#9146 - Meta Framework - Aboriginal Law

Meta Framework

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

Rights Claim

1.) describe the right (onus on FN group)

a.) who is claiming the right

-s. 35(2): recognizes status Indians, Inuit and Metis

-still a live issue re claiming rights for non-status

b.) describe the scope of the right:

-aboriginal or treaty right: reasoning by way of analogy: hunting and fishing rights are determined by tests: does the right analogize with this:

• Abo rights: focuses on continuity, pre-contact, distinct, integral to culture; includes Inuit

• Metis rights = usually hunting rights, need to prove part of ancestral community

• Title rights = based in prior occupancy

• Treaty rights = both modern and historic treaties; can include historic context; written document, rules of interpretation

• NRTA could arguably be a treaty or a FN right

-in making in argument about the scope of a right, draw upon inclusion of : there FN legal traditions- reflects interpretive approach as per Delga, VDP

2. Extinguishment (Cr onus) (Sparrow)

-prior to 1982: extinguishment can occur with clear and plain intent (Sparrow), can be inferred if consistent, need not be explicit (Gladstone, S/G)

• extinguishment could potentially occur via:

1. surrender: treaty with the crown

2. legislation

-s. 91(24): right to legislate and extinguish title

- regulatory regime is not a high enough standard to meet extinguishment

3. constitutional amendment: never occurred

4. sovereign incompatibility (Mitchell)

   • if extinguished prior to 1982, then rights are not revived

-feds cannot extinguish existing rights on or after 1982

-prov cannot extinguish after 1871 or thru s. 88 of IA (Delga)

-lack of formal recognition by colonial powers does not = extinguishment (Cote)

-if extinguished, no claim

-if no, govt can only infringe via meeting test of justification

3). Infringement: (FN onus) (Sparrow)

-PF infringement occurs if purpose or effects of state conduct unnecessarily infringe upon rights; can occur unintentionally

-factors: assess if:

- limit is unreasonable

- if it imposes undue hardship

- if it denies the preferred means of exercising the right (Sparrow)

-however, these are not determinative, only need to show a meaningful diminution of the right (Gladstone)

-if PF infringement > justification

4). Justification: (onus on Cr) (Sparrow, Gladstone)

-high standard to uphold honour of Cr

-justification required bc of goal of reconciliation

-note: prov laws of gen application apply (Dyck) but cannot interfere w treaty rights in

significant manner and prov cannot use s. 88 IA in conjunction w Sparrow justification test

(Morris)

-test:

1. infringement must further a legislative objective that is compelling and substantial

-objectives directed at the purpose of reconciliation, as in s....