#9155 - Treaties - Aboriginal Law

Treaties

Origins of Rights

• basis of s. 35(1) treaty rights is post contact relations; they didn’t exist pre-contact (Marshall 2)

• part of CL and constitutional law: law of Ks, protection enshrined in s. 35(1)> gives recognition historically awarded in colonial times

Scope, Nature of Rights (Sparrow)

• are sui generis

• scope is generally within terms of treaty, but can include reasonably incidental activities (Sundown, Marshall 2); can include enforcement of rights not recorded via implied rights (Marshall 1)

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

• protection of traditional activities only (Marshall/Bernard)

• treaty rights can evolve over time if essential character is the same (Bernard/Marshall, Marshall 1)

• must have been contemplated by parties at the time of signing (Bernard/Marshall)

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

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

Interpretative Approach

• traditional, narrow approach shifted w White and Bob (1964); Simon (1985): now we take a liberal interpretation, w ambiguities resolved in favour of FN; ct looks for mutually bound intent est, examines parties conduct

• rights are not frozen: must be interpreted as an evolving, adapting to new contexts (Simon, Sundown, Marshall 1)

• reflects purposes of s. 35(1) rights protections: recognition of prior occupancy and reconciliation of sovereignties (VDP)

  • ct should choose interpretation that favours reconciliation (Marshall 1)

• honour of the crown is at stake in upholding promises (Badger; Marshall 1)

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

• CRITIQUES of espoused commitment to incorporating FN rights:

  • 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

Interpretative Principles

Factors to Apply to Interpret Historic Treaties (Marshall 1, dissent, based in many principles from Badger):

1. Treaties are unique

2. They should be liberally construed, ambiguities should be interpreted in favour of FN

3. Goal is to choose interpretation which reconciles both interests of parties at time of signing> assess if:

-the right was contemplated at the time of signing (Marshall II; Bernard/Marshall)

4. In searching for common intention, the honour of cr is presumed

-factors to analyse historical background, esp in determining intent to enter into a treaty (Sioui):

-continuous exercise of a right in past or present

-reasons why Cr committed

-situation prevailing at the time document was signed

-evidence of relations of mutual respect bw parties

-subsequent conduct

5. In determining the signatories’ respective understanding and intentions, ct must be sensitive to the unique cultural and linguistic differences bw parties

6. Words should be interpreted to have the meaning at time of signing

7. K’al or technical interpretation should be avoided

8. In liberal interp, cts cannot alter the terms of the treaty or exceed what is realistically possible on the language

9. Rights must not be interpreted in a static way, rights must be updated for modern context, this includes determining what modern practices are reasonably incidental (Sundown)

Limits to Treaty Rights

Generally

- intent of parties at time of signing (Marshall 1)

-can evolve (Simon, Sundown, Marshall 1)

-honour of the crown (Badger; Marshall 1)

-geographical limitation: compatibility w intended land use (Sundown, Badger)

-economic/ commercial limit:

- limited in Marshall (moderate livelihood); Marshall/Bernard (held protection of traditional activities only); Horseman, Sappier/Grey

-historic understanding that treaties were supposed to guarantee autonomy, contradiction as jurisprudence limits commercial rights

Extinguishment

- Sioui > extinguishment must be plain and clear > Sparrow applies:

-proof of extinguishment > onus on Cr

-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:

-surrender: treaty with the crown

-legislation

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

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

-e.g.: NRTA in Badger extinguished the treaty protection of the right to hunt commercially while allowing and expanding the right to hunt for food

-constitutional amendment: never occurred

- 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

Infringement

- language of infringement as in Sparrow, Badger begins to be prominent in treaty rights cases:

-Cote: as imposing a burden

-Sundown: conservation

-Sparrow framework: (onus on FN)

-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)

-examples:

-Kadlak: denial by Minister for Inuit to hunt with a spear PF infringes rights in Land Claims Agreement

-if PF infringement > justification

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

- Sparrow justification test applies (Badger)

-high standard to uphold honour of Cr

-justification required bc of goal of reconciliation

-test:

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

-objectives directed at the purpose of reconciliation, as in s. 35(1)

-examples:

- conserving and managing natural resources (Sparrow)

-prevent the exercise of s. 35(1) rights that would cause harm to the general populace or aboriginal peoples themselves

- public protection/safety (e.g. in Nunavut Tunnagvik, Kadlak, Morris)

- commercial rights- any goal intending on furthering the good of the community as a whole taking into account aboriginal and non-aboriginal interest

-pursuit of economic and regional fairness if no internal constraint (Gladstone)

-non-exhaustive: other objectives may be found to be substantial

-examples of illegitimate objectives:

-enhancement of regional transportation network (Mikisew)

-any justification that is overly vague, e.g. ‘public interest’ (Sparrow)

-sport fishing (Adams)

2. infringement must be consistent with FD:

-scope is contextual: the particular form will be a function of the nature of rights claimed

-4 part test:

1. are the aboriginal...