B. Constitutional Status of Aboriginal Rights Prior to 1982

Author:Patrick J. Monahan - Byron Shaw

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1) Introduction

Prior to 1982, the doctrine of parliamentary sovereignty applied to Aboriginal rights, which meant that Aboriginal rights could be limited or extinguished through legislation enacted by the appropriate legislative body. However, although there was no constitutional protection for Aboriginal rights per se, there were a variety of constitutional rules governing the limitation or extinguishment of Aboriginal rights could occur.

2) Federal Legislative Power

Section 91(24) of the Constitution Act, 1867 confers on the Parliament of Canada the authority to enact laws in relation to "Indians and Lands reserved for Indians." The original version of the Indian Act, enacted in 1876, defined an "Indian" generally as any "male person of Indian blood reputed to belong to a particular band," any of his children, and his legal wife.56This definition proved controversial since it meant that an Indian woman who married a non-Indian man would lose her status for the purposes of the Indian Act. Conversely, a non-Indian woman who married an Indian man would automatically acquire status.57Successive versions of the Indian Act also identified a number of other ways that "Indians" could lose status under the Indian Act.58In 1985, Par-

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liament repealed these discriminatory provisions and restored status to many Aboriginal persons who had voluntarily or involuntarily lost their status in the past.59The contemporary definition of the term "Indian" is based on those persons who were entitled to be registered as "Indians" immediately prior to 17 April 1985.60The meaning of the term "Indian" for purposes of section 91(24) of the Constitution Act, 1867 is not limited to the definition in the Indian Act. For example, in 1939, the Supreme Court held that Inuit were subject to federal jurisdiction and fell within the definition of "Indians" for purposes of section 91(24).61The case did not address the definition of "Indian" under the Indian Act and, in fact, the statute was subsequently amended to expressly exclude the Inuit from its application.62In R. v. Blais,63the Supreme Court did not address the question of whether the term "Indians" in section 91(24) included the Métis, since the issue did not require to be resolved in the case. Nonetheless, it is likely that the Métis, like the Inuit, would be considered "Indians" for the purposes of section 91(24).

Section 35(1) of the Constitution Act, 1982 provides that "[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed." The term "aboriginal peoples" for the purposes of section 35(1) includes "the Indian, Inuit and Métis people of Canada."64Thus it is evident that significant numbers of

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Aboriginal persons - those who are "non-status Indians"65as well as Métis - are also probably included within the term "Indians" for purposes of section 91(24) of the Constitution Act, 1867, even though Parliament has chosen not to include them within the Indian Act.66Section 91(24) authorizes Parliament to enact laws dealing with "Indians" and "lands reserved for Indians" that would not be permissible in relation to non-Indians. For example, the Indian Act contains provisions regulating such matters as the validity of wills, the distribution of property on intestacy, guardianship in relation to minors, and the management of Indian lands, all of which would normally be regarded as falling within provincial jurisdiction in relation to property and civil rights. However, because these provisions deal with the status or rights of Aboriginal persons only, they are validly enacted by Parliament pursuant to its jurisdiction under section 91(24).67Prior to 1982, Parliament could regulate, limit, or even extinguish Aboriginal rights, existing at common law or by treaty through the enactment of legislation.68However, any legislation purporting to extinguish Aboriginal rights had to evince a "clear and plain intention." Extensive and detailed regulation of a right would not meet the clear and plain intention test. For example, in Sparrow,69the Supreme Court considered regulations enacted under the Fisheries Act dating to 1878,

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which had subjected the Aboriginal right to fish to increasingly restrictive and detailed regulatory control. Pursuant to these regulations, Aboriginal persons wishing to fish for food required a special licence issued to individual Indians at the discretion of the minister and subject to terms and conditions which, if breached, could result in the cancellation of the licence. The Supreme Court, in a judgment written by Dickson C.J. and La Forest J. held that such detailed regulation did not demonstrate the requisite clear and plain intention to extinguish the Aboriginal right to fish. According to Dickson C.J. and La Forest J., there is a distinction between regulation and extinguishment, and even detailed and restrictive control over a right does not amount to a clear and plain intention to extinguish that right. Subsequently, in Gladstone,70the Supreme Court held that an Aboriginal right to fish for commercial purposes survived despite a regulation which permitted Aboriginal fishing for food purposes only. Clearly, the trend in the modern cases is to apply a very strict test in determining whether legislation manifests a clear and plain intention to extinguish an Aboriginal right.

As discussed above, section 35(1) of the Constitution Act, 1982 provides that Aboriginal and treaty rights are recognized and affirmed. As a result, since 1982, it is no longer open to Parliament to extinguish Aboriginal or treaty rights. Aboriginal or treaty rights can only be extinguished by voluntary surrender of rights by Aboriginal peoples to the Crown71or by the process of constitutional amendment, discussed in further detail below.

3) Provincial Legislative Power
a) Provincial Laws of General Application

Although provinces cannot enact laws in relation to "Indians" - a matter expressly reserved to Parliament under section 91(24) - provincial laws of general application may apply to "Indians" or "Indian" lands.72

This is a straightforward application of the pith and substance doctrine;

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laws validly enacted by one level of government may incidentally affect matters otherwise subject to the jurisdiction of the other level. Thus, provincial traffic laws or labour relations laws can validly apply to "Indians," even in respect of activities occurring on an "Indian" reserve.73

Since the pith and substance or main purpose of such legislation is to ensure traffic safety or to regulate employer-union relations rather than to regulate Aboriginal peoples per se, the legislation may be validly applied throughout the province, including in respect of Aboriginal peoples. On the other hand, if a province enacted legislation specifically aimed at derogating from the rights of Aboriginal peoples, the legislation would be ultra vires, since it would represent an impermissible intrusion into an area of exclusive federal jurisdiction.74Such a law is sometimes said to be invalid on the basis that it has singled out Aboriginal peoples for special or differential treatment.

A provincial law may be primarily intended to apply to Aboriginal peoples, and still be validly enacted by a province. In Lovelace,75the province of Ontario had entered into an agreement with First Nations in the province for the development of a commercial casino on an Indian reserve. The proceeds from the casino were to be allocated largely for the benefit of Ontario Bands registered under the Indian Act. The casino development was attacked by a number of non-status Indian and Métis communities in the province on the basis that it was an ultra vires attempt to regulate a matter reserved to Parliament under section 91(24).76The Supreme Court rejected this argument, holding that section 91(24) does not preclude the development of provincial programs aimed specifically at Aboriginal people...

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