Aboriginal Rights Background

By Fred Wynne, University of Alberta LL.B. student

Introduction

Aboriginal peoples of Canada (defined as Indian, Inuit and Métis peoples),[1] possess a unique set of rights enshrined in section 35 of the Constitution Act, 1982 (Constitution).[2] Section 35(1) recognizes and affirms “[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada.”[3] Aboriginal rights are recognized to have existed before the arrival of Europeans in Canada.

The application of section 35 of the Constitution was explained in the case of R. v. Sparrow.[4]Ronald Sparrow, a member of the Musqueam Band, was caught fishing with a net longer than permitted by the band’s fishing licence under the Fisheries Act. He admitted to all of the facts in the charge, but justified it by arguing that he was exercising his aboriginal right to fish under section 35. The issue before the Supreme Court of Canada (SCC) was whether this restriction on fishing net length violated section 35(1) of the Constitution Act, 1982. In an unanimous decision, the SCC concluded that Sparrow was in fact exercising an “inherent” aboriginal right - one that existed before the provincial legislation and that was protected by section 35.[5] The Court affirmed that to claim an aboriginal right under section 35(1), a person must be acting under a protected ‘existing aboriginal right’, meaning a right recognized before the Constitution Act, 1982 came into effect. Before 1982, aboriginal rights could be extinguished by acts of government. Section 35(1) of the Constitution was introduced to limit government interference and strengthen these rights. Presently, the government may only restrict aboriginal rights if it is justified in doing so.[6] Moreover, the government owes a fiduciary duty[7] (the highest duty known in law highlighted by good faith, loyalty and trust) to aboriginal peoples and is therefore obligated to act fairly when dealing with aboriginal matters.[8]

Aboriginal Cultural Rights

As stated in the case of R. v. Van der Peet, aboriginal rights include the right to engage in activities, specifically the ability to perform the traditional activities and customs of aboriginal peoples as practiced before European contact.[9] Dorothy Van der Peet, a member of the Sto:lo Nation, was charged for selling salmon that she (or her common law spouse) had lawfully caught under the authority of an Indian fish food licence. The Fisheries Act restricts the sale of fish for commercial purposes. At issue was whether the law preventing the sale of fish infringed Van der Peet’s aboriginal rights under section 35 of the Constitution Act, 1982. The SCC held that aboriginal fishing rights did not extend to commercial selling of fish because this practice was not part of the distinctive culture of the aboriginal group asserting the right.[10]

Aboriginal rights are communal rights, shared by all members of an aboriginal group rather than being specific to an individual person. Because of this common nature, aboriginal rights are not defined the same way as the individual common law rights shared by all Canadians, such as the right to vote, freedom of religion, or freedom of expression.[11]

Many aboriginal rights are cultural rights. The purpose of section 35(1) of the Constitution is to reconcile aboriginal peoples’ rights to traditional customs and practices with European law and the present-day rule of the Crown.[12] Cultural rights include the activities practiced by all aboriginal peoples in general and certain aboriginal groups in particular, for example the right to speak indigenous languages and the right to perform traditional customs such as dances, songs and ceremonies. Rights particular to certain aboriginal groups depend upon the historical practices and customs of each group. This includes, for example, the right to fish or hunt in a certain area regardless of whether or not one has title to that land. Cultural activities such as hunting, fishing, language and art are the most basic type of aboriginal rights, and may exist without aboriginal title to land. In order to establish that an activity is an aboriginal right, it is necessary to prove that the Aboriginal group bringing the claim practiced this activity, tradition or custom and that it was culturally important at the time of European contact.[13]

Aboriginal Title & Land Rights

While aboriginal rights and aboriginal title are related, they can exist independently of each other.[14] Aboriginal title is a type of aboriginal right[15] that applies to land.[16] In other words, claims of aboriginal title are land claims. Aboriginal title does not have to be proven to give rise to aboriginal rights, but in considering aboriginal rights it is important to consider aboriginal title.[17] These two sets of rights are separate because historically many aboriginal societies were nomadic and did not stay on any single piece of land.

Aboriginal title exists at common law because aboriginal peoples occupied land in Canada prior to the arrival of Europeans.[18] Because possession is proof of ownership, the key to establishing aboriginal title is to establish possession of the land.[19] For the purpose of claiming aboriginal title, possession is defined as use and occupancy of the land in question since before the imposition of British law in Canada.[20] The legal test to prove aboriginal title was set out in the case of Delgamuukw v. British Columbia[21]. The Delgamuukw proceedings were started in 1984 by the Gitxsan and the Wet’suwet’en Nations. They claimed ownership and legal jurisdiction over 133 individual territories (a total of 58,000 square kilometers of northwestern B.C.). These Nations by-passed the slow Federal Land Claims process in which the B.C. government would not participate. The Province insisted that all First Nations land rights in B.C. were extinguished by the colonial government before it became part of Canada in 1871. The SCC made no decision on the land dispute itself, but did address the issue of aboriginal title. For the first time, the Court said that aboriginal title is a right to the land itself (rather than a mere right to use land for traditional purposes). In essence, Aboriginal title is a property right that goes much further than aboriginal rights of usage. It is like ordinary land ownership and affords many of the same privileges (e.g. the right to exclude others, extract resources, etc). But it is also unique in that it is a communal right, meaning that an individual cannot hold aboriginal title. Moreover, Delgamuukw states that although aboriginal title gives a right to exclusive use and occupation of land, it must be used in a way that is compatible with its traditional purpose and uses.[22] Aboriginal title is also unique in that it has the additional protection of being a constitutional right, and can only be sold to the federal government.[23]

Treaty Rights

Treaty rights are subject to the terms of treaties signed between aboriginal groups and the Crown, or federal government. They are another distinct group of rights under the broader heading of aboriginal rights. These treaties may have been entered into with the colonial European nations, or with the present-day government. Treaty rights vary from agreement to agreement and from group to group, depending on the terms of each treaty. No two treaties are exactly the same. Treaty rights are also protected by section 35(1) of the Constitution Act, 1982.

According to the Sparrow[24] case, treaties made with aboriginal groups cannot be interpreted the same way as legal agreements between individuals (such as contracts). In order to interpret treaties properly, they must be considered in the context of the time when the agreement was made. This is often difficult since the written records may be ambiguous or may only reflect the terms that were important to the European settlers or Crown representatives. Due to the special fiduciary relationship between the Crown and aboriginal peoples, terms of treaties must be interpreted in a liberal and generous manner. In other words, treaty terms are not only limited to those written in the original document. The case of R. v. Marshall[25] states that terms may be implied even when the written document is clear and unambiguous. Treaties must be looked at through the eyes of the aboriginal group at the time of the signing of the treaty. This rule recognizes that oral terms (considered important by aboriginal peoples) were not always recorded in treaties by the European drafters. The fiduciary obligation owed to aboriginal peoples by the Crown requires consideration of all terms that may have resulted in the treaty. The Court must then reconcile the interests of aboriginal peoples with those of the Crown.

Besides providing extra protection for established aboriginal rights, treaties can also recognize new aboriginal rights. Once an aboriginal right is enshrined in a treaty, that right applies to the aboriginal group in question and is not subject to the legal tests laid out in Delgamuukw and Van der Peet.[26]

Conclusion

Aboriginal rights are constitutional rights. The government has a special relationship with aboriginal peoples and is bound to consider aboriginal interests. Although aboriginal rights may be limited by government, these restrictions must be justified according to the criteria set out in Sparrow. The rights of aboriginal peoples include land rights and rights to cultural practices such as hunting, fishing, and other customs. Treaty rights give some idea of the rights of aboriginal groups, but do not provide an exclusive list.

Further Reading

• Mark Walters, “British Imperial Constitutional Law and Aboriginal Rights: A Comment on Delgamuukw v. British Columbia” (1992), 17 Queen’s L.J.350.
• Brian Slattery, “Understanding Aboriginal Rights” (1987), 66 Can. Bar Rev. 727.
• Brian Slattery, “Making Sense of Aboriginal and Treaty Rights” (2000), 79 Can. Bar Rev. 196.
• “Canadian Native Law Cases – Case law 1763-1978” University of Saskatchewan
• "A Brief Introduction to Aboriginal Law in Canada" Bill Henderson Virtual Law Office
• “Aboriginal Rights and Title in Canada After Delgamuukw: Anthropological Perspectives” Aboriginal Rights and Title
• Aboriginal Law and Legislation
• "First Nations Treaties, Law, and Land Claims Theme Page" Community Learning Network
• “Aboriginal Rights” The Canadian Encyclopedia
• Action for Aboriginal Rights
• Centre for Indigenous Sovereignty
• "Background To The Constitutional Talks" Saskatchewan Indian
• "Right to Aboriginal Self-Government Already in Constitution" Saskatchewan Indian (August-September 1993)
• "Towards a Metis Nation Constitution" Metis Nation
• "Native Studies" University of Alberta Libraries
• Metis Rights in the Constitution
• The Metis Nation of Alberta
• Kespu’kwitk Metis Council of Yarmouth and District

Government Websites

• Indian and Northern Affairs Canada
• Jane May Allain, “Aboriginal Fishing Rights: Supreme Court Decisions” Library of Parliament (October 1996)
• “Aboriginal Rights” Canadian Human Rights Commission
• BC Treaty Commission
• “Aboriginal Canada Portal” Government of Canada
• “Treaty Policy Directorate” Indian and Northern Affairs Canada (26 July 2006)
• “First Nations Land Management Act” Indian and Northern Affairs Canada (23 April 2004)