Section 35 of the Constitution

1. Characterization of the right (determine the appropriate level of specificity)

2. Assertion of sovereignty by the Crown (determine if the right survived – sovereign incompatibility) (Mitchell)

3. Proof of the right

A. 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)

B. Land

• Exclusive occupation of the territory.
• At the time when the Crown asserted Sovereignty over the territory (or effective control – Métis?)

4. Extinguishment (Clear and Plain) (Prior to 1982 and by Federal Government only unless pre-confederation legislation)

5. Infringement (beyond trivial)?

Is the limitation unreasonable?

Does the limitation impose undue hardship?

Does the limitation deny to the holders of the right their preferred means of exercising that right?

6. Justification of the Infringement

• Valid legislative objective?

• Fiduciary Duty Upheld?

• Priority allocation (food fishery) (inherently limited resource right)
• Seriously recognized in the balance of competing interests (non-inherently limited resource rights)

• Consultation

• Fair compensation

This notion is reflected to some extent in Van der Peet where the court acknowledges that the Aboriginal perspective (inclusive of their laws) are to be taken into account. (@ para. 39, 49)

Physical genocide is the mass killing of the members of a targeted group, and biological

genocide is the destruction of the group’s reproductive capacity. Cultural genocide

is the destruction of those structures and practices that allow the group to continue

as a group. States that engage in cultural genocide set out to destroy the political and

social institutions of the targeted group. Land is seized, and populations are forcibly

transferred and their movement is restricted. Languages are banned. Spiritual leaders

are persecuted, spiritual practices are forbidden, and objects of spiritual value are

confiscated and destroyed. And, most significantly to the issue at hand, families are

disrupted to prevent the transmission of cultural values and identity from one generation

to the next.

In its dealing with Aboriginal people, Canada did all these things

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. (Van der Peet, (1996)

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

Aboriginal Rights Analysis

Sparrow (1990)

Pre 1982

Canada’s Multi-juridical nature

Canada’s Desire for Independence

Constitutional Recognition

Political Efforts to Define the Content of s.35

Post 1982

S. 35 of the Constitution and The Sparrow Decision

For some, advocating for recognition within the Canadian constitution is to deny their nation’s separate and independent right to exist.

For others, the practical reality is that Aboriginal peoples are part of Canada whether we like it or not and that to constitutionalize Aboriginal rights would be the next best way of protecting Aboriginal culture and identity.

When the Constitution of Canada was adopted in 1982, s.35 (1) was included which states that the:

Existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

Canada has a long history of Constitutional reform initiatives, yet prior to 1982 never included Aboriginal peoples in those debates.

In 1978 there was a serious attempt to repatriate the Constitution and this momentum was of concern to Aboriginal political groups.

What were some of the concerns at the time?

Section 37 added to require further Constitutional amendment meetings to flesh out the meaning of s.35.

Despite a couple of non-controversial amendments, the section 37 process was regarded as a failure.

- resulting in the courts, which are arguably institutionally ill-equipped, to define more precisely the content of s.35 by default.

The existence and interaction of the common law, civil law and the many Indigenous law systems is evidence of Canada’s deep legal pluralism… .

Canada is not, as is commonly asserted, a bilingual, bicultural, bijuridical nation.

That is a myth.

Despite the independent existence of Aboriginal rights from government recognition (Calder, 1973), they were difficult to assert prior to 1982:

• Judges were often culturally insensitive if not racist.

• Only a common law right, if rights acknowledged at all.

• Federal legislation prevailed.
• Provincial legislation could also prevail if it didn’t infringe on s.91(24) of the Constitution Act, 1982 or if referentially incorporated as federal law under s.88 of the Indian Act.

Larry Chartrand, Fall, 2016

Aboriginal rights can't be framed too broadly such as describing an activity as part of the pre-contact "way of life".

• The pleadings must be specific as to the activity or practice being claimed. The judge is not conducting a free roaming inquiry - this is not the nature of civil litigation.
• The first task is to accurately characterize the claim relying on nature of the action being impugned, the legislation involved and the practice, custom or tradition being relied upon to establish the right

Musqueam (Coast Salish) Traditional Territory

Proving the right ...

Analytical Framework

A New Hope?

Yet basic Racist Premise of Aboriginal- Canadian legal relations Unaltered by s. 35

The Sparrow decision established the general legal framework (steps involved) for interpreting and applying s.35 to Aboriginal right claims.

Sparrow (1990)

Reason for hope that the colonial mindset of existing Canadian legal and political institutions would have to be dramatically changed exists in the decision particularly in the Court’s quote of an article by Noel Lyon:

Section 35 calls for a just settlement for aboriginal peoples. It renounces the old rules of the game under which the Crown established courts of law and denied those courts the authority to question sovereign claims made by the Crown. (@121)

“Existing”

Interpretive Approach

Lax Kw'alaams v. Canada

Defined in relation to historical and cultural use by examining the historical and anthropological evidence of the community. (@ 561)

Thus the court will look to the nature of the practice activity or custom and whether it continues to be a practice that is part of the community's culture to the present. In other words, the onus is on the claimant to show that the practice continues as an important part of the community (Continuity Requirement) (@ 561)

And the traditional use must not be defined strictly to the manner (method) of uses made prior to contact.

Their rights must be allowed to evolve.

Facts:

A Musquem Band member was charged with violating Federal fishing regulations (restrictions) that applied to the Band’s food fishing licence, in particular using a net size larger than that allowed under the licence. (@ 559)

The Band member argued that he had a defence to the charges. What did he argue was his defence? (@ 559)

How does the Court define the term existing?

What was problematic with interpreting “existing” with reference to the regulatory regime in 1982? (@ 559/560)

Although the Court acknowledged that s. 35 sparked a new era in Aboriginal – Canadian legal relations, the Court nonetheless maintained the colonial relationship that has hitherto unjustly underpinned Canadian sovereignty.

British policy towards the native population respected their right to occupy traditional lands, “a proposition to which the Royal Proclamation of 1763 bears witness, there was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, to such lands vested in the Crown" (@ 564)

The Court identified the purpose of s.35 and listed certain general principles of interpretation.

The court recalls the dismal Canadian record in respecting Aboriginal rights and interests and how s.35 “represents a culmination of a long and difficult struggle in both the political forums and the courts for the constitutional recognition of aboriginal rights.” (@ 564/5)

Indeed, the extract from TRC (@ 139) characterizes Canada's policy towards Aboriginal peoples over the last 100 years as a policy of "cultural genocide".

“Purposive Interpretation”

General Guiding Principles of Interpretation

What problems did the court identify in defining existing rights in relation to the space left over once regulations are accounted for? (@ 560)

In Sparrow, the purpose of s.35 is seen as concerned with respect for Aboriginal rights grounded in the “honour of the Crown” through the recognition of a fiduciary “trust-like” relationship. (@ 566)

S. 35 should be given a generous and liberal interpretation.

Interpretation must be defined in light of the historic trust-like relationship as reflected in the Royal Proclamation. “The relationship between the government and aboriginals is trust-like, rather than adversarial” (122)

The Court does not question the unilateral assertion of British sovereignty and ignores any “differences there may be about [the Royal Proclamation’s] judicial interpretation” and the application of international law principles regarding the acquisition of new territories etc., etc., ...

Justification problematic

“Justified Infringement?”

Determine the nature and “scope” of the right

“Clear and Plain Intent”

Existing is defined as “unextinguished”

Are the rights in s. 35 absolute?

Evolution …

The imposition of a justification analysis in the context of competing claims as between “peoples” is problematic as it provides one people with greater authority over another and is inherently inequitable.

It is entirely appropriate when one is speaking of individual rights within a society as against government to restrict their exercise in the name of common societal interests, but it is something entirely different when one speaks of competing interests as between two distinct, but equal peoples.

“Legislation that affects [infringes] the exercise of an aboriginal right will none-the-less be valid, if it meets the test for justifying an interference with a right recognized and affirmed under s.35(1).”

Federal power (e.g. s.91 (24)) must now be reconciled with federal duty under s. 35 (1)

The Court states that one should not confuse regulation of the activity with extinguishment of the underlying right to engage in that activity.

“That the right is controlled in great detail by the regulations does not mean that the right is thereby extinguished”

… “the sovereign's intention must be clear and plain if it is to extinguish an aboriginal right.” (@562)

Note that s.35 is not subject to s. 1 of the Charter and falls outside the Charter and therefore the Crown can’t argue that its interference in the right is justified under s.1.

How does the court then explain that constitutionally protected rights can be limited by inferior legislation? (@ )

Evidence suggested that the Musqueum used Salmon for food, social and ceremonial purposes - indeed Salmon fishing was an integral part of their distinctive culture.

Importantly, the court noted that regulation is not capable of delineating the right ... (@ 563)

The lower courts focused on the significance of the use of salmon for consumption, social and ceremonial purposes and thus defined the scope of the right accordingly, notwithstanding that there was some reference to historical barter or “trade” of salmon.

Has the claimed right been extinguished by government prior to 1982?

What impact does the fact that the exercise of the right (Salmon fishing) has been subject to historically progressive and restrictive fisheries legislation?

How does the court respond to the Crown’s argument that the totality and extent of the regulations is “necessarily inconsistent” with the continued enjoyment of the right and has effectively displaced any aboriginal right? (@562)

What happens when fundamental constitutional rights are in conflict (Quebec Succession Ref?)

However, as the SCC held in Lax Kw'alaams, there are qualitative and quantitative limits on the ability of the Aboriginal right to evolve ...

Arguably a process is needed to reconcile conflict and differences but it must be understood that Aboriginal Rights stand on much different footing than Charter rights. Aboriginal rights are peoplehood collective rights whereas Charter rights are individual rights protections as against the collective.

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)

Morover, in Ahousaht (@ s 144), the BC CA held that if you did not have technology to exploit a resource pre-contact, you can't now use it.

Inherent Right Theory

Contingent Theory

“Justified” Infringement?

2. Honour of the Crown must be upheld (fiduciary duty) must be respected demanding a high standard of justification...

Prima facie infringement?

A Critical Perspective

1. Firstly, is there a valid legislative objective?

“Implicitly denies any assertion of First Nations sovereignty by viewing the existence or non-existence of aboriginal rights … as dependent upon the exercise of Canadian sovereign authority”

Although the right itself is not contingent on the exercise of legislative or executive authority, but instead based on the fact that fishing is integral to Musquem self-identity and culture.

But, the Court unquestionably accepted that the British Crown obtained territorial sovereignty … by the mere fact of European settlement.

Does Sparrow take a contingent rights approach or an inherent rights approach to s. 35?

Aboriginal sovereignty pre-existed the settlement of Canada and continues to exist undiminished by the “interposition of the Canadian state.” (Connolly v. Woolrich?)

But under Sparrow, Aboriginal rights are absorbed into the common law as sui generis rights and therefore can be extinguished by appropriate legislative action (prior to 1982) and infringed upon where justified according to the tests.

To determine whether a justification is valid, the following questions should be taken into account:

Has there been as little infringement as possible?

Has fair compensation been awarded?

Has there been adequate consultation? (@ 570)

What was the result of the case?

The test involves asking certain questions:

Is the limitation unreasonable?

Does the limitation impose undue hardship?

Does the limitation deny to the holders of the right their preferred means of exercising that right? (@ 568)

The particular regulations must be compelling and substantial to be valid.

Arguably, conservation of the resource is valid and so would safety oriented regulations.

In the context of food fishing, in order for the regulations to be valid, the Crown would have to show that right was taken seriously and this would entail establishing an allocation priority scheme:

Conservation,

Indian fishing

Non-Indian commercial fishing

Non-Indian sports fishing

Given the readings from the Treaty historical record of the Elders, however, how is it possible that the Court could so cavalierly say there was never any doubt that sovereignty vested in the Crown…?

The interference must be beyond trivial (Morris, 2006)

(@ 569/7

“I’ll take these lands in the name of the King”

Sparrow affirms the inferiority of Indigenous peoples

Thus,

A contingent rights theory ultimately rests on unacceptable notions about the inherent superiority of European nations….

Does s.35 usher in a new book or just a new chapter in an older colonial book?

the gift of truth and justice continues to remain hidden in the machinations and inherently unjust principles of Canadian "Aboriginal" law.

s. 91 (24) Implications

Tsilhqot'in

The applicability of provincial laws of general application that infringe Aboriginal rights is dependent on such laws applying as per s. 88 of the Indian Act.

Aboriginal Rights

1. Valid legislative objective of a substantial and compelling nature

2. Consultation and accommodation (pre and post claim procedural obligation)

3. Proportionality:

a) rational connection

b) minimal impairment

c) benefits outweigh adverse effects

Aboriginal Title

But, provinces may not be able to infringe Aboriginal title (Williams) because Indian lands are not expressly mentioned in s. 88.

But, Tsilhqot'in (SCC, 2014) has changed this analysis significantly.

In terms of Aboriginal rights, the doctrine of interjursidictional immunity no longer applies making s. 88 of the Indian Act irrelevant insofar as it relates to the immunity doctrine, but is still relevant in respect of paramountcy where treaty rights are being infringed upon by provincial governments. Since s. 88 does not reference Aboriginal rights, however, federal law may not be a factor, unless the federal government enacts relevant legislation.

Damages:

Unproven

Injunctive relief

damages,

or an order that consultation or accommodation be carried out.

Proven:

Usual remedies for breach of an interest in land are available (perhaps adapted if necessary)