Week 12 – Politics, Constitution and Modern Law
March 26, 2014
Aboriginal Rights & Treaty Rights
1. s.35 – Aboriginal Rights
s.25 is similar to s.15(2) and states that not giving them rights will not violate other aspects in the charter.
From 1867 the BNA tried to institute an area of federal government controlling aboriginals and the state. S.91 (24) meant that all major responsibilities
held by the british, treaties, aboriginal control was left to federal government and not the provincial. This was something that was interpreted in a
controlling or paternalistic way and most aboriginal populations were orphans or welfare states and had no autonomy under the Indian act.
Royal Proclomation was the source of all aboriginal rights and titles. This document at this point extinguished all other rights and title and aboriginal only
had the rights that the federal government gave them and the rights included in the document.
They had control of all aboriginal peoples living in any situation and metis were not accepted in the white population because they were not native and
were not considered by the federal government because they were to white.
Metis were asking to be under the Indian act to gain some protection and land for security. But the government did not want to offer them protection or
land or the Indian act. Along with this exclusive authority and control the government had the responsibility to provide protection and certain welfare to
s.91(24) is the only mention of aboriginals in the constitution before the charter.
1. the idea of protection. They wanted to protect british land and push aboriginals to less valuable land to move them farther away. Legislatures
were going to be controlled by settler populations that were hungry for land and this did not work well for aboriginals. Federal government was
the power and encouraged white settlement and separated them from the aboriginal population. They defined where the land that the settlers
wanted was and moved aboriginals to areas that nobody wanted.
Federal government had control of the land and provincial governments had no access to this land or the decisions.
2. Aboriginal societies seen as nations
Aboriginal rights and treaty rights Issues
Badger (1996) distinction
Sparrow & s.35
in R v. Badger there is a distinction between rights and by defining aboriginal rights aside from treaty rights opened a door to many new claims. A
treaty is a contract and its interpreted as the parties that negotiated this contract and accepted the terms whether they are beneficial or not and you must
follow this contract narrowly. Whatever the results were is what is going to be enforced. Treaty rights are to be interpreted very narrowly and it could mean
that these treaties don’t include specific land and if not they will not be included.
When the issue of aboriginal rights was tied up to treaty rights badger identified aboriginal rights different from treaty rights. They are inherent rights and
flow from aboriginal identity and history and come from custom and tradition and the right to live as there forefathers live. More tied to their identity and
what it means. If you combine this with treaty rights being narrowly, it means that aboriginal rights are broader and wont be impacted by treaties. A
narrow interpretation of treaty rights can have benefits when it has a good definition of aboriginal rights.
By the end of the 20 century aboriginal rights were ignored and just known as treaty rights. There rights are hard to apply in contemporary society
because they can do things legally that are contrary to the laws in Canada.
Although nonaboriginals have to follow certain laws many aboriginals don’t follow the same culture and don’t follow the same laws we do and deal with
Aboriginal rights can be subdivided and shared and surrendering control aboriginal land doesn’t mean the aboriginal rights linked to that land have also
been surrendered leaving confusion. If a land is still their without a treaty you can live and use the land but you don’t have actual ownership of the land to
sell or control it. There rights are complex and its not just as simple as I own this and don’t own this. Sometimes they hunt and camp and don’t actually live on this land
and other people also may or may not have access to this land.
Where there is aboriginal rights over control over the land there is the issue of having self government on that land.
This means that every individual case has different issues and rights and they can differ from location to location from group to group and we need to
look at each case separately and analyze their ownership, rights, treaties, federal government impact, what rights remain and what do these rights mean
in deciding what aboriginals are and are not allowed to do on land.
It was accepted that in 1982 with the creation of s.35 that this would create a new relationship between the federal government and the aboriginal people
R v. Sparrow was the first case to decide what this new relationship meant. The s. of the BNA pertaining to aboriginals needed to comply with the
charter but gives the SCC more power and discretion on defining the nature and scope of their rights and in particular the courts have the role of being
the arbitrator to determine the limitations on their rights are proper or imposed improperly.
This allowed past cases to be heard under this knew framework. In the 80s and 90s there is a flood of their aboriginal rights and treaty rights to get new
interpretations on land claims. Legitimate treaties were redefined and historic interpretation usually takes a federal government white society way of
interpretation and that are not clear to aboriginal citizens.
R v. Sparrow started a reinterpretation that these treaties need to be understood with an influence of aboriginal perspectives. In particular sparrow
found that reassessing past assumptions especially with the application of s.35 that federal powers have to be limited and reconciled with their duty and
obligations. They don’t just have the right to control they also have responsibility to look out for their welfare and interests. S.35 brings this back into the
picture and brings their obligation to assist them becomes more prominent. They need to act honourably with all aboriginal people.
They need to act in the best interest (fiduciary duty acting on someones behalf and they make decisions in trust and cant allow their own interests to
affect the decisions). Aboriginals are legally incapable to act on their own and the federal government need to step up and stop disadvantaging them they
need to begin to help them and make better decisions.
This case also defined the real role of the government and why the continue to allow the government to make control over their issues. There are conflicts
between the new interpretation and their rights and the rest of the population or the government. The federal government has had control and sold and
divided land they owned and the courts are not going to kick people out of this land now. Despite errors in the past they need to still consider people that
are living on that land now.
There is an obligation of the federal government to recognize and affirm their rights.
2. what does it mean to recognize and affirm aboriginal rights
The scope of rights
– increasing recognition that settler communities have to accommodate aboriginals if there land was taken from them. All s.35 obliges the government to
do is recognize existing treaty rights and help enforce these rights.
there are other arguments that state that the government needs to help them with their social, political and economic structures to make them equal in
society because the government has caused most of their hardship and they need that help to maintain equal rights.
affirm aboriginal rights by increasing the ability of native populations to exercise their rights. There is an obligation to provide services but not every
service in all circumstances. s.35 imposes obligations on the government to support specific situations and areas of activity that are necessary to promote and enhance aboriginal
identity. To give them the basic resources to practice and be their culture. Cultural education, activities, etc. support to reconcile conflicts between
aboriginal and nonaboriginal communities education, activities. The federal government needs to support processes to support selfgovernment. The
population itself has to be able to participate in government activities and sometimes education. MacKlem Peter.
s.35 obligations that can be defended are the ones that promote aboriginal identity and sovereignty where it applies. If support is required for those
particular goals to be achieved then it is a federal obligation. You cant just resolve every single problem related to aboriginal poverty, its where poverty
prevents them from having aboriginal rights then federal government must support it.
some communities heavily argue that federal government has cause major impacts and that they should fix these problems that they cause. S.15 is
supposed to have an ameliorate program aspects and this is also applied with s.35 to apply equality to the rest of the population.
s.35 opened the door to reevaluation of treaty rights.
Since 1700 over 500 treaties. Most were about friendship between aboriginals and the settlers and the right to be on the territory and trade things. These
were not permanent treaties.
Later treaties included the surrender of land and the british made false claims and the aboriginal populations could use and control the land until the
british needed it.
Before 1850s these were disputes over small parts of land and the british paid them for this land. After 1850 as the settle population increased they
began to deal with larger parts of land. And instead of taking small discrete areas they were taking chunks that were a quarter of a province and the
surrenders were supposed to be complete but until they wanted the land aboriginals can still use the land and this can become unclear what is
surrendered and what is not.
In the late 19 and 20 century the treaties took most of the provinces and huge tracks of land that were surrendered completely. In 1921 treaty since
covered 120 miles of land in sask and Alberta and a couple of reserves got a square mile per family and were paid off for this land. They were promised
farming, medical care and school on the land. These treaties bring up the issue of what was surrendered and what was provided. If you take the contract
approach if it is not written down it is not their and will not be included in negotiations.
Rights that were still existing from 1982 and determine what was surrendered and what wasn’t. if it was legitimately surrended then there is no dispure but
if its not there are issues. Does the native have to prove the right still exists and is not surrendered? Or does the federal government need to prove this?
Most of the evidence that is admissible in the courts is written and in English and this causes problems for aboriginal people. What they agreed to was
not always put into the treaty. The government controls the knowledge and the documents and for the aboriginals to prove things it is very hard. As long
as the courts focus on written documentation it will always side with the white british side.
The government has to protect their rights but they don’t have to protect them if they did not exist after 1982.
3. How to determine what are existing rights?
there are pro aboriginal judges and decisions but they made it that these aboriginals were not capable of making a contract because they don’t have the
understanding or education. Others say that they understand contracts and negotiations and they are capable of making treaties. Some say that they are
totally able to make treaties but were lied to so they were signing things that they were unaware of.
after the charter then a reinterpretation of this notion was made. There was a greater willingless of the court to prove and help aboriginals on their rights
and treaty rights. Before the charter the aboriginals relied on oral history that the courts did not take seriously and by the late 80’s that if oral history can
be verified as reality then it was acceptable as evidence as to what they were told in the treaty they signed and helped them prove their arguments.
there were also culturally interpretation they could understand words but did not know what those words mean.
Their was an idea of aboriginals being primitive and that they were not sophisticated but they were and understood things well. They all