Aboriginal Peoples and the Canadian Constitution
| Author | Patrick J. Monahan, Byron Shaw |
| Pages | 474-518 |
474
CH AP TE R 14
ABORIGINA L PEOPLES
AND THE CANADIAN
CONSTITUTION
A. THE N ATU RE OF A BORIGI NA L R IGHTS
1) Rights Existing at Common Law
Prior to the arrival of Europeans in North America, ma ny diverse Ab-
original peoples had occupied the lands that now comprise Canada.
The arrival of European settlers and the defeat of French forces by the
British in 1760 established British laws and t he ultimate sovereignty of
the British Crown over British North America.1 Despite the ultimate
sovereignty of the Crown, Briti sh law recognized the right of Aborig-
inal peoples to continue occupying t heir traditional lands and hunting
grounds. The Royal Proclamation of 17632 was issued by George III in
order to establish the form of civil govern ment applicable to the British
colonies in British North America. The Royal Proclamation expressly
reserved to Aboriginal peoples “such Parts of Our Dominions and Ter-
ritories as, not having been ceded to or purchased by Us, are reserved
to them, or any of them, as their Hunting Grounds.”3 The Roya l Proc-
lamation also recognized that Abor iginal interest in lands appropriated
for settlement could only be purchased through agreements concluded
section B(1).
2 (U.K.), reprinted i n R.S.C. 1985, App. II, No. 1.
3 Ibid.
Aborigin al Peoples and the Canadia n Constitution 475
with the Crown following a public meeting i nvolving the Aboriginal
community. Further, it provided that no private person could directly
acquire Aborigina l interest in land.
Until relatively recently, the precise origins, n ature, and status of
Aboriginal r ights at common law was somewhat unclear.4 In 1888, the
Privy Council, in t he St. Catherine’s Milling case,5 stated th at on the
successful assertion of British sovereignty, the Crown acquired a “sub-
stantial and paramount estate” over all territories subject to such sover-
eignty. However, the Privy Council also held that Aborig inal peoples
continued to have a possessor y right, or a right of continued occupancy,
in their traditional lands. The Aboriginal pos sessory interest was de-
scribed by Lord Watson as a “personal and usufructuar y right.” It was
said to be a “qualification” or a “mere burden” on the underlying and
paramount Crown estate.6 Lord Watson also st ated that the Aboriginal
interest in land had been c reated through its express recognition in the
Royal Proclamation.7
It was not until 1973, in the historic and celebrated decision in Cal-
der v. B.C. (A.G.),8 that the Supreme Court expressed a different view as
to the origins of Aborig inal rights. Although the ultimate result in the
case was inconclusive, six of the seven member s of the Court agreed
that Aboriginal title was a legal right derived from Aboriginal peoples’
4 However, the federal govern ment had enacted legislation r elating to Aborigin al
peoples in var ious statutes prior to Confederat ion. See for example, An Act re-
specting the Assessm ent of Property in Upper Cana da, C.S.U.C. 1859, c. 55, ss. 20–
22 defining “Ind ians” as “Indians or per sons of Indian blood or inter married
with Indi ans, acknowledged as member s of Indian Tribes or Bands re siding
upon lands whic h have never been surrendered to t he Crown (or which having
been so surr endered have been set apart or are t hen reserved for the use of any
Tribe or Band of India ns in common).” See also the d iscussion below at section
B(2).
5 St. Ca therine’s Milling and Lumber Co. v. R. (1888), 14 A.C. 46 [St. Catherine’s
Milling].
6 Accordi ng to the Privy Council, on s urrender or extingui shment of the Ab-
origina l interest, the Crown’s estate b ecame a plenum dominium, which wa s no
longer burdened by the Ab original interest. F urther, the Privy Counci l decided
in St. Cather ine’s Milling that on surrender, the ent ire estate in land revert ed to
the provinci al Crown rather than t he federal Crown, even if the su rrender had
been negotiated b y the federal Crown, through t he operation of s. 109 of the
Constitution Act, 1867. Section 109 granted the prov inces ownership of all public
lands, subject to a ny “interest other than t hat of the Province.”
7 According to Lord Wats on: “[t]heir possession, such a s it was, can only be as-
cribed to the ge neral provisions made by t he Royal proclamation in favour of
all Indian t ribes then livi ng under the sovereignty and protec tion of the British
Crown” (at 54).
8 [1973] S.C.R. 313 [Calder].
CONSTITUTIONA L LAW
476
historic occupation and posse ssion of their tribal lands, rather than
as a result of the Royal Proclamation.9 As such, the Aboriginal interest
arose through the operation of the common law and did not depend
on “treaty, executive order, or legislative enactment.”10 A few months
after the release of Cald er, the government of Canada reversed a long-
standing policy and an nounced its will ingness to negotiate land claims
based on outstanding or un surrendered Aboriginal t itle.
In Guerin v. R.,11 the Supreme Court affirmed and expanded on the
reasoning in C ald er. According to Dickson J., who wrote the reasons
of the major ity,12 Aboriginal title is a legal right to occupy and possess
certain land s and the ultimate title rests with t he Crown. There are two
characterist ics of Aboriginal title which ma kes the interest sui ge neris
or unique. First, Aborigina l title is inalienable except to the Crown and
cannot be transferred to a third party. The basis for this limitation was
that the Crown should be interposed between Aboriginal peoples and
prospective purchasers so a s to prevent exploitation, a principle that
was recognized in the Royal Proclamation.13 Second, a surrender to the
9 Judson J., wit h whom Martland and Ritc hie JJ. concurred, found that wh atever
rights the Ab original peoples in Br itish Columbia posses sed had been extin-
guished th rough general land enactment s in the province, while Ha ll J., with
whom Spence and Lask in JJ. concurred, held that A boriginal peoples’ ri ghts had
not been extin guished through the enac tments. However, both Judson and Hall
JJ. agreed th at the Royal Proclamation was not the exclu sive source of Aboriginal
interests i n land in the province. The sevent h member of the Court, Pigeon J.,
dismis sed the claim on technic al grounds and did not expre ss a view as to the
nature of Abori ginal rights.
10 Ibid. at 390 (per H all J., Spence and Laskin JJ. concu rring). This holding al-
lowed the Court to avoid ha ving to determine the prec ise territorial appl ication
of the Royal Proclamation. Judson J. did expres s the view that the Roya l Proc-
lamation did not ext end throughout B.C., while Hall J. was of the v iew that the
Proclamat ion did apply to all of B.C. Because Abor iginal rights ar ise through
the operation of comm on law, they apply throug hout Canada without regard
to whether the ter ritory in question was subje ct to the Royal Proclamation. See
B. Slattery, “Maki ng Sense of Aborigina l and Treaty Rights” (2000) 79 Can. Bar
Re v. 196.
11 Above note 1. Note that, althoug h decided in 1984, this litigation w as com-
menced prior to 1982 and thu s made no reference to the enactment of s. 35(1) of
the Constitution Act, 1982.
12 Dickson J. (as he then was) wrote rea sons with which Beetz, C houinard, and
Lamer JJ. concur red; Estey J., with whom Wilson J. concu rred, wrote separate
reasons, conc urring in the result .
13 Justice Dickson did not ex plain why the rule of inal ienability except to the
Crown ari ses from the common law. As discu ssed above, the principle was s et
out in the Royal Proclamation. Furthermore, a s Dickson J. pointed out, succes-
sive versions of the In dian Act carried forwa rd this policy and per mitted aliena-
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