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A Critical Perspective of Section 35 Aboriginal Rights Juris

An Overview of Justice Harry LaForme's Book Chapter 2013

Larry Chartrand

on 16 October 2018

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Transcript of A Critical Perspective of Section 35 Aboriginal Rights Juris

A Critical Perspective of Section 35 Aboriginal Rights Jurisprudence:
A Way Forward?

The Nature of Aboriginal Interests Today
Justice LaForme describes the legal nature of Aboriginal interests recognized today based on the judicial interpretation of s.35 as follows:

Land - Aboriginal interests in land are sui generis. It is not a right to own in fee simple, nor a right to govern: it is merely a right of occupancy that is "personal and usufructurary".
How We Got Here
Early treaties represented respect for each other as nations and were entered into for mutual benefit often applying Indigenous laws and protocols.

"Aboriginal people believed that treaties established living, evolving pacts ... The Aboriginal understanding recognized neither European title nor Aboriginal submission to a European monarch. Aboriginal peoples were not asked, nor did they agree to give up their laws and adopt non-Aboriginal ways". (@ 1341)

Interpreting S.35 From a Poisoned Foundation
There were a number of positive political and legal Developments leading to the partriation of the Constitution with s.35 and s.25 included, yet the courts have strayed little from the colonial conceptual nature of Aboriginal interests.

Although Aboriginal title is a protected right in s.35, it is conceptually inferior to fee simple and remains a mere burden on the Crown's underlying title acquired by the fiction of discovery. In 1990, the SCC stated that there was "
never any doubt that sovereignty and legislative power, and indeed the underlying title, to such lands vested in the Crown
". (Sparrow)

Moreover, only those rights that were not extinguished prior to 1982 were constitutionally protected. That is the meaning given to the term "existing" in s.35.

If a right survived unextinguished in 1982, then it survives in its totality not in its regulated form and is allowed to evolve in light of technological advances.

However, such a right, if infringed by government action, could be subject to such infringement if the government met the justification test of Sparrow/Badger.

And, the bar of justification has been lowered and lowered by the courts .... (@ 1369)

Moreover, there is the very real danger of a cumulative impact of justifications being upheld raising concerns that rights are becoming extinguished by "a thousand cuts" over time.

The Road Ahead ...

Embracing a Revitalized Concept of "Reconciliation" Necessary
A Review of Justice Harry LaForme's Overview
Sovereignty - The Canadian Parliament retains ultimate jurisdiction and power and can notwithstanding s.35 still modify the exercise of rights without consent (albeit in a more limited manner). Treaties and Treaty rights are treated the same and are considered sui generis and not made or interpreted according to the edicts of international law. The challenge is in actually getting meaningful rights recognized by the courts (extremely onerous and restrictive test -
Van der Peet)
which are then subject to parliamentary override by the justification test from Sparrow (Aboriginal rights) and Badger (Treaty rights). (Even more, it looks as if they are no longer protected by the doctrine of interjurisdictional immunity, as per
Grassy Narrows
Identity - Aboriginal people are "wards" of the state who must be protected by government.
Original Nation to Nation Relations
The Colonial Shift in the Relationship and the Biased Reinterpretation of the Royal Proclamation of 1763
Over time Aboriginal peoples viewed as "obstacles" to colonial economic interests and expansion. (Indeed,
defines the purpose of s.91(24) as a plenary power for Canadian colonial expansion).

The relationship of mutual respect changed to one of dominance and policies introduced to "assimilate" Aboriginal peoples into European culture.

Treaties became legally insignificant or ignored.

The ambiguity in the
Royal Proclamation
allowed for it to become a tool for restricting Aboriginal interests and subordinating them. (@ 1343)

The Poisonous Roots ...
In the interests of colonial authority, the doctrine of discovery becomes twisted by early American jurisprudence to become a common law right of the British Crown. (@ 1347)

All lands under this colonial derived doctrine of discovery is said to vest in the European power that discovered the lands. All lands whether vacant or occupied by an Indigenous power were considered legally vacant and the presence of Indigenous nations such as the Algonquin ignored because of the "inferior character of Aboriginal culture" (@ 1348)

This line of reasoning was subsequently adopted into Canadian law through the decision of
St. Catherine's Milling in 1887
. (@ 1352)

Co-extensive with this notion of inferiority built into the discovery doctrine was the promulgation of Federal "Indian" policy designed to destroy every aspect of Indigeneity as much as possible resulting in great personal, social and economic harm the effects of which are presently manifest in the epidemic rates of incarceration, child welfare interventions, health and social deficits.
Assessing the impact of the Constitutional jurisprudence: (@ 1379)
Only one case to Aboriginal title recognized.
No right to Self-government of any degree yet recognized.
No right to self-identification yet to be acknowledged.
Reconciliation must be more than a "one way street". (@ 1382)

Canadians, the courts and politicians must take action with courage and for once and for all expunge the doctrine of discovery that continues to infest the constitution of Canada. (@ 1386)

Courts must understand how the doctrine of stare decisis and precedent has hidden the racism imbedded in current law.

An unrestricted modern treaty process is needed that takes certain reconciliation factors into account (@ 1388) and breathes real life and power back to First Nations to effectively govern in an honourable relationship of equality. (@ 1389)
How can one reconcile the concept of parliamentary supremacy with a nation to nation understanding of the British - Indigenous Nation(s) relationship? (@ 1354)
Perhaps through the recognition of Treaties as constitutive in nature ... (RCAP, Quebec Secession, @ 997)
affirm that treaties, could prior to 1982, be unilaterally extinguished by the Crown and post 1982 be infringed by government if justified under the Badger test (which adopts the Sparrow justification analysis - whether the Tshilqot'in modified test will apply to treaty has yet to be determined, but it would be logical given past correlations that the court would do so.
Legal nature of treaties somewhere between international treaties between States and private contracts (White and Bob)

According to Simon and later affirmed in Sioui treaties are a unique sui generis legal interest “which is neither created nor terminated according to the rules of international law.
This view of the treaties as Sui Generis has been noted and criticized by the United Nations which has studied treaties made by England and Indigenous nations and found that there is no logical basis for making a distinction between these and other international treaties.


. In the case of indigenous peoples who concluded treaties or other legal instruments with the European settlers and/or their continuators in the colonization process, the Special Rapporteur has not found any sound legal argument to sustain the argument that they have lost their international juridical status as nations/peoples. The treaty provisions which, according to the non-indigenous version and construction, contain express renunciations by indigenous peoples of their attributes as subjects of international law (particularly, jurisdiction over their lands and unshared control of their political power and institutions) are strongly challenged by most indigenous peoples whom he has consulted.

Treaties concluded between “European settlers and their successors with Indigenous nations currently continue to be instruments with international status in light of international law.” (para. 275)
Special Rappateur, Martinez, Miguel Alfonso, Study on Treaties, Agreements and Other Constructive Arrangements (Final Report, 1999).
If treaties are solemn compacts between independent nations, and that the rights and obligations of each nation are dependent on the agreement, how is it then that the English Crown can unilaterally assert sovereignty over a given territory prior to a consensual agreement with the prior sovereign nation occupying the territory in question?
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