The Grand Council of the Crees

Role of the Canadian Courts in Aboriginal Rights

Role of the Canadian Courts in Aboriginal Rights

Posted: 0000-00-00

Since the early 1970s when they were confronted by the decision of the Quebec government to build a huge hydro scheme in traditional Cree hunting grounds, the Crees of northern Quebec have taken a leading role in defence of their rights through the Canadian legal system. This Cree decision to use Canadian Courts in defence of aboriginal rights first arose in response to the fact that aboriginal rights were totally ignored by the Quebec government when the hydro scheme was planned. Since Aboriginal people in most of Quebec had never entered into any treaties with the Euro-Canadian powers in Canada, they considered they still had rights of ownership over their traditional lands. So the Crees and Inuit of northern Quebec in 1972 went to Court seeking an injunction to halt work (that had already begun) on the James Bay hydro-electric project. The resultant Court case was a landmark in Canadian legal history. The Quebec government lawyers went into Court arguing that they had no case to answer, that aboriginal rights had never existed in the province, and so far as they had been mentioned in other parts of Canada were too vaguely defined to have any meaning. Quebec Superior Court Justice Albert Malouf, however, decided there was a case to answer, and spent almost six months hearing evidence from Cree and Inuit hunters about their relationship with, attitude towards, and contemporary use of, the land. The case was the first in Canadian history in which a cohesive group of people, in this case Cree and Inuit hunters, argued that the integrity of the environment was essential to their survival as peoples. Justice Malouf found in favour of the Crees and Inuit. He ordered work on the project to be stopped, and Quebec to cease trespassing on the Cree and Inuit lands. His judgment was overturned quickly by the Quebec Appeal Court, but the Malouf judgment had such weight that it forced the Quebec and Canadian governments to negotiate a treaty (or, as it was eventually called, the (James Bay and Northern Quebec Agreement) which was signed in 1975.This use of the Courts was a comparatively new thing for Aboriginal people in Canada at that time. Unlike the United States, which had built up a huge body of Aboriginal case law, Canadian Aboriginals did not use the Courts much until the late 1960s. But since then, they have succeeded in forcing from Canadian Courts a wide range of recognitions of Aboriginal rights as they pertain to the lands that Aboriginals have occupied since long before Europeans ever set foot on the continent. The Royal Commission on Aboriginal Peoples, which reported to the federal government late in 1996 after a five year review of the whole field, contains in its first volume (of five) a concise description of the most important cases, their meaning for Aboriginal rights, and the principles they have established. Since these cases have not been so clearly explained elsewhere, we have decided to reproduce them here for the benefit of those who may be interested.This section is taken from Chapter 7, Volume 1 of the Royal Commission's report, a chapter that gives an overview of the most significant political and legal events pertaining to aboriginals since 1969.

From Chapter 7, Volume 12. The Role of the CourtsIn the period between the onset of the civilizing and assimilation policies, described in earlier chapters, and the present era, we have seen how Aboriginal people were treated as wards of the Canadian state and were subjected to various oppressive, unfair laws and policies. The clear goal of these policies and practices was to eradicate Aboriginal peoples as distinct peoples within Canada.Although they did not cease to assert their distinctiveness in the face of Canadian Aboriginal policy during this period, Aboriginal peoples had little incentive or opportunity to go to Court to vindicate their Aboriginal and treaty rights. There were many reasons for this, including the fact that some Aboriginal peoples -- holding steadfastly to their original nation status -- often refused to admit that non-Aboriginal Courts had any jurisdiction over them. In other cases, Aboriginal peoples simply had no confidence that Canadian Courts would be willing to recognize their rights or to enforce them against the federal or provincial governments.During this earlier period of Canadian history, it will be recalled, the doctrine of parliamentary supremacy was accepted by legislators and judges without question. This was also the period when Canadian Courts were in the grip of a positivist philosophy of the law, as a result of which their focus was less on whether legislative measures were "just" than on whether they were "legal" in the narrower sense.20 Moreover, unlike today, there was no bill of rights or charter of rights and freedoms against which to assess federal or provincial legislation. Thus, measures such as the oppressive provisions in the Indian Act or the manner in which the Métis land grants were administered under the Manitoba Act would have been difficult for Aboriginal people or others to attack.Even where Aboriginal people might have wanted to go to Court, many obstacles were put in their way. For example, after 1880 the Indian Act required federal government approval for Indian people to have access to their own band funds. This made it difficult for bands to organize, since they would require the approval of the Indian agent to get access to sufficient funds to travel and meet among themselves. There is considerable evidence of the extent to which Indian affairs officials used their control over band funds deliberately to impede Indian people from meeting for these purposes.21In addition, as described later in Chapter 9, between 1927 and 1951 it was actually an offence under the Indian Act to solicit funds to advance Indian claims of any kind without official permission. Moreover, it was hazardous in other ways to attempt to organize or to bring legal proceedings against the federal government. This was certainly the experience of F.O. Loft, who was defamed by the deputy superintendent general of Indian affairs, repeatedly investigated by the RCMP at the instigation of Indian affairs officials, and even threatened with enfranchisement because he proposed to bring a legal action to test the constitutionality of provincial game laws in light of treaty hunting, fishing and trapping guarantees.22With the notable exception of leaders like Loft, most Aboriginal people during the historical period we have characterized as "displacement" were poor, largely uneducated and unsophisticated in the ways of the non-Aboriginal society around them. They tended to rely on the structures and processes of the Indian affairs department, in the case of Indian people, on the RCMP and missionary societies in the case of Inuit, or on provincial institutions in the case of Métis people. Many Aboriginal people, in addition, still lived in physically remote or northern locations, far from the institutions of mainstream Canadian society. To this physical remoteness must be added the fact that Canadian institutions were, and indeed often remain, culturally and spiritually remote. In light of these factors, the Courts did not play a positive role in the struggle of Aboriginal peoples to assert and defend their rights until relatively recently.The vast majority of non-Aboriginal Canadians who have given any thought to the matter would probably acknowledge that Canada's Aboriginal peoples have not been accorded their proper place in the life and constitution of this country. Some might say that this is attributable to deep-seated racism; others might say, more charitably, that it is the result of the paternalistic, colonial attitude we have described, the goal of which was to indoctrinate the original inhabitants of Canada into the ways of non-Aboriginal society and make them over in the image of the newcomers. Whatever the explanation, it seems clear, as a judge of the British Columbia Supreme Court has acknowledged, that we "cannot recount with much pride the treatment accorded to the native people of this country."23There is yet another reason why the Courts have played a relatively limited role until recently in the articulation of a balanced approach to Aboriginal and treaty rights within the Canadian federation. The common law of England -- the law administered in Canadian Courts in all provinces except Quebec -- was wholly unable to comprehend the view that Canada's First Peoples had of the world and of their unique place in it. The inability of Canadian Courts to recognize or to reflect Aboriginal concepts, of course, owes a great deal to the difference in culture and perspectives between Aboriginal and non-Aboriginal people. In retrospect, it is clear that English and French legal concepts are not universal; they spring from and reflect the distinctive cultures and traditions of Great Britain and France. Although these concepts have undergone considerable expansion and refinement since they were transplanted to North America,24 the fact remains that for many generations, Canadian judges and government officials were simply unable to accommodate the concepts of Aboriginal or treaty rights in the legal framework with which they were familiar.Even today, the Courts have difficulty reconciling Aboriginal concepts with Euro-Canadian legal concepts. Thus...they have been forced in recent years to describe the legal aspects of the overall relationship between Aboriginal peoples and mainstream Canadian society as being sui generis. This Latin term means that the matter in question is in a category of its own and that it is unwise to draw too close analogies with similar matters in other areas of the law. In this way, since the early 1980s Courts have tried to be sensitive to the uniqueness of the legal concepts that have emerged as a result of the evolution of the relationship between Aboriginal peoples and non-Aboriginal society without undermining the existing legal framework of the Canadian federation.However, the Courts have not always been so sensitive to the uniqueness of the Aboriginal perspective and the need to accommodate it within the Canadian legal framework. For example, the early efforts of Canadian Courts and the judicial committee of the privy council in England (to which decisions of the Supreme Court of Canada could be appealed until 195225) to fit the unique relationship of Aboriginal peoples to their land into the common law concept of property resulted in a distortion of the traditional approach of Aboriginal peoples to their lands. Aboriginal people do not use terms in their own languages that connote "ownership"; they describe themselves rather as "stewards" of their traditional territories, with a responsibility to the Creator to care for them and every living thing on them. They tend to focus on the respectful use of lands and resources rather than Dominion over them. George Manuel has described the spiritual relationship between Aboriginal peoples and the land as follows:

Wherever I have traveled in the Aboriginal World, there has been a common attachment to the land.

This is not the land that can be speculated, bought, sold, mortgaged, claimed by one state, surrendered or counter-claimed by another....

The land from which our culture springs is like the water and the air, one and indivisible. The land is our Mother Earth. The animals who grow on that land are our spiritual brothers. We are a part of that Creation that the Mother Earth brought forth....

Although there are as wide variations between different Indian cultures as between different European cultures, it seems to me that all of our structures and values have developed out of a spiritual relationship with the land on which we have lived.26

Unfortunately, Canadian Courts were unable or unwilling to incorporate the perspective of Aboriginal peoples within existing British and Canadian land law. Thus, they simply adopted the "discovery doctrine" discussed in earlier chapters, asserting that legal title and ultimate "ownership" of Aboriginal lands in North America either became vested in the Crown at the moment of discovery by British explorers, or passed from the "discovering" French king to the British Crown upon France's 1763 cession of its North American possessions to Great Britain. Under the discovery concept the newcomers thus became the "owners" in terms of their own legal framework. The original Aboriginal inhabitants who had been living on the land from time immemorial were found to have no real property interest in the land at all; rather, they had a mere "personal" and "usufructuary" right that constituted a burden on the Crown's otherwise absolute title.This was the language used, for example, in the leading early case on Aboriginal title. Thus, in 1888 in St. Catherine's Milling and Lumber Company v. The Queen27 the new Dominion of Canada and the province of Ontario brought to the Judicial Committee of the Privy Council their dispute about which of them was the true owner in Canadian law of lands ceded to the Crown by the Ojibwa Nation from the Treaty 3 area in Ontario. Although the Crown in right of Canada28 had taken the surrender from the Ojibwa in 1873, the province contested the right of the Dominion government to grant a timber licence to the St. Catharines Milling and Lumber Company. The province argued that the Dominion government had no such right because, upon the land surrender by the Ojibwa, the underlying legal title was "cleared" of the burden of whatever land title the Indian people had and reverted to the ultimate owner -- the Crown in right of the Province.29 The Judicial Committee agreed with the province, awarding ownership of the ceded lands to it and agreeing that the Aboriginal interest in those lands had ceased to exist upon surrender.Speaking for the Judicial Committee, Lord Watson characterized the legal nature of the Aboriginal interest in their own lands as "a personal and usufructuary right, dependent upon the good will of the Sovereign." Moreover, Lord Watson attributed the Indian interest solely to the provisions of the Royal Proclamation of 1763, equating it with a grant from the Crown rather than as flowing from the use and occupation of the lands from time immemorial. The Ojibwa signatories of Treaty 3 were not represented in these proceedings and therefore never had a chance to present to the lower Courts or to the Privy Council their views on the nature of their relationship to their own lands.Earlier judicial analysis of the nature of Aboriginal title in the United States had taken a more positive turn, however. Chief Justice Marshall of the Supreme Court of the United States had earlier held, in Johnson v. McIntosh and Worcester v. State of Georgia, that Aboriginal title existed quite apart from the Royal Proclamation. It was a legal right, based on Indian peoples' first occupation of the land, and did not derive from any Crown grant:

They [the Aboriginal inhabitants] were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion...30

Chief Justice Marshall went on to say that, in fact, the discovery doctrine by which European nations claimed Aboriginal lands as their own did not defeat the rights of the Aboriginal peoples already in possession of them, because discovery merely "gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell."31 In the United States, the more liberal approach of the Supreme Court initially gave considerable scope for Aboriginal and treaty rights to evolve in American law. Inevitably, this led to considerable litigation during the nineteenth century and to the many landmark Court decisions that sketched out the contours of Indian law in that country relatively early in its history.In Canada, however, it was a different story. The judgment in St. Catherine's Milling seemed to close off important avenues for Aboriginal peoples to contest Crown claims to their lands or regulations controlling their traditional hunting, fishing and trapping activities. The lack of legal avenues for action, coupled with the restrictive measures discussed earlier in this chapter, led to a long period during which the Courts were seldom called upon to deal with important questions of Aboriginal and treaty rights. Referring to this long period of judicial inactivity, the Supreme Court of Canada summed up this time as one when Aboriginal rights "were virtually ignored":For many years the rights of the Indians to their Aboriginal lands - certainly as legal rights -- were virtually ignored. The leading cases defining Indian rights in the early part of the century were directed at claims supported by the Royal Proclamation or other legal instruments, and even these cases were essentially concerned with settling legislative jurisdiction or the rights of commercial enterprises. For fifty years after the publication of Clement's The Law of the Canadian Constitution (3rd ed. 1916), there was a virtual absence of discussion of any kind of Indian rights to land even in academic literature. By the late 1960s, aboriginal claims were not even recognized by the federal government as having any legal status. Thus the Statement of the Government of Canada on Indian Policy (1969), although well meaning, contained the assertion that "aboriginal claims to land...are so general and undefined that it is not realistic to think of them as specific claims capable of remedy except through a policy and program that will end injustice to the Indians as members of the Canadian community". In the same general period, the James Bay development by Quebec Hydro was originally initiated without regard to the rights of the Indians who lived there, even though these were expressly protected by a constitutional instrument...32The process of developing the modern legal framework for the articulation of Aboriginal rights began in 1965, when the Supreme Court upheld the treaty hunting rights of Indian people on Vancouver Island against provincial hunting regulations in R. v. White and Bob,33 affirming the majority decision of the Court of Appeal. The discussion of Aboriginal rights in the British Columbia Court of Appeal decision is significant, especially the judgment of Mr. Justice Norris.34 For the first time in recent Canadian judicial history, he considered the overall effect of the Royal Proclamation of 1763 on modern Crown/Aboriginal relations. Unlike the decision of the Privy Council in St. Catherine's Milling, Mr. Justice Norris held that the Royal Proclamation was declaratory of Aboriginal rights -- it did not create them. Thus, he accepted that the Vancouver Island treaties confirmed Aboriginal rights and did not grant them. The effect of his bold judgment was to reintroduce into judicial discourse the whole question of Aboriginal rights and the modern legal effect of treaties.When the Calder35 case came before the Supreme Court of Canada a few years later, the St. Catherine's Milling decision was still the law in Canada: First Nations had Aboriginal title to their lands solely by virtue of the Royal Proclamation, not on the basis of their use and occupation of their own lands from time immemorial. The Nisgia'a people of northwestern British Columbia wanted that changed and brought an action for a declaration that their Aboriginal title to their ancient homelands had never been extinguished.36 Mr. Justice Hall, speaking for three members of the Supreme Court of Canada, held that the Nisgia'a had an existing Aboriginal title based on their original use and occupancy. He relied on Chief Justice Marshall's decision in Johnson. Speaking for the other three members of the Court, Mr. Justice Judson held that, whatever title the Nisgia'a may once have had, it had since been extinguished. He did not, however, reject the concept of Aboriginal title based on original use and occupation. Indeed he stated the very opposite:

Although I think that it is clear that Indian title in British Columbia cannot owe its origin to the Proclamation of 1763, the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means and it does not help one in the solution of this problem to call it a "personal or usufructuary right". What they are asserting in this action is that they had a right to continue to live on their own lands as their forefathers had lived and that this right has never been lawfully extinguished. There can be no question that this right was "dependent on the will of the Sovereign".37

The Calder decision is significant, therefore, for its strong support of the Nisgia'a proposition that Indian title in British Columbia was occupancy-based, not derived from the Royal Proclamation. Some months later the Quebec Superior Court ordered a halt to the James Bay hydroelectric project on similar grounds, namely, that Cree and Inuit Aboriginal title had not been extinguished by the Crown in right of Quebec.38 The injunction was later lifted by the Quebec Court of Appeal, and the Supreme Court of Canada refused leave to appeal the matter further. By then, however, all sides had determined that a negotiated solution was better than continued litigation. The result was the James Bay and Northern Quebec Agreement of 1975.Although several Canadian Courts had an opportunity subsequently to elaborate on the nature and scope of occupancy-based Aboriginal title, few took advantage of the opportunity. In the Baker Lake39 case, however, Mr. Justice Mahoney of the Federal Court of Canada Trial Division held, following Calder, that Inuit of the Baker Lake area of the Northwest Territories had an occupancy-based Aboriginal title to the Baker Lake area and that it was recognized by the common law although subject to being abridged by competent legislation. He set out the elements that must be established as follows:

  1. the claimants and their ancestors were members of an organized society;
  2. the organized society occupied the territory over which they assert Aboriginal title;
  3. the occupation was to the exclusion of other organized societies; and
  4. the occupation was an established fact at the time sovereignty was asserted by England.

Justice Mahoney found that all these requirements were met by the Inuit of Baker Lake. The only remaining question, therefore, was whether their Aboriginal title had been extinguished, either by the transfer of the lands to the Hudson's Bay Company or by the subsequent admission of Rupert's Land into Canada. He found that neither had the effect of extinguishing the Inuit's Aboriginal title, since no clear and plain intention to extinguish Aboriginal rights had been shown on the part of the Crown. The Federal Court judgment was not appealed. This case is important because it indicated clearly that Aboriginal title can co-exist with settlement or development by non-Aboriginal people.In the Guerin case in 1985, the Supreme Court found that the federal government was in a fiduciary relationship with Indian bands and was therefore responsible for the proper management of surrendered reserve lands. The band in question was awarded $10 million in damages as a result of federal mismanagement of lands surrendered for a Vancouver golf course.40 Although analogous to the private law of commercial fiduciaries, the Court characterized the fiduciary relationship between the Crown and Aboriginal people as being sui generis and as having the capacity to evolve as the overall relationship between Aboriginal peoples and Canadian society itself evolved.Importantly, the Court took the opportunity to review the early cases on Aboriginal title, confirming that, by recognizing that the Royal Proclamation was not the sole source of Aboriginal title, the Calder decision had effectively overturned the Privy Council decision in St. Catherine's Milling. The Court held that Indian title is an independent legal right that, although recognized by the Royal Proclamation of 1763, in fact predates it. The Court went on to discuss the nature of Aboriginal title, examining the various cases and the language they had used to describe it. Was Aboriginal title merely a personal and usufructuary right, or was it an actual beneficial interest in the land itself? In short, was it something that could be dealt with by governments at their pleasure, as the St. Catherine's Milling decision had suggested, or was it a real property interest with more serious legal consequences, as some of the later cases had suggested?Mr. Justice Dickson found an element of truth in both characterizations. He rejected the view that Indian title was simply a personal right, stating instead that it too was sui generis, a unique interest in the land that could not be described adequately in terms of English land law. It was personal in the sense that it could not be transferred by Indian people to anyone else. But it was a unique interest in the land because, when surrendered to the Crown, the Crown was not free to do with the land what it liked. Rather, the Crown was under a fiduciary obligation to deal with it for the benefit of the Indians who had surrendered it.The legal community had hardly begun to digest the ramifications of this case when the Supreme Court decided Simon,41 a treaty rights case based on a peace and friendship treaty42 of 1752 between the British Crown and the Mi'kmaq Nation. In an earlier case a Nova Scotia county Court had held the same 1752 treaty to be legally meaningless, basing this on a distinction between a "civilized nation" and "uncivilized people or savages".43 As in the earlier decision in White and Bob, however, the Supreme Court upheld the treaty right against provincial hunting regulations. Significantly, the Supreme Court affirmed the principle that treaties were to be interpreted as Indian people themselves would have understood them and that ambiguous terms were to be construed in their favour.44 Moreover, the Court also emphasized the inappropriateness of drawing too close an analogy between Indian treaties and treaties in international law, stating that an Indian treaty is "an agreement sui generis which is neither created nor terminated according to the rules of international law."45

Referring to the disparaging way the earlier Nova Scotia county Court decision had characterized Indian societies, the Supreme Court also took the occasion to speak directly to the legal community about the judicial attitude toward Aboriginal rights it was fostering:

It should be noted that the language used...reflects the biases and prejudices of another era in our history. Such language is no longer acceptable in Canadian law and indeed is inconsistent with a growing sensitivity to native rights in Canada.46

Another important issue dealt with in Simon was the question of who may claim the benefit of treaty rights under Canadian law. Did a treaty beneficiary have to prove lineal descent from a treaty signatory, or could a beneficiary be a successor in interest? This would include, for instance, someone not necessarily related to the original signing party but who through marriage or adoption became a successor to that party's interest. The Court held that, although descent was the basic rule, evidence of descent other than lineal descent from a treaty signatory might be acceptable, for otherwise it would be too difficult to prove:The evidence alone, in my view, is sufficient to prove the appellant's connection to the tribe originally covered by the Treaty. True, this evidence is not conclusive proof that the appellant is a direct descendant of the Micmac Indians covered by the treaty of 1752. It must, however, be sufficient, for otherwise no Micmac Indian would be able to establish descendancy. The Micmacs did not keep written records. Micmac traditions are largely oral in nature. To impose an impossible burden of proof would, in effect, render nugatory any right to hunt that a present-day Shubenacadie Micmac Indian would otherwise be entitled to invoke based on this Treaty.47In short order the Supreme Court followed up on treaty issues in the 1990 Sioui case.48 At issue was a document that the federal government argued was a mere safe conduct pass issued by British authorities to members of the Wendat (Huron) Nation in 1760. This case goes farther than Simon, expanding the definition of what is considered a treaty in Canadian law. Moreover, it cited the Marshall decision in Worcester v. Georgia to the effect that treaties between European nations and Indian tribes were akin to international agreements, concluding that it was "good policy to maintain relations with them very close to those maintained between sovereign nations" and that "the Indian nations were regarded in their relations with the European nations which occupied North America as independent nations."49 Despite its accent on the international character of certain aspects of Indian treaties, the Court was nonetheless careful not to draw too close an analogy with the international sphere, emphasizing "[t]he sui generis situation in which the Indians were placed" in the context of their relations with the competing European powers.50The immediate issue in Sioui was whether the Indian people of the Lorrette reserve were entitled to practise certain ancestral religious rites in Jacques Cartier Park. These rites involved cutting down trees and making fires, contrary to regulations under the Quebec Parks Act. The 1760 British treaty with the Wendat, often referred to as the Murray Treaty, protected the free exercise of their customs and religion by the Wendat, and it was acknowledged that the Wendat were well settled at Lorrette and making regular use of the territory covered by the park long before 1760. The Crown argued, however, that the rights of the Wendat had to be exercised in accordance with the province's legislation and regulations designed to protect the park and other users of it. The Supreme Court of Canada disagreed, finding in the treaty itself an intention by the Crown and the Wendat that Wendat rights to exercise their customs be reconciled with the needs of the settler society, represented by the Crown, to expand. Thus, confronted with the conflicting interests of the Crown and the Wendat today, the Court preferred to balance their interests as follows:

Protecting the exercise of the customs in all parts of the territory frequented when it is not incompatible with its occupancy is in my opinion the most reasonable way of reconciling the competing interests.51

The Court found that exercise of the rights of the Wendat was not incompatible with the rights of the Crown. The convictions of the Wendat of Lorrette were accordingly set aside.52

In Sparrow,53 a member of the Musqueam Band in British Columbia was charged under the federal Fisheries Act with fishing with a drift net longer than that permitted by the terms of his band's food fishing licence. He was fishing in a part of the Fraser River where his ancestors had fished from time immemorial. The Supreme Court of Canada affirmed what it had said in Guerin, namely that Indian title is more than a personal and usufructuary right -- it is sui generis -- and that the federal government has a responsibility to act in a fiduciary capacity with respect to Aboriginal peoples. The Court pointed out that the relationship between the government and Aboriginal peoples is "trust-like, rather than adversarial, and contemporary recognition and affirmation of aboriginal rights must be defined in light of this historic relationship."54Accordingly, whenever the federal government is exercising its powers under section 91(24) of the Constitution Act, 1867, these powers have to be read after 1982 together with section 35(1) of the Constitution Act, 1982. The federal power, the Court said, must be reconciled with the federal duty, and the best way to achieve that reconciliation is to require that government justify any regulations that infringe Aboriginal rights.55 It must never be forgotten, the Court reminded Canadians, that "the honour of the Crown is at stake in dealings with aboriginal peoples."56In the result, the Supreme Court held that the mere fact that federal fisheries legislation and provincial regulations had controlled the fishing rights of the Musqueam people of British Columbia for many years was not in itself sufficient to extinguish their Aboriginal fishing rights under the constitution. Thus, Aboriginal fishing rights continued, subject to regulation in accordance with the justification standard set out in the case. This was the first case in which the Supreme Court of Canada had an opportunity to consider the effect of section 35 of the Constitution Act, 1982 on federal and provincial legislative and regulatory powers under the Constitution Act, 1867.So, after a long painful process it seemed to Aboriginal peoples that the Canadian Courts had finally recognized Aboriginal title based on long-standing use and occupation, even though they had also affirmed that the Crown had underlying title to Indian lands by virtue of its so-called "discovery" of North America. Moreover, by reaffirming the importance of treaties and the contemporary legal significance of Aboriginal and treaty rights, cases such as those just discussed also seemed to hold out a real promise that the federal government could no longer infringe their Aboriginal rights at will but had to establish that its laws or regulations were compatible with its fiduciary obligations to Aboriginal peoples and could be justified in the context of the Aboriginal rights at stake.It must have come as a tremendous shock, then, in terms of both the substance of the decision and the strong language used, when Chief Justice McEachern of the Supreme Court of British Columbia rejected outright the claim of the Gitksan and Wet'suwet'en to Aboriginal rights over their traditional lands in northern British Columbia in a 1991 case, Delgamuukw v. British Columbia. The hereditary chiefs had brought an action against the province of British Columbia alleging that from time immemorial they and their ancestors had occupied and possessed approximately 22,000 square miles of northwestern British Columbia. As a result, they claimed unextinguished Aboriginal title to their own territory and the right to govern it by Aboriginal laws. They also claimed damages for the loss of all lands and resources in the area transferred to third parties since the establishment of the colony.An unfortunate aspect of this case was the language used by Chief Justice McEachern to describe Gitksan and Wet'suwet'en life and social organization before contact. The use of terminology reminiscent of the language deplored by the Supreme Court of Canada in the Simon case continues to arouse anger and indignation among Aboriginal people and fuels the distrust of the Canadian justice system often voiced by Aboriginal people across Canada.57After reviewing a number of authorities, including those discussed in this chapter, Chief Justice McEachern concluded that in St. Catherine's Milling the Judicial Committee of the Privy Council "got it right when it described the aboriginal interest as a personal right rather than a proprietary one".58 He also found that whatever rights the Aboriginal people had before the colonization of British Columbia were extinguished by the act of Parliament passed in 1858 empowering the Queen to appoint a governor of the new colony and make provision for its laws and administration. He held further that in 1871, when the colony was united with Canada, all legislative jurisdiction was divided between Canada and the province, and no room was left for any Aboriginal jurisdiction or sovereignty. The Aboriginal peoples' only surviving right, the Chief Justice concluded, was to use unoccupied Crown land for their traditional pursuits of hunting and fishing for sustenance purposes, subject to the general law and until such time as the land was required for a purpose incompatible with the existence of such a right.This was a major set-back for the Gitksan and Wet'suwet'en, and an appeal was launched immediately. The British Columbia Court of Appeal split on the various issues raised at trial, with a majority of three judges generally upholding the trial decision and dismissing the appeal.59 Two judges dissented on a number of grounds and would have allowed the appeal.60 In all, four separate judgments were issued by the Court of Appeal. Although a further appeal was filed with the Supreme Court of Canada, the parties have requested that it be withdrawn pending negotiations to resolve the many outstanding issues raised at trial and on appeal. Those negotiations are continuing.In addition to the Courts, Aboriginal people have also looked to the international community for legal and political support. Since the end of the Second World War the community of nations has become increasingly anxious to develop standards of conduct in the field of human rights to which all nations should subscribe. This concern was manifested in an ever-increasing number of conventions, declarations and covenants. There is no doubt that human rights considerations have now become a major concern of the world community legally, morally and politically.Can Canada possibly stand up against a worldwide movement to restore recognition and respect for Indigenous peoples, their distinctive cultures and historical traditions? Chief Solomon Sanderson has said,

By our own efforts, over the last decade, we have successfully re-asserted our sovereignty as Indian Nations in our own homelands and have begun to re-establish our international personality in the Courts and political assemblies of the world.
But there is much work to be done. While we have been trussed up and gagged in Canada for the better part of this century, the international community of nations has been re-structured and a body of international law, which is not yet sensitive to our Indian concepts of nationhood, has come into use. In our enforced absence from world forums, nobody spoke for us and nobody contradicted Canada's definition of us as an insignificant and disappearing ethnic minority.
In the thirty-five years since the Second World War, Britain and the other European powers dismantled their colonial empires and, with the United States, sought a new world order. The integrity of every nation, however poor or small, would be protected by universal observance of international law based on common respect for fundamental human rights, including the right to self-determination.61

Aboriginal people in Canada are well aware of the importance of international forums for advancing their rights. It was under the International Covenant on Civil and Political Rights, which guarantees among other things the right of all peoples to self-determination, that Sandra Lovelace took her case against Canada to the United Nations. A Maliseet woman who had lost her status by marrying a non-Indian in 1970, Lovelace was no longer allowed to live on her reserve. She argued that she was thereby prevented from practising her culture and language and that this was a violation of Article 27 of the Covenant, which states that

In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

The United Nations Human Rights Committee agreed with Sandra Lovelace that she had been denied her rights under Article 27, because the only place where she could fully exercise these rights was on her reserve.62 While the committee could not, of course, force Canada to change its law, the public condemnation voiced in the decision was a tremendous embarrassment to Canada which had long prided itself on being a champion of international human rights. Canada responded in 1985 with Bill C-31, amendments to the status and membership provisions of the Indian Act discussed in detail later in this volume.63It is the hope of Indigenous peoples everywhere, including Aboriginal people in Canada, that international pressure will force countries with Aboriginal populations to assure their cultural survival and recognize their right to have their own land and their own systems of government. Can Canadian Courts and Canadian governments now, at this late date in our history, change gears and help in achieving this world-wide objective? There is reason for optimism. The Courts have come a long way from St. Catherine's Milling to Guerin and Sparrow. Aboriginal and treaty rights are now protected in the constitution, and federal, provincial, and territorial governments have accepted the view that the inherent right of Aboriginal peoples to govern themselves may well be one of those entrenched Aboriginal rights.We now have an unprecedented opportunity to learn from the mistakes of the past and to set out, both as governments and as peoples, in totally new directions. If Canada has a meaningful role to play on the world stage (and we would like to think that it has) then it must first set its domestic house in order and devise, with the full participation of the federal government, the provinces and the Aboriginal peoples, a national policy of reconciliation and regeneration of which we can all be proud.

20. Positivism is concerned not so much with the content or substance of a particular rule of behaviour as with its form -- for example, that a given rule is a law, as opposed to a mere moral or ethical precept. The classical exposition of the positivist approach is that of John Austin, who described laws as having three characteristics that distinguish them from other rules. Thus, a law is (1) a command; (2) issued by a political sovereign; and (3) enforceable by the state. Under this approach, a Court in Canada would simply examine a legislative enactment to ensure that it had been validly passed by Parliament or a legislature within the limits of its law-making authority as set out in the Constitution Act, 1867. The "fairness" or "justness" of the enactment would not enter into the judicial calculation. See J.P. Fitzgerald, ed., Salmond on Jurisprudence, twelfth edition (London: Sweet & Maxwell Limited, 1966), chapter 1, "The Nature of Law", for a discussion of the various philosophies of law, including positivism.

21. Several examples of tactics like this on the part of Indian affairs officials are given by E. Brian Titley, A Narrow Vision: Duncan Campbell Scott and the Administration of Indian Affairs in Canada (Vancouver: University of British Columbia Press, 1986), p. 102.

22. See Titley, A Narrow Vision, pp. 104-109, for a description of tactics used by Indian affairs officials to hinder and discredit Loft and his movement.

23. Pasco v. Canadian National Railway Co., [1986] 1 C.N.L.R. 35 at 37, per MacDonald J. (B.C.S.C.).

24. As explained in our earlier constitutional commentary, Partners in Confederation: Aboriginal Peoples, Self-Government, and the Constitution (Ottawa: Supply and Services, 1993).

25. More precisely, appeals were abolished in 1933 for criminal cases and in 1949 for civil cases. Cases in process in 1949 were concluded in 1952.

26. Manuel and Posluns, The Fourth World (cited in note 5), pp. 6-7.

27. St. Catherine's Milling and Lumber Company v. The Queen (1888), 14 Appeal Cases 46 (JCPC).

28. After 1867, it will be recalled, the executive power of the British Crown, one and indivisible in the United Kingdom because it is a unitary state, was exercised by the governor general of Canada and the lieutenant governors of the provinces. Thus the Crown was, in effect, 'split' between the Dominion and provincial governments to accommodate Canada's federal structure. See The Liquidators of the Maritime Bank of Canada v. The Receiver-General of New Brunswick, [1892] Appeal Cases 437 (JCPC), where it was held that the provincial lieutenant governor, as the representative of the sovereign, possessed all the privileges, powers and immunities and of the Crown as a function of the division of legislative powers between Canada and the provinces in the Constitution Act, 1867.

29. This was because of the effect of section 109 of the Constitution Act, 1867 which, at Confederation, had vested in the province underlying title to Crown lands within the new provincial boundaries. The Dominion argument was based on the exceptions to this grant contained in section 109 and on the power accorded to the new Dominion in section 91(24) over "Indians, and Lands reserved for the Indians".

30. 21 U.S. (8 Wheaton) 543 at 574 (1823).

31. Worcester v. Georgia at 544.

32. R. v. Sparrow, [1990] 1 S.C.R 1075 at 1103-1104.

33. [1965] S.C.R. vi; (1966) 52 D.L.R. (2d) 481 (S.C.C.).

34. (1965), 52 W.W.R. 193. Davey, Sullivan and Norris JJA concurred in finding that the Indian Act provision favouring treaties over provincial laws was determinative of the issue, with Sheppard and Lord JJA dissenting. The Supreme Court of Canada affirmed the majority decision of the Court of appeal.

35. Calder v. Attorney-General of British Columbia, [1973] S.C.R. 313.

36. Extinguishment is the legal term used to refer to the Crown action of putting an end to Aboriginal title or to Aboriginal rights. This is usually accomplished by treaty cessions by Aboriginal people or by legislation to this effect. Much of the dispute in modern Canadian history is over the precise effect of legislation on Aboriginal rights and title, and how one gages whether the legislation has expressed a "clear and plain" intent to extinguish. For a discussion of Canadian extinguishment policy, see Royal Commission on Aboriginal Peoples, Treaty Making in the Spirit of Co-Existence: An Alternative to Extinguishment (Ottawa: Supply and Services, 1995).

37. Calder (cited in note 35), p. 328.

38. The injunction case is reported as Gros-Louis et al. v. La Société de Développement de la Baie James et al., [1974] Rapports de Pratique de Québec 38; the appeal is reported as James Bay Development Corporation v. Kanatewat (1973), 8 Canadian Native Law Cases 414.

39. Baker Lake v. Minister of Indian Affairs and Northern Development, [1979] 1 F.C. 487 at 557-558.

40. Guerin v. The Queen, [1984] 2 S.C.R. 335. The Court was divided on the precise nature of the obligation (fiduciary, trust or agency) and exactly when it arose in the context of the Indian Act land surrender transaction under consideration (before or upon actual surrender by the band). The judgment by Chief Justice Dickson (as he was by the time the judgment was rendered), on behalf of four justices, is generally accepted as the definitive statement: ...where by statute, agreement, or perhaps by unilateral undertaking, one party has an obligation to act for the benefit of another, and that obligation carries with it a discretionary power, the party thus empowered becomes a fiduciary. (p. 384)

41. [1985] 2 S.C.R. 387.

42. This term refers to early treaties between European nations and Indian tribes and bands that do not involve land cessions. There has always been some question in Canadian law about the precise legal effect of these documents, since they were entered into before Confederation and by their terms do not deal with land.

43. R. v. Syliboy (1929), D.L.R. 307 (N.S. County Court).

44. This principle is based on similar principles of American Indian law and was first articulated by the Supreme Court in 1983 in Nowegijick v. The Queen, [1983] 1 S.C.R. 29, in the context of an interpretation of section 87, the tax exemption provision in the Indian Act.

45. Simon (cited in note 41), p. 404.

46. Simon, p. 399 per Dickson C.J.

47. Simon, pp. 407-408.

48. [1990] 1 S.C.R. 1025.

49. Sioui, p. 1053.

50. Sioui, p. 1056.

51. Sioui, p. 1071.

52. A framework agreement for the establishment of a new relationship between the Huron-Wendat Nation, the government of Canada and the government of Quebec was signed on 10 August 1995. The parties agreed to undertake simultaneous negotiations concerning the application of the Murray Treaty of 1760 and the establishment of self-government for the Huron-Wendat.

53. Sparrow (cited in note 32).

54. Sparrow, p. 1108.

55. Sparrow, pp. 1113-1119. Section 35 rights are not absolute but can be limited under certain circumstances if the government action can be justified by means of a three-part test:

1. Is there a valid federal legislative objective such as conservation, the prevention of harm or some other "compelling and substantial" objective?

2. Is the honour of the Crown maintained so as to respect the fiduciary relationship and give the proper priority to the Aboriginal or treaty right?

3. Are there other issues to be considered in maintaining the honour of the Crown, such as minimizing the infringement of the right, adequately compensating Aboriginal people in the case of expropriation, and fully consulting them before infringing the right?

Like the categories of fiduciary to which the Court referred in Guerin (cited in note 40), the Court said that the factors listed in point 3 were open to expansion as circumstances might warrant in the context of the overall relationship between Aboriginal peoples and Canadian society.

56. Sparrow, p. 1114.

57. Delgamuukw v. British Columbia, [1991] 3 W.W.R. 97 (B.C.S.C.). Chief Justice McEachern made many references to the social and political conditions of the Gitksan and Wet'suwet'en, stating that "aboriginal life in the territory was at best, nasty, brutish and short" (p. 126), that the plaintiffs' ancestors were "by historical standards, a primitive people" (p. 141), were "hardly amenable to obedience to anything but the most rudimentary form of custom" (p. 202), had only "a rudimentary form of social organization" (p. 202), and had no institutions by which to govern their territory: "I find they more likely acted as they did because of survival instincts" (p. 373).

58. Delgamuukw, p. 383.

59. [1993] 5 W.W.R. 97. The three judges were Macfarlane, Taggart and Wallace.

60. Judges Lambert and Hutcheon.

61. Solomon Sanderson, "Foreword", in Delia Opekokew, The First Nations: Indian Government in the Community of Man (Regina: Federation of Saskatchewan Indian Nations, 1982), p. ix.

62. Lovelace v. Canada, [1981] 2 Human Rights Law Journal 158; 68 I.L.R. 17. The decision was made by the Human Rights Committee (established pursuant to the International Covenant on Civil and Political Rights). The committee held that Lovelace's automatic loss of Indian status upon marrying a non-Indian deprived her of the cultural benefits of living in an Indian community. The rationale for the Indian Act provision denying her the right to live in the Indian community was found not to be reasonable or necessary to preserve the identity of the tribe.

63. It is our view that Bill C-31 has not corrected the problem of sex discrimination against Sandra Lovelace and other First Nations women, but has merely postponed the effects for another generation. In addition, under the present system, Bill C-31 also poses a threat to the overall population of status Indians, because of the way the new distinctions between sections 6(1) and 6(2) of the Indian Act work in practice.