#9153 - Aboriginal Rights - Aboriginal Law

Aboriginal Rights

Interpretative Approach to s. 35 (Sparrow)

• rights are not frozen: must be interpreted as an evolving, adapting to new contexts

• the court must take a purposive, liberal approach to ensure rights claims are not static: must look at the analysis in light of the underlying reasons behind se. 35(1) rights protections: recognition of prior occupancy and reconciliation bw aboriginal peoples living in distinctive societies, with their own practices, traditions and cultures, and the sovereignty of the crown (VDP)

• hence there is a generous and liberal interpretation in favour of aboriginal peoples

• this stems from the fiduciary relationship between aboriginal people and the crown

• takes into account the aboriginal perspective to determine the meaning of the right at stake

• CRITIQUES of espoused commitment to incorporating FN rights:

  • This is limited as the perspective must be framed in terms that are cognizable to the Canadian legal and constitutional structure which such is the decision in Marshall and Bernard, are not serving reconciliation very well

  • There is a question on how it is to be cognizable to the Canadian system of common law, especially if common law can change and be fluid and dynamic, and is supposed to include ‘customary’ law

  • True reconciliation is supposed to align the two systems together, so fitting one into the other is not reconciling

  • Macklem and Ash: cts relying on an contingent as opposed to inherent approach to rights, e.g. in Sparrow

Origins of Rights (Sparrow)

• basis for s. 35(1) rights do not come from the constitution; they existed prior to CA 1982; existed pre contact

• rights exist because they come from aboriginal law, governance, practices and traditions

• rights were independent and existing and did not depend on the recognition of them by Canadian authorities (Calder, Cote, Adams, VDP)

• they exist in Canadian law not because of governmental recognition but because they were not extinguished or conquered

• part of common law and constitutional law

• rights were affirmed through the original treaty process

Scope, Nature of Rights (Sparrow)

• aboriginal rights cover a spectrum of rights from practices, traditions and customs, integral to the distinctive cultures of aboriginal peoples to activities that must take place on the land which confer to the land itself (title), or rights that fall on a spectrum with respect to their degree of connection to the land (VDP)

• are sui generis

• scope and content not determined by govt reg

• govt can regulate s. 35 rights but regulation must meet s. 35 standards for infringement

• not subject to s. 1 of the CH, but not absolute, must be read w federal powers

• can be both procedural (e.g. consultation) and substantive (e.g. hunting) (Mikisew)

• can be freestanding or site specific

• “existing” means unextinguished: constitutionalization does not revive extinguished rights

Test (Sparrow as elucidated in VDP)

1. Requirements of Establishing a Right (onus: FN)

-test to identify whether an applicant has established a right protected by s. 35(1) (Sparrow):

-i. unextinguished (see below)

-ii. consistently exercised

-iii. the activity must be an element of a practice, custom or tradition integral to the

distinctive culture of the aboriginal group claiming the right

-10 guidelines for defining “integral to distinctive culture:” (VDP)

1. perspective of FN must be given = weight to CL:

-in order to reconcile sovereignty w prior occupation

-lt: FN perspective or law must be cognizable

2. precise nature of the right must be identified:

-significance of the practice must be delineated

-3 factors:

1. nature of the action, as described by the claimant

2. nature of the legislation or governmental action alleged to infringe the right, either via purpose or in effect

3. the ancestral tradition or practice relied upon to establish the right

-the activity in question must be an expression of the right claimed (Mitchell)

-the rights claim must be specific and not general, must identify the exact nature of the activity (Pamejawon- no general right to self govt)

-do not characterize the right as a right to a particular resource bc that would make the right look like a CL property right, while FN rights are sui generis (S/G)

-examples:

-Sparrow: exchanging fish for money

-Sappier and Gray: the right to use a resource for a particular use as a member of a FN community

2. practice must be of central, defining significance:

• “but for” the cultural would not be the same

• the right must be more than an aspect of the culture, must be essential to the culture

• must identify distinctive features

• significance doesn’t define the nature of the claim but helps identify if its integral to that culture

• cannot be occasional to that society

• cannot be true of every culture

• not met in VDP: commercial fishing not integral

3. practice, custom or tradition which constitutes an aboriginal right must have the continuity with practices prior to contact:

• pre contact used bc:

  • instead of Cr sovereignty, pre-contact reflects that rights are based in prior occupation (VDP)

  • necessary to identify pre-contact context upon which the claim is founded in order to consider how it may have evolved to its present day form> reflects goal of avoiding frozen approach to rights interpretation that ancestral rights may find modern expressions (Sappier/Gray)

  • reconciliation is achieved by understanding the distinctive way of life that existed pre-contact, highlights sovereignty (Sappier/ Gray)

• does not have to be an unbroken chain with the past

• can be interpreted flexibly to permit the evolution of the right over time, bc of historic injustices

• bc of evidentiary difficulties, can rely on post contact evidence

• ancestral rights may be able to find their modern form (Mitchell)

• Sappier and Gray:

  • the nature of the practice must be considered in the context of the pre-contact distinctive culture of the particular community

  • the nature of the right must be determined in the light of present day circumstances

  • the practice and the use of the resource must be allowed to evolve so as not to freeze the right in its pre contact form

  • need to avoid the risk of reducing a culture to stereotypes (attempted to respond to criticism of VDP)

• examples:

  • the right to harvest wood for the construction of shelters must be allowed to evolve into a right to harvest wood by modern means to construct a modern building (Sappier and Gray)

  • not met in Pamajewon: gambling not integral or distinct in pre-contact times

• analysis:

  • pre-contact reqmt arbitrary as is not referenced in s. 35(1)

  • relegates FN to past

  • contradicts commitment to non-frozen rights approach (LHD- dissent- VDP)

  • instead, only limiting factor should be that it is fundamental practice for continuous period of 20-50 yrs (LHD- dissent- VDP)

  • raises potential stereotyping via its inability to give broad recognition to commercial rights, especially individual rights, reifies trope of FN as non-economic, communal, living in harmony w nature, etc.

  • arguably denies Metis rights, but majority asserts it can accommodate them in a future case (was addressed in Powley)

- commercial rights:

• examples:

  • Sparrow: right confined to fishing for sustenance only

  • VDP: prior to contact, no regularized trading system, only trade with HBC, which is not a custom pre-contact, the exploitation was not specialized, not an integral practice to the culture

  • Gladstone: pre-contact commercial fishing practice recognized bc held not to be Euro derived

  • Mitchell: no individual right to sell, trade or barter wood bc right is determined to be based in domestic use that is integral to the community and no evidentiary basis in pre-contact life

  • Sappier and Gray: held no commercial element to use of timber

  • Lax Kw’alaams: no right to commercial salmon trade bc pre-contact trade was not distinctive

• analysis:

  • as test is in a Eurocentric framework it is not highly amenable to recognizing commercial rights (reflected in VDP, S/G)

  • as highlighted in Mitchell, the test protects rights integral to the community: communal rights will be hard to reconcile with commercial individual rights for sales

  • arguably relies on stereotype of FN as collective, outside of economy

4. recognition of evidentiary difficulties:

-burden is on FN claimant

-oral histories admissible (Delga) but evidence must be comprehensible to CL

-problem with the VDP test and evidence (Sappier and Gray):

- court must draw necessary inferences about the existence and integrality of a practice when direct evidence is not available

-flexibility is also important with regards to the time frame (when taking oral histories into account the court was flexible re whether the evidence went to pre contact practices)

-post contact practices can be used to prove the integrality and existence of pre contact practices

5. rights established for specific group cannot be generalized to all groups:

-existence of the right will be determined in specific context of the claimant

-cts treatment of rights re survival:

-no basic right to sustenance (Sappier/ Grey)

-however the traditional means by which to get sustenance, meaning the pre-contact practices relied on for survival can be integral to the distinctive culture (all about framing) (Sappier/ Grey)

-no authority that a practice that is undertaken to survive in a culture cannot be claimed concurrently as a right; rather, there is a weight in favor of protecting that right which is in line with the purpose of s. 35, which is preserving the integral and defining features of...