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Proving Aboriginal Rights

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Larry Chartrand

on 19 November 2014

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Transcript of Proving Aboriginal Rights

In Van der Peet, C. J. Lamer identified this dilemma and briefly alluded to two possible theories to overcome the apparent obstacle that Van der Peet posed for the Métis.
One theory involved tracing the rights of the Métis through to their Indian ancestors.
The other theory argued that tracing devalued the Métis peoples as a distinct people in their own right. Thus, a modified test should apply to the Métis so they could make claims based on their existence as distinct autonomous Métis communities.
Métis peoples not to be ignored any longer.
First time the Supreme Court of Canada dealt with the Aboriginal rights of the Métis.
The Supreme Court of Canada unanimously upheld a Métis right to hunt for food of the Sault Ste. Marie Métis community.
How does the court characterize the right?
What was the problem with the defendant’s characterization?
What accommodations did the court make in terms of the necessary evidence to prove that a practice of harvesting wood existed pre-contact?
How does the court deal with the distinctive to culture test?
Aboriginal rights are not general rights. They are specific to the particular Aboriginal community claiming the right (@ 131) and in many cases specific to a particular location/area (Cote @
Community Specific
The practice, custom or tradition must be a defining feature of the community.

It must be a central and significant part of the culture, such that without the activity, the community would be “fundamentally altered” without it.

Thus it cannot be an activity that was merely incidental to an Aboriginal right. No “piggybacking” allowed.
Van der Peet clarified what must be proven by an Aboriginal group.
The Aboriginal group must show that the right being claimed was a practice, custom or tradition integral to the distinctive culture of the Aboriginal society prior to European contact.
That reasonable continuity between the pre-contact practice and the contemporary claim is satisfied.
Poof of the Aboriginal Right
Extinguishment (Clear and Plain)
Infringement (beyond trivial)
Justification of the Infringement
Valid legislative objective
Fiduciary Duty
Priority allocation:
Inherent vs. non-inherent limited rights
Fair compensation
What is problematic with the current doctrine of Aboriginal rights as defined by the Supreme Court of Canada?
“Aboriginal vs. Peoples”
Assertion of Sovereignty (title cases) (Although Justice MacInnes in the MMF case held that the test applied in Powley would most likely be applied by analogy to Aboriginal title claims by Metis)
First Nations response?
Judicially imposed cultural participation criteria? (Fundamental human rights?)
What is “other means”?
Métis status (2nd class Métis?)
Where is the collective in all this?
Unanswered Questions
Ontario: R.v. Laurin [2007]
Alberta: R. v. Kelly [2007]
Saskatchewan: R. v. Laviolette [2005] and R.v. Belhumeur [2007]
Manitoba: R. v. Goodon [2008]
Subsequent Cases Recognizing Metis Aboriginal Rights
The Court identified three criteria:
Self-identification (not of recent vintage)
Ancestral connection (objective)
No minimum blood quantum required, but,
Claimant’s ancestors must have belonged to the historic Métis community by birth, adoption or other means…
Community acceptance (objectively demonstrated through cultural involvement)
Membership in a Métis political organization not necessarily sufficient.
Who is a Member of a Métis Community?
The Court upheld the lower courts characterization of the right as the right to hunt for food.
The right to hunt for food is the activity that was integral to the distinctive culture of the pre-control Métis community of Sault Ste. Marie.
The right is not restricted to a particular species.
Characterizing the Right
Thus, Métis peoples is a legal concept. It is not a label that identifies any one particular group based on its history and use.
Métis is a Legal Concept
Métis community is defined as a group of Métis with a distinctive collective identity, living together in the same geographic area and sharing a common way of life.
Continuity requirement still essential. The contemporary Métis community must demonstrate a degree of continuity with a historic Métis community that existed prior to European control in the area.
Métis Community
Nor, did the Court opt for an overly broad definition.
The Court held
“The term Métis in s.35 does not encompass all individuals with mixed Indian and European heritage; rather it refers to distinctive peoples who, in addition to their mixed ancestry, developed their own customs, way of life, and recognized group identity separate from their Indian or Inuit and European forebearers.”
The Court rejected the narrow definition of Métis peoples as referring to the Métis Nation of the prairies.
It agreed with the Royal Commission that there are different groups of Métis in Canada.
Defining Métis Community
In rejecting the trace theory, the Court adopted a modified test specific to the Métis.
The Court adopted a post contact but pre control test that identifies the time when Europeans effectively established political and legal control in a particular area.
A Modified Test for the Metis
Fortunately, for the Métis, the trace theory was categorically rejected.
The Court said:
“We reject the appellant's argument that Métis rights must find their origin in the pre-contact practices of the Métis’ aboriginal ancestors. This theory would deny to Métis their full status as distinctive rights-bearing peoples whose own integral practices are entitled to constitutional protection under s. 35(1).
Trace Theory Rejected
Van der Peet held that s. 35 protects those activities, customs or traditions that were integral to the distinctive culture of the Aboriginal community prior to European contact.
Applied strictly, this test would exclude the Métis from ever asserting Aboriginal rights since they would by definition post-date European contact.
The Dilemma of Van der Peet
The Powleys belong to the Métis Community of Sault Ste. Marie.
They shot a moose for food and were charged with provincial offence violations.
At the time, the province had a policy to not charge Indians, but the policy did not apply to the Métis.
They argued that they had an Aboriginal right to hunt and that the regulations were an infringement on their right.
Facts of Powley
The Impact of Van der Peet
Rejecting the Trace Theory
A Distinct Rights-Bearing Community
Modified Van der Peet test
Defining Métis Community
Characterizing the Right
Defining who is Métis

How did Justice Binnie’s dissent differ from the majority?
Aboriginal Perspective of their relationship to “wood”
How does the court respond to the Crown’s limitation of the uses of the wood to ‘wigwams, baskets and canoes”?
Continuity and Evolution of the right
Strong dissents by McLachlin and L’Heureux-Dube in “trilogy” cases.
What concerns did these judges have in regards to Chief Justice Lamer’s criteria for proving Aboriginal rights?
Characterization of the right
Time frame for determination
What were their alternatives?
Criticism of Lamer’s Approach
Fundamental principles of evidence apply to such claims as any other civil or constitutional claim.
However, in the case of Aboriginal claims, the rules of evidence must be adapted to accommodate the admissibility of oral histories.

Adjudication of claims to be undertaken on a case by case, community by community basis.
Evidence Rules in Proving existence of an Aboriginal Right
There must be continuity between the right claimed in the present with the exercise of the right prior to European contact.
The practice, tradition or custom may evolve and is not limited to the means used to exercise the right at the time of contact.
Nor, does continuity require continuous uninterrupted use.
However, a practice, tradition or custom that arose solely as a result of European influence (i.e. possibly trapping) will not be considered a right that is integral to the distinctive culture of the Aboriginal group. (Van der Peet)
Van der Peet, = “central significance”
Mitchell, = “core of their very identity”
Sappier/Gray = ‘the practice need only be integral” to distinctive culture defined as “pre-contact way of life of a particular aboriginal community, including their means of survival, their socialization methods, their legal systems and … their trading habits”
Legal Evolution of Meaning of Distinctive Culture
What is the difference between these two concepts?
Distinct vs. Distinctive
The right must be a practice, custom or tradition integral to the distinctive culture of the Aboriginal group.
Integral to distinctive culture
What is the nature and scope of the Aboriginal right claimed?
This involves correctly characterizing the right in light of several factors. They include understanding the significance of the practice, custom or tradition in addition to considering:
a. The nature of the action which the applicant is claiming was done pursuant to an aboriginal right;
b. the nature of the governmental legislation or action alleged to infringe the right; and
c. the ancestral traditions and practices relied upon to establish the right.
Characterizing the right
The Aboriginal perspective on the meaning of the rights are to be taken into account, but in doing so, they must be framed in terms cognizable to the Canadian legal system…
… They “exist within the general legal system of Canada”.
Aboriginal Perspective
The overall purpose of s.35 is aimed at “reconciling the prior occupation of North America by aboriginal societies with the Crown’s assertion of sovereignty” (Van der Peet)

Thus, s.35 provides the constitutional framework through which the fact that Aboriginal peoples “lived on the land in distinctive societies, with their own practices, traditions and cultures”, is acknowledged and reconciled with the sovereignty of the Crown.
Purposive Approach
Flow from the nature of the fiduciary relationship:
Statutory and Constitutional provisions must be given a generous and liberal interpretation;
Where there is any doubt or ambiguity with regards to what falls within the scope and definition of s.35(1) must be resolved in favour of Aboriginal peoples.
(Van der Peet)
General Principles
C.J. Lamer discusses how the term Aboriginal rights in s.35 should be interpreted.
He emphasizes the importance of not only considering that s.35 protects “rights”, but that they are “aboriginal” rights.
Defining Aboriginal Rights
Dorothy Van Der Peet of the Sto:lo sold 10 salmon for $50.00 contrary to British Columbia fishery regulations.
She argued that the regulations are contrary to her constitutionally protected Aboriginal right to sell fish.
Van der Peet
The Evolution of Aboriginal Rights Doctrine
Characterization of the right (determine the appropriate level of specificity)
Assertion of sovereignty by the Crown (determine if the right survived – sovereign incompatibility)
Proof of the right
Activity, Custom or Tradition (e.g. right to hunt moose)
Integral to distinctive culture of the Aboriginal society.
Existed prior to European Contact (or effective control- Métis)
Exclusive occupation of the territory.
At the time when the Crown asserted Sovereignty over the territory (or effective control – Métis?)
Aboriginal Rights Framework Summary
Sappier and Gray (2006)
Proving Aboriginal Rights
Full transcript