The Constitutional Framework
of Canadian Natives

Charles R. MacDonald
Stittsville Ontario

In 1967, at EXPO 67, The Canadian Pavilion was built in the shape of an inverted pyramid. This unusual shape is not in common use for buildings as it is difficult to build a large building without a stable foundation. Native law in Canada finds itself in the same position. We have constructed an unusually elaborate legal structure on the merest wisp of a foundation. This lack of solid grounding makes predicting the eventual shape of Native law almost impossible.

The Common Law ... M'Intosh

The Common Law origins of aboriginal rights were stated in the M'Intosh case. This is an American case, but it has been used as an authority in subsequent Canadian cases.

The case was a dispute over a land title, and so it was necessary to determine where aboriginal title came from, and whether it could be compared to fee simple ownership.

Chief Justice Marshall used two common law principles in this case. The first, the principle of discovery, states that when a European government first discovers an heretofore unknown land, by that fact alone, they obtain a right to the land. This right includes the right to exclude other Europeans. The relationship with the original inhabitants, as there is no overriding power to rule otherwise, was a matter to be decided by the European sovereign. The inhabitants were to have the right to occupy the areas they had traditionally used, but they did not have the right to sell the land, because the title to the land was claimed by the discoverers.

Marshall notes that France, Spain, Portugal and Holland have all based their claims in the Americas on this principle. He states that no country followed this principle more carefully than England. He quotes the charters given to Cabot, Hudson and Gilbert as examples. Marshall accepts Cabot's claim in 1496 as claiming the Virginia area for the British Crown.

Marshall also compares the principle of conquest. If a country wages a war with another country, it may claim a title to the conquered land, but, "the conquered shall not be wantonly oppressed". In Marshall's view, the Indian wars in effect chased the aboriginal people off portions of the land, so that it was then totally in the hands of the government. The war of independence and subsequent treaty having transferred the Crowns rights to the government of the United States in the mean time.

The general outcome in this case is to establish a aboriginal land right based on occupation of the land prior to the coming of the Europeans. This right is a right of use that can be extinguished only by the sovereign government. It does not prevent the government from granting land that is subject to Indian use.

Marshall also uses the provisions of the Royal Proclamation of 1763 as an alternative explanation of the Indian rights. An American judge was of course not anxious to base a decision on a royal prerogative, nevertheless he would come to the same conclusion if he were to rely on that authority.

The Royal Proclamation of 1763

Britain and France had previously had a dispute about where their respective territories in the new world were located. This dispute was ended by the Treaty of Paris in early 1763. The British Crown had a need to exert its authority in the newly claimed territory.

In 1763 the King set out a proclamation that was to intended to govern the affairs of the colonies in America. This document was partly intended to prevent unrest on the part of the native communities. Besides setting out a vast tract of land to be reserved for the "Indian" population, The proclamation also set out rather strict guidelines for the methods that were to be used in getting the native inhabitants to surrender their claims to the Crown. These provisions set out the form of treaties with the native peoples from that period in our history.

The proclamation on its surface does not apply to the entire country, but only to the area that is drained by some rivers. Rupert's Land, the area that the Hudson's Bay Company controlled in the north, was specifically excluded. This exclusion alone covers a substantial part of central Canada. While the Royal Proclamation is still part of the Revised Statues of Canada, and may even have consitutional status, most modern aboriginal cases accept it as ancillary information. The main source of aboriginal rights is based on the principles that are enunciated in M'Intosh.

In the Calder case six out of seven judges of the Supreme Court were willing to recognize an aboriginal title on a similar basis.

The British North America Act (1867)

In 1867 the Dominion of Canada was set up by an act of the Imperial Parliament known as the British North America Act of 1867. Since 1982 this has been known as the Constitution Act (1867).

Sections 91 and 92 of that act divide legislative power between the federal and the provincial governments. It is generally accepted that this division is also true for executive power. The Governor General is the formal executive for federal powers, a power that is only used on the advice of the federal cabinet.

In section 91 (24) we find the provision that legislative authority applies to "Indians, and Lands reserved for the Indians." If read on the surface, this provision seems to be a straightforward exclusion of provincial authority over "Indians", however that term is defined. The federal government, accepting its authority in the matter has indeed passed an Indian Act. One section of that act (section 88) provides a way for the provinces to exert some control on the aboriginal people in their midst.

The Supreme Court has decided that Inuit are included in the definition of Indians in a case called re: Eskimos. To this day the consitutional status of Metis people is unsure, even if they are referred to in section 35(2) of the Constitution Act of 1982 as being included in the phrase "aboriginal peoples of Canada".

The British North America Act of 1867 also was concerned with dividing up the assets that the various provinces held prior to the formation of the Dominion. Section 109 places ownership of lands inside a province with the respective province. Section 91 says that lands reserved for Indians are however a federal responsibility. When the federal government attempted to grant timber rights to land that had been ceded by treaty, it was challenged by Ontario.

The St. Catherine's Case decided that the title held by the aboriginal people was a burden on the ultimate title held by the Crown. The natives could only alienate the land to the Crown. The Court used the Proclamation of 1763 to base the judgement, but it could have as easily been based on the concept set out in M'Intosh. Since the native title was only a burden on the title held by the Crown, when the burden was removed the land reverted to the Province of Ontario. St. Catherine's Milling had no right to use the land; only Ontario could grant that right.

After the St. Catherine's case we have a situation where the federal government is empowered to conduct treaties with the native population, but the land that is obtained by the treaties becomes the property of the provinces. Since the terms of most treaties provide that some of the land will be held as a reserve for the Indians, approval of the province is almost a formal requirement for any treaty.

Treaties, Both Formal and Informal

Under the Proclamation of 1763, land could not be declared open to be settled until the native inhabitants had surrendered their interest in the land to the Crown. The pressure was intense to settle the "Untamed" wilderness, so the government made the drawing up of treaties a high priority.

The early treaties were simply intended to ensure stable relationships where the Europeans interfaced with the previous inhabitants. Some of these treaties, like the one that was examined by the Supreme Court in Sioui, were little more than letters of safe conduct. Later treaties such as Robinson's in central Canada, and those entered into by Governor Douglas in what is now British Columbia, were concerned with opening up territory for settlement by placing the natives on reserves where they were supposed to hunt and fish while they learned how to be farmers.

Indian treaties are a special kind of document. Most treaties made between Canada and another nation, the Free Trade Agreement for example, require a that a law be passed to implement the provisions of the treaty. This is not so with respect to Indian treaties.

Simon and Sioui have both accepted the principle that treaties are to be looked at as being sui generis or of their own class and kind. The court has stated that in all cases Indian treaties are to be given a broad and liberal interpretation, that takes into account how the natives themselves might interpret the words, rather than a strict legalistic interpretation.

One act that does mention treaties is of course the Indian Act. In section 88, "laws of general application in a province" are to apply to any indian in that province, subject to treaties, and subject to the Indian Act or laws made under the act, or any other federal law.

The effect of section 88 is to allow provincial laws of general application to apply to Indians, but with the important proviso that a provincial law that is inconsistent with a treaty will not stand. Thus Simon was able to use a treaty provision allowing hunting, to hunt in a closed season, and Sioui was allowed to make camp in a nature preserve, thanks to a treaty that allowed the free exercise of religion.

In Sioui, the province was allowed to create restrictions, but only where the use of the land by the province was inconsistent with the use of the native peoples. For example Sioui would not have been allowed to make camp in an office building.

Treaties do not however override federal law. Fishing regulations, and the Migratory Birds Convention Act are applicable as valid federal legislation.

Natural Resources Transfer Agreements

The patchwork of laws making up the constitution from a aboriginal viewpoint is still more complex because of actions taken by the federal government in carving the prairie provinces out of the former "Northwest Territories". When Manitoba, Saskatchewan, and Alberta were first created, the federal government attempted to pull a fast one. These provinces were not to have the natural resources that are the property of the other provinces. The legislatures were unhappy with this, and eventually pressured the federal government into relenting, and transferring the resources to the respective provinces. Each of the prairie provinces therefore has its own Natural Resources Transfer Agreement. The Agreements all have similar wording that brings Indians in these provinces under the provincial game laws, but at the same time allows hunting and fishing for food at all times of the year on reserves, and on land that the Indians "may have a right of access."

This means that an indian may hunt at any time of the year on any land that the owner has given permission for the indian to use, even if the owner of the land herself is restricted from hunting due to a closed season. The restriction is that the hunting must be done to obtain food. Sport hunting, or hunting for a fur to keep warm must be done in the open season on the same terms as a non-indian.

The N.R.T.A. have of course no effect on federal laws. This means for example that the Migratory Birds Convention Act would still apply. One can imagine an indian hunter scanning a bird identification chart to discover if the bird she sees in the distance is under federal or provincial law.

Section 35 of 1983

I have previously mentioned the Indian Act as though it had consitutional status, yet it is a simple act of Parliament. The Constitution Act of 1982 and the amendments made to that Act in 1983 may have frozen the principles of the Indian Act in a much more concrete form.

The 1982 Constitution act contained a Section (35) that "recognized and affirmed" the "existing aboriginal and treaty rights" of "aboriginal peoples of Canada". Further, aboriginal peoples is defined to "include ... Indian, Inuit and Metis".

The courts are still grappling with this change: in R. v. Eninew the Court said that treaty rights could be limited by "reasonable" regulations. In Sparrow the B.C. Court of Appeal found that there was a power to regulate an aboriginal right, but with limitations on that power. The Ontario Court of Appeal accepted that argument in R. v. Agawa. The Supreme Court then heard Sparrow where they decided that a right could be reduced by regulation, but since the Crown has a fiduciary obligation to the Indians, so the regulations must be justified in the interests of the natives to be valid.

This means that if the Crown wants to restrict a native right, they must be prepared not only to show that the restriction is reasonable, but also that it is in the best interests of the native people. The Court sent Sparrow back down to the lower court to determine if the fishing regulations involved in the case met this new test.

Any right that has been totally eliminated before April 17 1982 is dead. If even a shadow of the right remains, the reasonableness of the restrictions must be considered.

It is interesting that Section 35 is not a part of the Charter of Rights which has the reasonable limits test spelled out in Section 1. The courts are still willing to invent a similar reasonableness provision for section 35. Years may pass until the true meaning of Section 35 is fleshed out fully.

One can sympathize with the court in making this interpretation of section 35. One alternative would have been to take whatever regulations that had been in effect on the day the constitution came into effect, and give them the force of the constitution. This interpretation would have divided the country into a mosaic of zones, each with laws that differed. The courts would have become bogged down in determining what the regulations in each area were on April 17, 1982. Further changes, even to the length of the fishing season would -- at least as far as natives are concerned -- require a constitutional amendment. A patchwork like this would be impossible to administer, and would make a laughing stock of Canada when laws of various jurisdictions are compared.

In 1983, a further amendment was made to section 35. Subsection 3 includes rights obtained in land claims agreements, thus constitutionalizing these documents. Land claims agreements are the documents that have replaced Indian treaties. The few that have been negotiated so far (like the James Bay Agreement) are much more detailed than the older treaties.

Subsection 4 GUARANTEES these rights to males and females equally. In a constitution something that is guaranteed is on a much firmer ground than something that is recognized and affirmed. The courts have yet to speak on what changes to the principle in Sparrow this change will make. With the almost ten year lag that a typical case takes to come through the Supreme Court, it is likely that native law will be a hot topic well into the twenty first century.

Pending in The Courts ... On to the Future

The courts are always reluctant to "find" any more law than is absolutely necessary to try a given case. This reluctance is understandable given the onus on the court that its judgments appear to be consistent and not contradictory. With the coming of the Constitution Act the Court's role is really that of author of our continuing constitution. The Court must at this point deal with several loose ends in constitutional law, and tie them off as guy wires on the Native Law pyramid, or risk that structure crumbling into disarray.

Bibliography:

Cheffins, R.I. & Johnson, P.A.,The Revised Canadian Constitution: Politics as Law (1986) McGraw Hill Ryerson, Toronto.

Elliott, David W. (ed.), Law and Native Peoples of Canada (1990) Dept of Law, Carleton University,Ottawa.

Mandel Michael, The Charter of Rights and the Legalization of Politics in Canada (1989) Wall & Thompson, Toronto

Morse, Bradford W., Aboriginal Peoples and the Law: Indian, Metis, and Inuit rights in Canada (revised First Edition) (1991) Carleton University Press.

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