Aboriginal People

28.1- Federal Legislative Power

s 91(24)- of the Constitutional Act 1867 – confers power upon the federal Parliament the power to make law in relation to “Indians, and lands
reserved for the Indians”.

 main reason for s92(24)- there was a concern for the aboriginal people against the local settlers, whose interest lay in an absence of
restrictions on the expansion of European settlement.
 second reason- was probably a desire to maintain uniform national policies respecting the Indians.

The Royal Proclamation 1763- had established that treaty making with the Indians was the sole responsibility of the Imperial Crown in right of the
United Kingdom. After confederation, the federal government was the natural successor to that responsibility.

s 91(24) has 2 heads of powers :

1. A power over “Indians” (reserved for only Indians where they reside on, or have any connection with, lands reserved for Indians.) see
below for details
2. And a power over “lands reserved for Indians” (maybe exercised in respect of Indians and Non Indians so long as the law is related to
lands reserved for the Indians.)

“Indians”

Who is an Indian? –In Canada is used to mean the aboriginal peoples who have been living there long before European contact.

The Federal Indian Act - defines the term “Indian” /establishes a register to record names/ and persons within this statutory definition are known as
“Status Indians”. They can enjoy the right to live on Indian reserves.

Not “Indians” –some persons’ with Indian Blood and Culture-who are outside the definition. These are non-status Indians. The Metis People
(French/Indian) outside reserve system most likely Indians Under s 91(24) & The Inuit or Eskimo people- are outside reserve system but held to
be Indians within the meaning of s91(24)

Metis and Inuit are not governed by the Indian Act.

What kinds of laws may be made in relation to Indians?- the federal government has taken a broad view that it may legislate for Indians on
matters which otherwise lie outside its legislative competence and which it could not legislate for non-Indians. (Indian Act- provisions that govern:
succession to the property of deceased Indians, administration of property of mentally incompetent Indians and infant Indians.)

Whether these provisions are valid? This is of course a question of characterization: are they in pith and substance in relations to Indians? Lysyk-
doubts as to the validity of the Indian Act’s forays into the law of property.

“Lands reserved for Indians”- obviously includes lands set aside as Indian reserves in various ways. It also Includes huge area of land recognized
by the Royal Proclamation 1763. This is all land within the territory covered by the proclamation that was in possession of the Indians and that had
not been covered by the crown. Delgamuukw v B.C. (1997)- the SCC went even further holding the phrase extends to “all lands held pursuant to
aboriginal title”. For that reason, only the federal Parliament had the power to extinguish aboriginal title.

St Catherine’s Milling and Lumber Co v the Queen (1889) - The title of the provincial crown is subject to the aboriginal rights of the Indians and
of those rights along with other matters pertaining to the control and administration of the reserves are subject to the legislative authority of the
federal government.

Discrimination/Offence-with the Canadian Bill of Rights? The CBOR applies only to federal laws. s. 1(b) a guarantee of “equality before the law
“ and specifically forbids “discrimination by reason of race” The federal Indian Act appears to offend the guarantee of equality in the Canadian Bill
of Rights. In the first branch of s91 (24), it clearly uses the term Indian and employs a racial classification in order to be constitutional.
R v Drybones (1969)- use of the racial classification “Indian” in s94 of the Indian Act(which made it an offence for an Indian to be intoxicated on a
reserve) violated the equality guarantee in the Canadian Bill of Rights. However, it appears the special regime of law for Indians is not threatened by
this decision.

Discrimination/Offence-with the Charter of Right s15 - s 15 also contains an equality assurance. The Indian act has not been challenged under s
15 by reason of its own use of the “Indian” classification. A challenge would most likely be unsuccessful because of the Constitutions various
recognitions of various Indian special status.
  Corbiere v Canada (1999)- the SCC struck down a provision of the Indian Act that made residence on the reserve a requirement for
voting in band elections. Held: That the distinction between Indians who lived on the reserve( an could vote) and Indians who lived off the
reserve was a breach of s 15.
 Lovelace v Ontario ( 2000)The SCC rejected a challenge to the distinction of the Casino Rama gambling profits that was limited to
communities registered as bands under the Indian Act. The court held that the exclusion of non status bands from the distribution of the
profits was not a breach of s15.

Treaties / s35 of the Constitution Act 1982 –now gives the constitutional protection to rights created by treaties entered into with Indian tribes or
bands and perhaps to rights created by provisions in international treaties. S35 operates as a limitation on the powers of the federal government as
well as a provincial legislatures.

Hogg 28.2 Provincial Legislative Power

Application of provincial law-general rule is that provincial laws apply to Indians and lands reserved for the Indians. There 5 exceptions to this
rule! See below

 R v Hill (1907)- that a provincial law confining the practice of medicine to qualified physicians applied to Indians: an Indian was convicted
of the offence of the unauthorized practice of medicine. ( no on reserve but it didn’t matter)
 Four B Manufacturing v United Garment Workers( 1979) that provincial labour law applied to shoe manufacturing business which was
located on a reserve, which was owed ( through a corporation) by Indians, which employed mainly Indians and which had been funded by
the Department of Indian Affairs.
 R v Francis- (1988)- provincial traffic laws applied to an Indian who had been driving a vehicle on a reserve.

Provincial vs Federal
 The Four B and Francis cases definitely rejected the theory that Indian reserves are federal “enclaves” from which provincial laws are
excluded.
 Paul v British Colombia (2003)- the court held the BC Forest Practices Act applied to an Indian who had been cutting timber in breach of
a prohibition in the Act.
Exceptions
A. Singling Out –A provincial law that singles out Indians or Indian reserves for special treatment would run the risk of being classified as a
law in relation to Indians or Indian reserves and if so classified, the law would be invalid. R v Sutherland [1980]
B. ” Indianness” - basically anything that affects status or capacity- Kruger and Manuel v The Queen [1978]
C. paramouncty- If a provincial law is inconsistent with a provision of the Indian act (or any other federal law) the provincial law is
rendered inoperative by the doctrine of federal paramountcy.
D. Natural Resource Agreement- Provincial laws cannot deprive Indians the right to take game and fish for food. The NRA is part of the
Constitution of Canada.
E. section 35 has protected treaty rights.

s 88 Of the Indian Act

 s88 makes it clear that provincial “laws of general application” apply to Indians. It makes no comment on lands reserved for Indians but
there is no doubt that the section extends to Indians on reserves.

“Laws of general application”- the phrase excludes provincial laws that single out Indians for special treatment.

Aboriginal Rights 28.5

Recognition of Aboriginal Rights

Hogg 28.5 (a)- The effect of Guerin and Sparrow is to confirm that aboriginal rights do exist at common law and they are enforceable at the suit of
aboriginal peoples.

Hogg 28.5 (a) Sparrow- decides as well that aboriginal rights including fiduciary duty are now constitutionally guaranteed through s35 of the
Constitutional Act 1982

 Calder Case (1973)- six of the seven judges held that the Nishga people of BC possessed aboriginal rights to their lands that had survived
European settlement.
 Guerin v The Queen (1984) – Aboriginal rights that have not been extinguished are recognized by the common law and are enforceable
by the courts. The majority of the SCC recognized that the aboriginal title of Musqueam Indian Band to land in BC

Dickson- “ a legal right derived from the Indians historic occupation and possession of their tribal lands”.
Held: The aboriginal title to the land gave rise to a fiduciary duty on the part of the crown to deal with the land for the benefit of the surrendering
Indians.
Held- This fiduciary duty had been broken and awarded damages to the Band. (this did not depend on s 35 of the Act)

 R v Sparrow ( 1990) – The SCC unanimously recognized the aboriginal right of a member of the Musqueam Indian Band to fish for
salmon in the Fraser River. “Where his ancestors had fished from time immemorial”

The defendant had been charged with the violation of the federal Fisheries Act and because the charge related to facts occurring after 1982 he was
able to invoke the s35 of the Constitution Act 1982.
Held- That s35 did provide constitutional protection for the aboriginal right and laid down principles that govern s35.

The court had also enlarged the fiduciary duty “the Government has the responsibility to act in a fiduciary capacity.”

Definition of Aboriginal Rights

Hogg 28.5 (d)- Guerin and Sparrow cases had recognized aboriginal rights.

 R v Van der Peet (1996) the SCC had went further and defined aboriginal rights.
 R v Van der Peet ( 1996) as per Larmer C.J.- Aboriginal rights are rights held by aboriginal peoples, not by virtue of Crown grant,
legislation or treaty but “ by reason of the fact that aboriginal peoples were once independent, self governing entities in possession of most
of the lands now making up Canada.

R v Van der peet ( 1996) Legal Test–used to identify an “existing aboriginal right within the meaning of s35 of the Constitutional Act 1982.”

Legal Test “In order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the
aboriginal group asserting the right”

 In order for the practice to be “integral”, the practice must be “of central significance” to the aboriginal society: it must be a defining
characteristic of the society, “one of the things that made the culture of the society distinctive.
 The practice must have been developed before “contact” that is, “before the arrival of Europeans in North America. (2 dissenting judges
felt the requirement unduly difficult to prove)
 The practice can evolve over the years as the result of contact- ( ie bone hook-metal hook & bow and arrow- gun) but Do not qualify-
contemporary practices that developed “solely as a response to European influences” do not qualify.

 Facts Van der Peet- defendant had been convicted of catching and selling fish that she had caught under the authority of a Indian food-fish
license. The court held that fishing for food was part of the Sto:lo society as well with the exchange of fish, but selling the fish was not an
“integral part” of the Sto”lo culture.
Similar cases-

 R v. NTC Smokehouse – rights not established The practice of of exchanging fish was not sufficiently central to the aboriginal culture to
qualify as an aboriginal right .
 R v. Gladstone [1996]- rights established the court held that the claimed aboriginal right which was to sell hearing spawn on kelp was
established and “was a central and defining feature of Heilstuk society”.

Metis Rights-Legal test changed

 R v Powely ( 2003)- Metis claimants of aboriginal rights, the focus on European contact had to be moved forward, not to the time of
European sovereignty, but to “the time of effective European control.”The same Van der Peet definition was used to be used to
identify Metis rights.

Aboriginal Self –Government Hogg 28.5 (c)

B. Slatttery- The aboriginal right of self government must exist because aboriginal people were living in self government communities before the
arrival of Europeans.

 R v Pamajewon (1996) rejected a claim by the Shawanaga and Eagle Lake First nations to conduct high stakes gambling on their reserves.
 gambling operations were conducted pursuant to a law enacted by the band council. It was not a by-law of the Indian Act. They were
charged with a gaming offence under the Indian Act. Larmer CJ characterized the claimed right as a right “to participate in and regulate,
 gambling activities on their respective reserve lands.” Evidence showed- that they gambled before the arrival of Europeans, it was small
scaled and informal and was never part of the means by which the communities were sustained.
 Court was concerned with- the ability of aboriginal people to immunize themselves from the rules of the Criminal Code was a major
concern for the courts.
 R v Pamajewon (1996)- the aboriginal right to self government extends only to activities that took place before European contact and only
those activities that were an integral part of the aboriginal society.

 Proposed s35.1- Charlottetown Accord – wanted to give meaning to self governing in a modern context.

 Question- if the federal or provincial laws apply in the face of an inconsistent aboriginal law is a separate question from the extent of the
power of self government. If the Criminal code in Pamajewon would have to yield to aboriginal law then a question of paramountcy
would have arisen and should be resolved by the Sparrow test.

Potential Question—Does the provision of the Criminal Code satisfy the Sparrow test of justification?

 Delgamuukw v B.C. (1997)- proceedings for a declaration that they had aboriginal title and self government right over a territory in
northern B.C. The SCC did not grant the declaration sought and ordered a new trial. Larmer CJ did provide extensive reasons as to the
nature of aboriginal title.

 2 things that was said about aboriginal title and self governance is 1) land held under held under aboriginal title is “held communally” &
2) aboriginal title “encompasses the right to choose to what uses land can be put

Hogg 28.5 (d) Aboriginal Title

 Aboriginal Title- is the right to the exclusive occupation of land, which permits the aboriginal owners to use the land in a variety of
purposes. It would obviously permit the owners to hunt fish and harvest their lands .However, rights to particular activities such as hunting,
fishing and harvesting may also exist on land to which the aboriginal people do not have title to. ( Fishing- R v Adams [1996])

 Delgamuukw v British Columbia (1997) proceedings for a declaration that they had aboriginal title and self government right over a
territory in northern B.C. The SCC did not grant the declaration sought and ordered a new trial. Larmer CJ did provide extensive reasons
as to the nature of aboriginal title.

 2 things that was said about aboriginal title and self governance is 1) land held under held under aboriginal title is “held communally” &
2) aboriginal title “encompasses the right to choose to what uses land can be put

 The point of time at which aboriginal occupation of the land must be proved in order to make out aboriginal title is “prior to sovereignty”
not “prior to contact”

5 Differences between aboriginal title vs non-aboriginal title

1. Source of aboriginal title- derives from pre sovereignty occupation rather than post sovereignty grant from the crown.
2. the range of uses to which aboriginal title land may be put.
3. Aboriginal title is inalienable, except to the Crown. The Crown has to act as an immediatry between the aboriginal owners and third parties.
To pass to third parties, the aboriginals must surrender the land to Crown.
4. Aboriginal title can only be held communally.
5. Aboriginal title is constitutionally protected.

Extinguishments of Aboriginal Rights

This can occur in 2 ways

1) by surrender (must be voluntary and to the Crown) R v Howard [1994] 2) by constitutional amendment R v Horseman [1990]

Definition of Treaty Hogg 28.6 (c) – has been described as “unique” or “sui generis”. It not subject or to the rules of international law and is not a
treaty at international law. It is not a contract and not subject to rules of contract law. It is an agreement between the Crown and aboriginal nation
with the following characteristics.

1. Parties-Crown on one side, aboriginals on the other.

2. Agency- the signatories on the treaty must have the authority to bind their principles, namely the Crown and the aboriginal nation.
3. Intention to create legal relations: the parties must intend to create legally binding obligations.
4. Consideration- the obligations must be assumed by both sides, so that the agreement is a bargain.
5. Formality: there must be a certain measure of solemnity.
  2 leading cases about treaties are:
Both cases were applying s88 of the Indian Act not s35 of the Constitution Act 1982-(safe to say word treaty is similar. )

 R v Sioui (1990)-short document signed in 1760 which “certified” that the Chief of Huron Indians had come “ in the name of his nation”
the free exercise of their religion, customs and liberty. The SCC held this to be a valid treaty by virtue of s 88 of the Indian Act.
 Simon v the Queen (1985)-Held to be a valid treaty to except the Micmac defendant from the game laws of Nova Scotia.

 Principle of interpretation- that treaties and statues reacting to Indians should be liberally construed and doubtful expressions resolved in
favour of the Indians. Simon v The Queen [1985]

Extinguishments of Aboriginal Treaty Rights


This can occur in 2 ways
1) by surrender (must be voluntary and to the Crown) R v Howard [1994]
2) by constitutional amendment R v Horseman [1990