Mary C. Hurley
Law and Government Division
8 September 1999
Revised 13 July 2000
AND TREATY RIGHTS
By the 1970s, Canadian
courts had begun to acknowledge that Aboriginal peoples occupation
of the land from time immemorial gave rise to legal rights not provided
for by treaty or statute. The constitutionalization of Aboriginal and
treaty rights in 1982 established a new legal framework within which longstanding
Aboriginal claims might be addressed. Section 35 of the Constitution
Act, 1982 did not create rights; the provision recognizes and affirms
the "existing Aboriginal and treaty rights" of the Aboriginal
peoples of Canada, and situates those rights outside the Canadian Charter
of Rights and Freedoms with its section 1 limitation clause. The absence
of terms defining the rights placed the task of interpreting the scope
of section 35 squarely in the judicial sphere.
To date, Aboriginal
rights cases considered by the Supreme Court of Canada have primarily
involved claims to fishing rights in the context of penal charges under
various fisheries regulations. These rulings establish general principles,
while stressing that the outcome in Aboriginal rights cases depends on
findings of fact specific to each case. In 1990, the Courts landmark
Sparrow decision articulated an initial interpretive framework.
Sparrow established that: the term "existing" refers
to rights that are "unextinguished," or extant; section 35 rights
may limit the application of federal and provincial law to Aboriginal
peoples, but are not immune from regulation; the Crown must justify any
proven legislative infringement of an existing Aboriginal right. Under
the Sparrow justification test, the Crown must prove that the infringing
measures serve a "valid legislative objective" - such as natural
resource conservation - and that they are in keeping with the special
trust relationship and responsibility of the government vis-à-vis Aboriginal
peoples. Further questions to be addressed, depending on the circumstances,
include whether the infringement has been minimal, whether fair compensation
has been available in a context of expropriation, and whether the affected
Aboriginal group has been consulted.
Several 1996 rulings
supplemented the Sparrow guidelines. In the commercial fishing
rights trilogy Van der Peet, Gladstone and Smokehouse,
a majority of the Court defined Aboriginal rights as flowing from practices,
traditions and customs central to Aboriginal societies prior to contact
with Europeans; such practices and traditions must - even if evolved into
modern form - have been integral to the distinctive Aboriginal culture.
Dissenting justices and others viewed this approach as unduly narrow,
and as establishing a heavy burden of proof for Aboriginal claimants to
meet. The trilogy also established that the constitutionalization of Aboriginal
rights was intended to reconcile the prior occupation of North America
by Aboriginal peoples with the assertion of Crown sovereignty over Canadian
territory. In the Côté and Adams fishing rights decisions,
section 35 protection of Aboriginal rights was held not to be conditional
on Aboriginal title, or on post-contact recognition of those rights by
colonial powers. In Pamajewon, a case raising self-government issues
in relation to high stakes gambling, the Court ruled that, assuming section
35 covers self-government claims, they are subject to the same analytical
framework as other Aboriginal rights claims.
In December 1997,
the Courts groundbreaking Aboriginal title ruling in Delgamuukw
outlined principles applicable to this category of Aboriginal rights
claim. Although the decision did not resolve the merits of the case before
the Court, Delgamuukw confirmed that common law Aboriginal title
had been fully constitutionalized by section 35, and distinguished Aboriginal
title from other Aboriginal rights based on the connection it represents
between an Aboriginal group and land. The Court saw this aspect as pivotal
in determining the scope of Aboriginal rights. These were described as
falling along a spectrum, with Aboriginal title representing the broadest
entitlement because it confers a right to the land itself.
criteria for proving Aboriginal title (relatively exclusive occupation
prior to Crown sovereignty that has been relatively continuous to the
present), the Court outlined a justification test for infringements of
Aboriginal title based on general principles established in its previous
section 35 decisions. Thus, the range of legislative objectives capable
of justifying infringements of Aboriginal title is relatively broad, while
the nature of the governments fiduciary duty is determined by the
nature of title. The fact that Aboriginal title encompasses the right
to exclusive use and occupation of the land is relevant to the degree
of scrutiny of the infringing measure or action; the fact that it also
encompasses the right to choose how the land is used influences the nature
and scope of the Crowns obligation to consult the Aboriginal group(s)
whose title is infringed; and the fact that title has an economic component
affects the amount of compensation due.
A further noteworthy
aspect of the Delgamuukw decision concerns its confirmation that
courts are required to adapt rules of evidence when adjudicating Aboriginal
rights. That is, they must accommodate the oral histories of Aboriginal
societies, which may provide the only record of their past, and place
such histories on an equal footing with documentary historical evidence.
The Supreme Court
of Canadas relatively few section 35 treaty rights decisions to
date interpret the scope and modern status of hunting and fishing rights
provisions in historic land-related or "peace and friendship"
treaties. These questions typically arise, as in Aboriginal rights cases,
in relation to penal charges under provincial legislation prohibiting
hunting or fishing activities that are claimed, in defence, as treaty
rights. And, as in Aboriginal rights cases, the Court has emphasized the
importance, in deciding section 35 treaty rights cases, not only of respecting
general interpretive principles, but also of a contextual, case-by-case
In its 1996 and
1999 hunting rights decisions in R. v. Badger and R.
v. Sundown, the Court reviewed applicable principles of treaty
interpretation under which:
are sacred agreements in which exchanges of solemn promises are made
and mutually binding obligations created;
the honour of the Crown is always at stake in its dealings with Aboriginal
peoples, treaty interpretation having an impact on treaty rights must
be approached so as to maintain the Crowns integrity, based
on the assumption that the Crown intends to fulfil its promises;
ambiguities are to be resolved in favour of Aboriginal peoples, and
restrictions of treaty rights narrowly construed, while the Crown
bears the burden of strict proof that a treaty right has been extinguished
based on evidence of a clear government intention to do so;
treaty rights, like Aboriginal rights, are not absolute, it is equally
if not more important to justify prima facie infringements
of treaty rights, in most cases under the test developed by the Court
in relation to infringement of Aboriginal rights discussed above;
rights are specific and may be exercised only by the First Nation(s)
that signed the treaty in question.
In the Courts
September 1999 fishing rights ruling in R. v. Marshall,
the application of these interpretive principles and factual considerations
resulted in confirmation of unextinguished treaty rights for Mikmaq
and Maliseet First Nations in the Atlantic provinces and Québec and ensuing,
persisting controversy as to how and by whom these rights might be exercised.
of section 35 is still in its relative infancy. Numerous questions as
to the scope of "existing Aboriginal and treaty rights" remain
to be resolved. Issues relating to Aboriginal title, such as the timing
and extent of governments duty to consult Aboriginal peoples, to
the scope of governmental authority to regulate the exercise of treaty
rights, to the inherent right of self-government, and other matters of
fundamental concern to Aboriginal peoples, come before Canadian courts
The question of
how expansive section 35 protection must be in order to foster a just
settlement for Canadas Aboriginal peoples remains a subject for
debate. Some take the view that a broad approach may lead to inequality
of treatment among Canadians, or other consequences perceived as negative
from a public policy perspective. Others are concerned that a narrow approach
by government or the judiciary risks stripping the constitutionalization
of Aboriginal rights of substantive effect. These issues are likely to
continue to be raised in the political and judicial spheres for some time
Allain, Jane May.
Aboriginal Rights. CIR 89-11E. Parliamentary Research Branch, Library
of Parliament, Ottawa.
Allain, Jane May.
Aboriginal Fishing Rights: Supreme Court Decisions. BP-428E.
Parliamentary Research Branch, Library of Parliament, Ottawa, October
Hurley, Mary C.
Aboriginal Title: The Supreme Court of Canada Decision in Delgamuukw
v. British Columbia, BP-459E.
Parliamentary Research Branch, Library of Parliament, Ottawa, revised