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CONSTITUTIONAL LAW

20 ABORIGINAL PEOPLE: DIVISION OF POWERS AND GOVERNANCEShigenori Matsui

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INTRODUCTION

Who are the aboriginal people?

What is the power of the federal Parliament and provinces?

Is the self-governance by aboriginal people constitutionally guaranteed?

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I ABORGINAL PEOPLE

S. 35(2) Indian, Inuit, and Métis

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Indian

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Inuit

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Métis

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II STATUS OF ABORIGINAL PEOPLE AND PROTECTION OF THEIR RIGHTS

The Royal Proclamation of 1763 Recognized that Indians had rights in their

lands Established imperial control over settlement

on Indian lands Prohibited private purchase of Indian lands,

and Required the alienation of Indian rights in their

lands only by way of surrender to the Crown

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S. 91(24) of the Constitution Act, 1867 gave the power over “Indians, and Lands reserved for the Indians” to the federal Parliament

S. 109 also provided: “All Lands… belonging to the several Provinces of

Canada, Nova Scotia, and New Brunswick at the Union…shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise, subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same.”

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Prior to 1973,it had been believed that the Royal Proclamation was the sole legal source of aboriginal rights.

St. Catherine’s Milling and Lumber Co. v. the Queen (1888)

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Yet, in Calder v. A-G British Columbia [1973], the Supreme Court of Canada opened the possibility of other sources.

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“There can be no doubt that the Privy Council found that the Proclamation of 1763 was the origin of the Indian title-- "Their possession, such as it was, can only be ascribed to the Royal Proclamation in favour of all Indian tribes then living under the sovereignty and protection of the British Crown."

I do not take these reasons to mean that the Proclamation was the exclusive source of Indian title.”

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Guerin v. The Queen [1984]

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“In my view, the nature of Indian title and the framework of the statutory scheme established for disposing of Indian land places upon the Crown an equitable obligation, enforceable by the courts, to deal with the land for the benefit of the Indians. This obligation does not amount to a trust in the private law sense. It is rather a fiduciary duty. If however, the Crown breaches this fiduciary duty it will be liable to the Indians in the same way and to the same extent as if such a trust were in effect.”

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“The fiduciary relationship between the Crown and the Indians has its roots in the concept of aboriginal, native or Indian title. The fact that Indian Bands have a certain interest in lands does not, however, in itself give rise to a fiduciary relationship between the Indians and the Crown. The conclusion that the Crown is a fiduciary depends upon the further proposition that the Indian interest in the land is inalienable except upon surrender to the Crown.”

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In Calder v. Attorney General of British Columbia, [1973] S.C.R. 313, this Court recognized aboriginal title as a legal right derived from the Indians' historic occupation and possession of their tribal lands…In recognizing that the Proclamation is not the sole source of Indian title the Calder decision went beyond the judgment of the Privy Council in St. Catherine's Milling and Lumber Co. v. The Queen (1888)…

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“Indians have a legal right to occupy and possess certain lands, the ultimate title to which is in the Crown. While their interest does not, strictly speaking, amount to beneficial ownership, neither is its nature completely exhausted by the concept of a personal right. It is true that the sui generis interest which the Indians have in the land is personal in the sense that it cannot be transferred to a grantee, but it is also true, as will presently appear, that the interest gives rise upon surrender to a distinctive fiduciary obligation on the part of the Crown to deal with the land for the benefit of the surrendering Indians.”

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Now, s. 35 of the Constitution Act, 1982 affirmed these aboriginal rights as constitutional rights: 35. (1) The existing aboriginal and treaty rights of the

aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit, and Métis peoples of Canada.

(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

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Aboriginal title and aboriginal rights

Fiduciary duty of the crown

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III DIVISION OF POWERS AND ABORIGINAL SELF-GOVERNANCE

Federal power over Indians and lands reserved for the Indians Necessity of protecting Indians Two separate powers: the power over

Indians and the power over lands reserved for the Indians

Meaning of “Indians” To what extent the Parliament could enact

laws to regulate Indians?

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The provincial legislature has a power to regulate the residents, including aboriginal people, under its power over property and civil rights within the province under s. 92 (13). The Supreme Court of Canada has developed the jurisprudence of allowing application of general provincial laws to Indians and land reserved for the Indians. Yet, there is a constitutional limit.

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s. 88 of the Indian Act, R.S.C. 1970 “Subject to the terms of any treaty and any other Act

of the Parliament of Canada, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that such laws are inconsistent with this Act or any order, rule, regulation or by-law made thereunder, and except to the extent that such laws make provision for any matter for which provision is made by or under this Act.”

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Delgamuukw v. British Columbia, [1997]

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“…the Court has held that s. 91(24) protects a "core" of Indianness from provincial intrusion, through the doctrine of interjurisdictional immunity.

It follows, at the very least, that this core falls within the scope of federal jurisdiction over Indians. That core, for reasons I will develop, encompasses aboriginal rights, including the rights that are recognized and affirmed by s. 35(1). Laws which purport to extinguish those rights therefore touch the core of Indianness which lies at the heart of s. 91(24), and are beyond the legislative competence of the provinces to enact.”

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“The core of Indianness encompasses the whole range of aboriginal rights that are protected by s. 35(1). Those rights include rights in relation to land; that part of the core derives from s. 91(24)'s reference to "Lands reserved for the Indians". But those rights also encompass practices, customs and traditions which are not tied to land as well; that part of the core can be traced to federal jurisdiction over "Indians". Provincial governments are prevented from legislating in relation to both types of aboriginal rights.”

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“The vesting of exclusive jurisdiction with the federal government over Indians and Indian lands under s. 91(24), operates to preclude provincial laws in relation to those matters. Thus, provincial laws which single out Indians for special treatment are ultra vires, because they are in relation to Indians and therefore invade federal jurisdiction…In other words, notwithstanding s. 91(24), provincial laws of general application apply proprio vigore to Indians and Indian lands. ”

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“What must be answered, however, is whether the same principle allows provincial laws of general application to extinguish aboriginal rights. I have come to the conclusion that a provincial law of general application could not have this effect, for two reasons. First, a law of general application cannot, by definition, meet the standard which has been set by this Court for the extinguishment of aboriginal rights without being ultra vires the province.

“Second, …s. 91(24) protects a core of federal jurisdiction even from provincial laws of general application, through the operation of the doctrine of interjurisdictional immunity.”

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Provincial laws which would otherwise not apply to Indians proprio vigore, however, are allowed to do so by s. 88 of the Indian Act, which incorporates by reference provincial laws of general application... However, it is important to note… that s. 88 does not "invigorate" provincial laws which are invalid because they are in relation to Indians and Indian lands... What this means is that s. 88 extends the effect of provincial laws of general application which cannot apply to Indians and Indian lands because they touch on the Indianness at the core of s. 91(24).

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Dick v. The Queen, [1985]

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I believe that a distinction should be drawn between two categories of provincial laws. There are, on the one hand, provincial laws which can be applied to Indians without touching their Indianness, like traffic legislation; there are on the other hand, provincial laws which cannot apply to Indians without regulating them qua Indians.

Laws of the first category, in my opinion, continue to apply to Indians ex proprio vigore as they always did before the enactment of s. 88…and quite apart from s. 88. I have come to the view that it is to the laws of the second category that s. 88 refers.

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Kitkatla Band v. British Columbia, [2002]

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In considering this question, the Court must assess a number of factors. First, the Court must remember the basic assumption that provincial laws can apply to aboriginal peoples; First Nations are not enclaves of federal power in a sea of provincial jurisdiction…. The mere mention of the word "aboriginal" in a statutory provision does not render it ultra vires the province.

Second, it is clear that legislation which singles out aboriginal people for special treatment is ultra vires the province…

Nevertheless, "singling out" should not be confused with disproportionate effect….

R v. Morris [2006]

“Parliament has exclusive power to make laws in relation to "Indians, and Lands reserved for the Indians". Provincial laws whose "pith and substance" relates to this head of power are ultra vires and invalid... However, provincial laws of general application that affect Indians only incidentally and are enacted under a provincial head of power will be found to be intra vires and valid.

In this case, there is no question that the relevant provisions of the Wildlife Act are valid provincial legislation under s. 92(13) of the Constitution Act, 1867, which refers to Property and Civil Rights in the Province.”

“Insignificant interference with a treaty right will not engage the protection afforded by s. 88 of the Indian Act... Therefore, provincial laws or regulations that place a modest burden on a person exercising a treaty right or that interfere in an insignificant way with the exercise of that right do not infringe the right.

A prima facie infringement, however, will trigger the s. 88 treaty right protection.”

“If provincial laws or regulations interfere insignificantly with the exercise of treaty rights, they will not be found to infringe them and can apply ex proprio vigore or by incorporation under s. 88.

The protection of treaty rights in s. 88 of the Indian Act applies where a conflict between a provincial law of general application and a treaty is such that it amounts to a prima facie infringement. Where a provincial law of general application is found to conflict with a treaty in a way that constitutes a prima facie infringement, the protection of treaty rights prevails and the provincial law cannot be incorporated under s. 88.”

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IV SELF-GOVERNMENT Do aboriginal people have a right of self-

governance? R. v. Pamajewon, [1996]

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Assuming without deciding that s. 35(1) includes self-government claims, the applicable legal standard is nonetheless that laid out in Van der Peet, supra. Assuming s. 35(1) encompasses claims to aboriginal self-government, such claims must be considered in light of the purposes underlying that provision and must, therefore, be considered against the test derived from consideration of those purposes. This is the test laid out in Van der Peet, supra. In so far as they can be made under s. 35(1), claims to self-government are no different from other claims to the enjoyment of aboriginal rights and must, as such, be measured against the same standard.”

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Mitchell v. MNR [2001]

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This Court has not expressly invoked the doctrine of "sovereign incompatibility" in defining the rights protected under s. 35(1). In the Van der Peet trilogy, this Court identified the aboriginal rights protected under s. 35(1) as those practices, customs and traditions integral to the distinctive cultures of aboriginal societies... Subsequent cases affirmed this approach to identifying aboriginal rights falling within the aegis of s. 35(1)…and have affirmed the doctrines of extinguishment, infringement and justification as the appropriate framework for resolving conflicts between aboriginal rights and competing claims, including claims based on Crown sovereignty.

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The Crown now contends that "sovereign incompatibility" is an implicit element of the Van der Peet test for identifying protected aboriginal rights, or at least a necessary addition. In view of my conclusion that Chief Mitchell has not established that the Mohawks traditionally transported goods for trade across the present Canada-U.S. border, and hence has not proven his claim to an aboriginal right, I need not consider the merits of this submission. Rather, I would prefer to refrain from comment on the extent, if any, to which colonial laws of sovereign succession are relevant to the definition of aboriginal rights under s. 35(1) until such time as it is necessary for the Court to resolve this issue.

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Should the right of self-government be admitted as an aboriginal right under s. 35?

If the aboriginal people are granted the right of self-government, what would be the appropriate relationship between the federal government and provincial government?

Should the self-government allow the self-governance beyond state border?