mod 7 - Indigenous Law

Question 1

S. 35 of the Constitution 1982

Answer 1

• s. 35 (1) the existing aboriginal and treaty rights of aboriginal peoples of Canada are hereby recognize and affirmed
• s. 35 (2) in this act, aboriginal peoples of Canada includes Indian, Inuit and Metis peoples of Canada

Question 2

Facts about Indigenous Peoples

Answer 2

• terra nullius: a land of no-one (Canada was not empty when Europeans arrived)
• indigenous peoples were never conquered (never agreed to be ruled by Canadian law)
• about 5% of Canadians are aboriginal/indigenous
• aboriginal is the term used in Canadian law, but Indigenous is more preferred

Question 3

Canadian law divides Aboriginal peoples into:

Answer 3

• indigenous or First Nations peoples, entitled to live on reserves and governed by the Indian act
• metis peoples, descended from communities created by intermarriage
• Inuit peoples, who generally live in the far North

Question 4

Sovereignty - the problem

Answer 4

• indigenous peoples were excluded from the constitution in 1867
• The BNA gives the federal government primary jurisdiction over Indigenous peoples

Question 5

Tsilhqot’in v British Columbia - case facts

Answer 5

• In this case, the court said the doctrine of terra nullius never applied in Canada (Borrows feels Canada’s rule over indigenous peoples, ignores their right to self-governed as affirmed in the UN declaration)
• the Tsilhqot’in lived for centuries in a remote valley in British Columbia (from their perspective this land has always been their’s)
• the British crown asserted sovereignty over their territory in 1846, but the crown never entered into any treaties to address their land rights
• when the B.C government issued logging licenses on their territory without their consent, the Tsilhqot’in sued for a declaration that they still have title to 5% of their traditional land
• held: declaration for aboriginal title granted. The crown must obtain Tsilhqot’in consent to future logging, or constitutionally justly infringement of their title rights

Question 6

Tsilhqot’in v British Columbia - the test for proving aboriginal title

Answer 6

• in the absence of a treaty, an aboriginal group that proves it exclusively and sufficiently occupied a territory when Canada asserted sovereignty in the area holds aboriginal title to the land (sufficiency of occupation, continuity of occupation and exclusivity of occupation)

Question 7

Deciding whether the group has sufficient occupation

Answer 7

• courts must consider both common law property concepts and aboriginal perspectives on use of the territory
• they must also consider the character of the land and the nature of the aboriginal society at the time sovereignty was asserted
• in all cases the aboriginal group must prove it regularly used the land

Question 8

Continuity of occupation

Answer 8

• continuity between present and pre-sovereignty occupation
• The concept of continuity does not require aboriginal groups to provide evidence of an unbroken chain of continuity between their current practices, customs and traditions, and those with which existed prior to contact

Question 9

Exclusivity of occupation

Answer 9

• The aboriginal group must have had the intention and capacity to retain exclusive control over the land
• it can be established by proof that others were excluded from the land

Question 10

What aboriginal title means

Answer 10

• aboriginal title is an ownership right - the right to control the use of the land and enjoy its benefits
• it is a collective right, for the community to share
• it is more limited than fee simple, the ordinary ownership right in Canada: the land can only be sold to the crown and it must not be used in a way that prevents its enjoyment for future generations

Question 11

When aboriginal title can be infringed

Answer 11

• Aboriginal title is a constitutionally protected right, but it is not absolute
• if the federal or provincial government seeks to regulate or use aboriginal title lands, and it doesn’t obtain the aboriginal group’s consent, it may still infringe the title if:
• it consulted with the aboriginal group,
• it has a compelling and substantial objective, and
• it’s action is consistent with the crown’s trust-like (fiduciary) relationship with the aboriginal people

Question 12

When aboriginal title is unproven

Answer 12

• The crown owes a procedural duty imposed by the honour of the crown to consult and, if appropriate, accommodate the unproven aboriginal interest

Question 13

Tsilhqot’in conclusion

Answer 13

• The trial judge concluded that the Tsilhqot’in occupation was both sufficient an exclusive at the time of sovereignty (entitled to aboriginal title)
• while the Tsilhqot’in did not yet hold aboriginal title, the provincial government failed to consult them on uses of the land and accommodate their interests
• this case is the only aboriginal title case to be decided by the courts

Question 14

The Royal proclamation, 1763

Answer 14

• Royal proclamation was a unilateral declaration of the crown, a certain crown sovereignty over what is now Canada
• it also affirmed aboriginal title and ownership over all unpurchased land
• requires the crown to act honourably in it’s dealings with indigenous peoples
• specific requirements regarding administration and control of Indian lands
  (a) The prohibition on the private purchase of Indian lands, (b) The Prohibition on grants of patents or warrants of survey by the governor for unsurrendered Indian lands; and, (c) The requirement that the Indian lands be surrendered to the crown a public meaning

Question 15

The legal nature and effect of the treaties

Answer 15

Since the Constitution act 1982, courts have ruled:

1) a treaty is any solemn agreement between the crown and a First Nation intended to bind future generations
2) The legal effect of a treaty is to override general laws
3) treaty terms must be interpreted generously
4) governments may nonetheless infringe treaty rights if they can prove that the infringement is justified because of a compelling and substantial public purpose, and that their action is consistent with the honour of the crown

Question 16

Restoule v. Canada

Answer 16

• under pressure from the mining and forestry interests, in 1850 the Anishinaabe negotiated two treaties with the crown, covering a vast area of their lands near the shores of Lake Superior and Huron Robinson
• the Crown negotiator offered less money per acre than previous treaties, but agreed that the annuity would be raised in the future if revenues from land permit
• The annuity has remained at $4 per person since 1875
• in 2018, the Anishianaabe sued the crown, claiming breach of its treaty promise

Question 17

Restoule held:

Answer 17

• held: the crown has an obligation to increase the annuity when economic circumstances warrant.
• Ontario in Canada must engage in an honourable process to determine if they can increase the annuities without incurring loss

Question 18

Restoule - treaty interpretation

Answer 18

• the goal of treaty interpretation is to find the parties’ common intention, looking at both sides’ perspectives, not just the written words of the treaty document;
• the crown must act honourably in interpreting and implementing treaties;
• the honour of the crown requires that it live up to the purpose of the treaty (to reflect the value of the territories covered by the treaty);
• ambiguities should be resolved in favour of the Aboriginal people

Question 19

Haida nation - the crown’s duty to consult

Answer 19

• the Haida people had lived on the Hadia Gwaii islands for centuries and have formally claimed title to them for over 100 years
• the crown declined to enter a treaty
• in the 1990s, the British Columbia transferred old growth logging rights on the islands, without seeking consent of the Haida people
• the Haida nation sued to challenge the province’s right to issue the logging licences and claimed their aboriginal title to their traditional lands

Question 20

Haida nation held

Answer 20

• held: while the Haida peoples aboriginal title claim proceeds in the courts, the crown has the duty to consult them about proposed forestry and other resource decisions affecting their traditional lands

Question 21

Haida Nation - legal principles

Answer 21

• the crown has a duty of honourable dealing toward aboriginal peoples, which arises from the crown’s assertion of sovereignty over an aboriginal people and its de facto control of land and resources that were formerly in the control of those people
• where treaties remain to be concluded, the honour of the crown requires it to negotiate in good faith, and in the interim to consult with aboriginal peoples about proposed uses of their traditional land

Question 22

The duty to consult arises when:

Answer 22

i) when the crown knows of a potential s. 35 right (including treaty rights and title rights), and ii) when the crown contemplates action that may interfere with that right
- the extent of those consultations depends on the strength of the aboriginal claim and the severity of the proposed interference
- good faith is required on both sides, but the crown ordinarily has no duty to obtain the consent of the aboriginal group affected

Question 23

Who is the crown?

Answer 23

• the crown means the representatives of the Queen when they make executive decisions in Canada
• the duty to consult applies to the federal and provincial governments, and their ministers, when they make decisions that could affect an aboriginal groups s. 35 rights

Question 24

Summary

Answer 24

• in areas of Canada where treaties were signed, their promises are protected by section 35 of the constitution act 1982
• in areas where no land treaty was signed, proof of exclusive occupation when sovereignty was asserted gives rise to aboriginal Title, also protected by s. 35
• the crown may infringe s. 35 rights only if they can pass the 3 part test of constitutional justification
• whenever the crown proposes to interfere with claimed s. 35 rights it has a legal duty to consult the aboriginal group affected