agree to as acceptable practice- more of a form of international law
In 1492 Columbus arrived in the Americas after having
made a deal with the King and Queen of Spain in which he would receive a tenth
of whatever valuable items that might be gained.
They also presumed they could claim any lands Columbus supposedly discovered. This presumption was based upon the idea that European Christians were superior to non-European non-Christians. Therefore any peoples inhabiting those lands would be subject to European authority.
This theory of claiming land was then further supported
in 1493 when the Pope issued a Papal Bull which is a decree by the Pope which
stated that non-Christians could be placed under the authority of the first
Christian nation discovering their lands- principle of the Doctrine of
Discovery- This is based upon European
natural law which
presumes the Pope to be the lord of the world
Consequently other European nation states accepted
this principle (this is positivism) which allowed them to claim lands in the
Americas
Although European nation states accepted the doctrine
of Discovery, European religious and legal experts of the period disputed the
validity of this practice
Francisco de Vitoria argued against the Doctrine under the principles of international law. He argued that Indigenous peoples were the true owners of their lands and goods before the arrival of the Spaniards, and invoking precepts informed by “Holy Scripture,” Vitoria argued that European claims to world domination were invalid; that all men were free under the law of nature; that the Pope was neither the civil nor the spiritual Master of the world, nor could he claim to be the spiritual lord of nonbelievers. Further, war could not be waged against Indigenous peoples simply because they refused to acknowledge the Pope’s claims to such authority. According to Vitoria, the mere discovery of Indigenous lands by Spain did not confer a valid title, as only land without an owner (res nullius or terra nullius) could be claimed through discovery
Another was Las Casas who argued
that Indigenous rulers could not be deprived of their sovereignty. They
preserved the right to lordship, dignity, and royal preeminence in accordance
with “natural law and the law of nations.”
The most notable of these experts was Grotius, who has been named the father of international law. Although he was not an outspoken supporter of Indigenous peoples he did refute the Doctrine of Discovery. Under the principles of existing international law the right to claim “discovered” land only applies to land which does not have an owner. He further argued that the Pope had no authority over Indigenous nations and claims to their land was insupportable in law.
From the above evidence we can conclude that the
Doctrine of Discovery is far from being a truly valid principle under the
common law, and therefore the assertion of Crown sovereignty in the Americas is
questionable at best.
On October 7, 1763 English King George III issued a
royal proclamation which established British policy for its North American
colonies. Following the defeat of New France, Britain had acquired new
territories from France under the Treaty of Paris, 1763. Notwithstanding
the Treaty of Paris, Britain continued to face a number of threats to its
colonization of North America.
The French population in the new colony of Quebec and
expansionist desires from the Americans were significant threats, but potential
war with First Nations would be even more devastating. The British were
particularly concerned about the 1762 uprising of Odawa Chief Pontiac and the
efforts of the Shawnee to form an alliance with the Iroquois in order to mount
a military offensive against the English.
The Crown having recognized the danger of the
situation set about to remedy it with legal protections for “Indian” interests through the Royal
Proclamation. The document set aside huge tracts of land, reserving them as
Indian hunting grounds, and prohibited grants or purchases of this land, or
settlement on it without a licence. These lands could be purchased only by the
Crown, at the inclination of the “said Indians”, and only after a public
meeting with the “said Indians.”
The Proclamation is clearly directed at protecting Indian possession or use of land reserved to them, but the document also describes the Crown’s understanding of First Nation status in relation to the two parties. The proclamation refers to Native Peoples as Nations or Tribes with whom they are connected. The use of these terms clarifies that First Nations were considered Nations to which the Crown did not hold sovereign authority over. The use of the word “Tribes” can only been seen as an incidental clarifying feature (for the understanding of the English at the time) to the document, as the term “Nations” directly precedes it.
What is important from a First Nations perspective is
the recognition of Indigenous nationhood not bound by English rule. The
Proclamation only provided
Britain with the exclusive right to specific relationships with First Nations
in those territories claimed by it; it did not provide a right of sovereignty
over them and their lands.
Further, the Proclamation cannot be seen as conferring
new rights upon the First Nations
of the period. It simply affirmed existing rights. Charters in English history
did not create rights but rather affirmed existing rights.
The Proclamation’s recognition of First Nation land
and other rights has been incorporated into section 25 of the Canadian
Charter of Rights and Freedoms, which reads:
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;
There is a substantial body of case law to suggest
that the Proclamation has the force of law in Canada. As for the recognition of
the Proclamation in section 25 of the Charter, the effect, scope and
meaning of the rights referred to have yet to be fully determined by the
courts.
The Act’s terms specifically continued the existing
authority of Her Majesty over the confederating provinces and divided or
continued pre-existing areas of jurisdiction between the federal level of
authority and the provinces. In this new division of powers, the federal
authority was accorded exclusive administrative authority over “Indians and
Lands reserved for the Indians” in section 91 (24).
This Act transferred the pre-existing First Nation
land and treaty obligations from provincial authorities in the three provinces
to the federal Crown. Therefore, the federal government assumed the obligations
arising from existing Aboriginal and treaty rights, and also placed itself in an
authoritative position that warranted a fiduciary obligation which continues to
this day.
This fiduciary component requires the federal government to act in the best interests of First Nations in any federal legislation and actions affecting First Nations. This is because of the trust like relationship that has developed as a result of the unilateral imposition of constitutional authority over “Indians and lands reserved for the Indians,” as well as the imposed “dependent” nature of First Nations upon the federal authority.
We have to question the validity of the federal
government to legislate over First Nations and First Nations land under section
91 (24). A basic principle in the common law is that one cannot delegate a
greater authority then one holds. The British Imperial government never
presumed to legislate over First Nations but only in regard to relations with
First Nations. Therefore there was no legal authority to pass that power to the
Dominion government.
The Supreme Court’s first important post-constitutional inherent rights
decision came in R. v. Sparrow.
The following is a synopsis of the main elements in the decision:
1. “Existing” in regard to “existing rights” in section 35(1) means (i)
unextinguished as of April 17, 1982 (but does not mean subject to pre-April 17,
1982, regulatory regimes) and (ii) the rights are affirmed in a contemporary
form, or in other words, modern means or methods can be used to exercise the
right. The way in which the right can be exercised is not frozen in the
pre-contact period.
2. In order to show evidence of an Aboriginal right the claimant must
demonstrate that the particular Aboriginal group lived as an organized society
and that the right being claimed was an integral part of their lives and of
their distinctive culture before the coming of Europeans. The standard of proof
required here is minimal, and when proven, the onus shifts to the Crown to show
serious evidence in rebuttal.
3. In order for prior governmental extinguishment of the right to have
occurred, the Crown’s intention to do so must have been “clear and plain” and
not “necessarily inconsistent” with the continued existence of the right. To
clarify, such things as regulation of a fishery which would be inconsistent
with an inherent right to fish, no matter how detailed the regulation, is not
enough to extinguish an inherent right. The right continues to exist unless
there was a clear and plain intention by the Crown to extinguish the right
(prior to 1982).
4. An Aboriginal right is not as susceptible to government restriction
as before April 17, 1982, but the right is not “absolute” because the words
“recognized and affirmed” are not absolute. Further, the rights are not subject
to regulations in place on April 17, 1982 as that would constitutionalize a
“crazy patchwork of regulations.”
5. Aboriginal rights are now protected from infringement unless the
government is able to justify the infringement.
6. To show a prima facie (meets the standard of evidence based
upon a first impression) infringement of section 35(1) rights, those
challenging the infringement must show that it (i) is an unreasonable
limitation, (ii) has the effect of imposing undue hardship, or (iii) denies the
right holders their preferred means of exercising the right.
7. To justify any infringement the government must demonstrate (i) that
it has a valid legislative objective, (ii) that there has been minimum possible
infringement with respect to the desired result, and consultation with the
Aboriginal group concerned. The legislative objective must be compelling and
substantial which could include preventing harm to the Aboriginal people
concerned or the general populace. However, the “public interest” or mere
‘reasonableness” are not adequate criteria.
8. A generous and liberal interpretation of the words in the
constitutional provision is demanded.
In 1996 the Supreme court made further clarification of the nature of
inherent rights in R. v. Van der Peet. In this case Lamer C.J.
developed the “distinctive practices” test. The test is designed to identify
the “crucial elements” of pre-contact distinctive Aboriginal societies and
consists of three parts:
1. Characterization of claim: determine the precise
nature and purpose of the modern activity claimed to be an Aboriginal right
(ie. The right to hunt on a specific tract of land for food).
2. Evaluation of the traditional practice: determine
whether the activity claimed to be an Aboriginal right is part of a practice,
custom, or tradition which was, prior to European contact, an integral part of
the distinctive Aboriginal society of the Aboriginal people in question. The practice, custom
or tradition cannot exist simply as an incident to another practice, custom or
tradition, but must rather be itself of integral significance to the Aboriginal
society.
3. Assessment of continuity between the traditional
practice and the modern activity: determine whether the traditional practice is
now being practiced with continuity to the modern activity, or whether contact
with Europeans has instituted the practice or changed the practice to the
extent that it could no longer be reasonably viewed as a form of traditional
practice
Pamajewon: the
defendants claimed an Aboriginal right to gambling (bingo) either as a right
derived from Aboriginal title, or as an incident of a broader inherent right to
self-government. The court dismissed “high stakes” gambling as an inherent
right by applying the “distinctive practices” test developed in Van der Peet.
The court concluded that gambling, or the regulation of gambling, was
not an integral part of the claimants society, as traditionally, gambling only
took place informally and on a small scale.
However, in regard to the idea of self-government being an Aboriginal
right within the meaning of section 35(1), the court stated that any right to
self-government must be looked at in the light of the specific circumstances of
each case, and in the light of the specific history and culture of the
Aboriginal group claiming the right.
Cote and Adams: the question was put to the court
as to whether Aboriginal rights can exist independently of Aboriginal title. In
these cases the Supreme Court determined that although claims to Aboriginal
title may fall within the conceptual framework
of Aboriginal rights
Because many Aboriginal nations were historically nomadic or changed
settlements before and after contact with Europeans, nations making a claim to a right will not have to satisfy the
further hurdle of demonstrating that they have claim to title.
Aboriginal rights arise from prior occupation of the land, but they
also arise from prior social organization and the distinctive cultures of
Aboriginal peoples on that land, therefore, when determining whether an
Aboriginal right exists, one must look at the relationship of the claimants to
the land and to the practices, customs and traditions arising from the
claimants’ distinctive culture and society. What the
4 Step test to determine an Aboriginal right:
Step 1- Is there an existing inherent right protected
by section 35 (1) of the Constitution Act, 1982? (Onus of proof on the
First Nation claiming the right)
When assessing a claim to an inherent right one must first identify the
nature of the right being claimed; in order to determine whether a claim meets
the test of being integral to the distinctive culture of the specific First
Nation.
Next, a First Nation must satisfy the integral to a distinctive culture
test. In order to do this, a claimant must do more than demonstrate that a
practice, custom or tradition was an aspect of, or took place in, the First
Nation society of which he or she is a part.
The claimant must demonstrate that the practice, custom or tradition was
a central and significant part of the society's distinctive culture. He or she must demonstrate, in other words,
that the practice, custom or tradition was one of the things which made the
culture of the society distinctive
The time period that one must evaluate in identifying whether the right
claimed meets the standard of being integral to the First Nation claiming the
right is the period prior to contact between First Nations and Europeans. The
reasoning for this is the assertion that First Nations lived on the land prior
to the arrival of Europeans and it is this fact which underlies the Aboriginal
rights protected by s. 35(1), therefore, it is to that pre-contact period,
opposed to the period of the assertion of Crown sovereignty, that the courts
look to when identifying inherent rights.
Further, when examining the right being claimed there is an assessment
of continuity between the pre-contact traditional practice and the modern
activity. It must be determined whether the traditional practice is now being
practiced with continuity or evolving connection to the current right being
claimed, or whether contact with Europeans has either created the practice or
changed the practice to the extent that it could no longer be reasonably viewed
as a form of traditional practice.
The concept of continuity does not require First Nations to provide
evidence of an unbroken chain of continuity between their current inherent
rights practices and those which existed prior to contact. It is very possible
that for a period of time a First Nation for some reason, ceased to engage in
an inherent rights practice which existed prior to contact, but then resumed
that practice at a later date
When attempting to prove the existence of an inherent right the rules
of evidence which are ordinarily required by a court have been a major
stumbling block to First Nations success. This is generally because the
requirement of written documentation has not been available and the use of oral
history not admissible. Fortunately this has been recognized as placing an
undue and unfair burden upon First Nations and courts are now required to approach the rules of evidence, and
interpret the evidence that exists, with a consciousness of the special nature
of First Nations’ claims. The courts must not undervalue the evidence presented
by First Nation claimants simply because that evidence does not conform
precisely with the evidentiary standards that would normally be applied in the
common law.
Step 2- Has the inherent right claimed been
extinguished prior to the enactment of section 35 (1) of the Constitution
Act, 1982? (Onus of proof on the Crown)
Prior to the enactment of section 35 (1) inherent rights could be
extinguished by either; surrender; Constitutional enactment; or validly enacted
federal legislation. As for surrender, the law has always presumed that inherent
rights can be surrendered to the Crown through treaty or other valid
agreements.
Constitutional enactments have also been used to extinguish inherent
and Aboriginal rights. The first was the Manitoba Act, 1870 which the
stated purpose was to “extinguish the Indian title preferred by the
Half-Breeds”. The second is the Natural Resources Transfer Agreement
which has been interpreted by the Supreme Court as extinguishing the commercial
harvesting rights of First Nations.
Validly enacted federal legislation is the final method by which
inherent rights could have been extinguished prior to section 35 (1). What is
required for extinguishment under this practice is a “clear and plain
intention.” In other words, the legislation must clearly and plainly state that
its purpose is to extinguish an inherent right. Legislation that is
inconsistent with, or in conflict with the exercise of an inherent right is not
sufficient to extinguish the right.
Step 3- Has the inherent right been infringed by
federal or provincial legislation? (Onus of proof on the First Nation claiming
the right)
Although existing inherent rights can no longer be extinguished by
Crown legislation, they can be infringed by justified federal and provincial
legislation, as the inherent rights protected by section 35 (1) are not
absolute. In order to determine if there has been a prima facie
infringement of an existing inherent right, a court must consider the following
questions set out in Sparrow:
1. Is the limitation unreasonable?
2. Does the regulation
impose undue hardship?
3. Does the regulation deny to the holders of the
right their preferred means of exercising that right?
Step 4- Can the infringement be justified? (Onus of
proof on the Crown)
In order to justify an infringement of an inherent right the Crown must
demonstrate first, that the infringement took place pursuant to a compelling
and substantial objective and that, second, the infringement is consistent with
the Crown’s fiduciary obligation to First Nations.
The major factor which has been found to be a valid infringement
pursuant to a compelling and substantial objective has been conservation. The
court has also stated that objectives such as the pursuit of economic and
regional fairness, and the recognition of the historical reliance upon, and
participation in, fish and wildlife harvesting by non-Aboriginal groups, are
the type of objectives which can satisfy this standard.
The second step in the justification test requires that any infringement be consistent with the Crown’s fiduciary obligation to First Nations. This is taken to mean that the honour of the Crown is at stake in dealings with First Nations. The special trust relationship and the responsibility of the government vis-a-vis First Nations must be the first consideration in determining whether the legislation in question can be justified.
For instance, in a situation where there were the competing interests of conservation, an established First Nations right to fish for food, commercial fishing, and sport fishing over a specific fishery, the constitutional nature of the inherent right and the fiduciary obligation of the Crown would require First Nations fishing for food to be second in priority to conservation.
In addition, the following factors are also pertinent to the justification of inherent rights infringements, although they are not absolute, but serve as an example of the type of examinations which should occur in order to justify an infringement:
1. Whether there has been as little infringement as
possible to effect the desired result.
2. Whether, in a
situation of expropriation, fair compensation is available.
3. Whether the First Nation in question has been
consulted with respect to conservation measures being implemented.
This is the final step in an inherent rights analysis. If the Crown can
justify an infringement at this stage then the legislation being challenged
will stand until overturned by appeal (on valid grounds for appeal), or if at
the Supreme Court level, the ruling cannot be overturned and the First Nation
cannot appeal the ruling any further. If the Crown fails to justify an
infringement they can amend or repeal the legislation, or appeal the verdict
(on valid grounds for appeal) to the Supreme Court level. If the Supreme Court
fails to justify the infringement the Crown must then amend or repeal the
legislation or its enforcement regulations to conform with the court
ruling.