C. Constitutional Status of Aboriginal Rights Since 1982
| Author | Patrick J. Monahan - Byron Shaw |
| Pages | 497-518 |
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The constitutional status and rights of Aboriginal peoples in Canada were fundamentally altered by the enactment of section 35 of the Constitution Act, 1982. As discussed above, section 35(1) provides that "[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed." Section 35 defines the "aboriginal peoples of Canada" as including the Indian, Inuit, and Métis peoples of Canada and provides that "treaty rights" include rights acquired under land claim agreements entered into after section 35 came into force.95Section 35 also provides that it guarantees rights equally to male and female persons.96Section 35 is included in Part II of the Constitution Act, 1982. It is not part of the Charter of Rights and Freedoms. This means that the rights protected pursuant to section 35 are not subject to limitation under section 1 nor are they subject to legislative override through the use of a notwithstanding clause enacted under section 33. Further, the rights guaranteed by section 35 are binding on private parties and not just legislatures or governments, since section 32 - the clause limiting the application of the Charter to legislatures and government - does not apply to section 35.
Section 35 means that Aboriginal rights are no longer subject to the doctrine of parliamentary supremacy which, prior to 1982, permitted Parliament to abrogate or derogate from Aboriginal rights through statutes that evinced a clear and plain intention to achieve this result. On the other hand, section 35 does not provide absolute protection for Aboriginal rights from the application of inconsistent federal or provincial laws. Instead, the Supreme Court has developed a framework for the interpretation of section 35 which requires a careful balancing of interests between Aboriginal rights on the one hand and the role of Parliament and the provincial legislatures to advance the collective interests of the community as a whole on the other.
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In Sparrow,97the Supreme Court developed a four-part test for the application of section 35(1) of the Constitution Act, 1982. First, claimants must demonstrate that he or she was acting pursuant to a right protected by section 35. Second, the right in question must be an "existing" right,98which the Court in Sparrow defined as a right that had not been extinguished by Parliament prior to 1982. Third, there must be an infringement of the protected Aboriginal right. Fourth, if there has been an infringement, it must be determined whether the infringement can be justified.99The first step in the Sparrow test - proof of a protected Aboriginal right - is governed either by the terms of a treaty or in accordance with the test elaborated in Van der Peet.100Van der Peet decided that the determination of whether there is a protected Aboriginal right involves two elements. The first is to "identify precisely the nature of the claim being made." The court will look to the nature of the particular activities that were being engaged in by the Aboriginal claimant, as well as the nature of the impugned government regulation, and the nature of
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the custom or tradition that is being relied on to establish an Aboriginal right. It is also essential to take into account the perspective of the Aboriginal people claiming the right. The activities in question will be considered at a general rather than a specific level. For example, in Van der Peet, the Aboriginal claimant had been charged with selling fish caught under the authority of an Aboriginal food fishing licence. The Court of Appeal held that the right being claimed was the right to sell fish "on a commercial basis." However, the Supreme Court held that this characterization was in error and that the right in question should be characterized more generally as simply the practice of "selling fish."101Other cases have generally described the right in question as involving the right to engage in specific activities such as hunting or fishing for specific purposes in relation to particular lands or territories.102The second element in the determination of whether the claim qualifies as a protected Aboriginal right is whether it is based on a "practice, custom, or tradition integral to the distinctive culture of the Aboriginal [people] claiming the right."103Such rights will be specific rather than universal, and must be determined on a case-by-case basis. The relevant period of time for determining whether the activity or practice in question was "integral to the distinctive culture" is generally prior to contact with Europeans;104moreover, there must be continuity between the contemporary activity or practice for which constitutional protection is claimed and the pre-contact activity or practice.105On the
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other hand, Aboriginal rights must be interpreted flexibly, so as to recognize that customs and traditions will evolve over time.106Moreover, courts should apply evidentiary rules flexibly, taking into account the difficulty of proving a right that originated in times where there were no written records of the practices, customs, or traditions engaged in. This means, for example, attempting to take appropriate account of oral histories in establishing the existence of Aboriginal claims.107If the existence of a protected Aboriginal right is established, either because the Van der Peet test is satisfied or because the activity is question is protected through a treaty, the court moves to the second stage of the Sparrow test - the determination of whether the right was an "existing" right at the time of the enactment of section 35(1) of the Constitution Act, 1982. An "existing" right is a right that was not previously extinguished through the enactment of valid federal legislation or regulation. Provincial laws can limit but cannot extinguish Aboriginal rights.108Only federal enactments that evince a clear and plain intention to extinguish an Aboriginal right can have this effect. As discussed above, the test for determining whether this intention is present is a demanding one. Even detailed regulation and prohibition of certain
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activities has been interpreted in recent cases as being consistent with the continued existence of an Aboriginal right.
If the right in question was not extinguished prior to 1982, the third stage of the Sparrow test involves a consideration of whether there has been a prima facie infringement of the right. A prima facie infringement will generally be found where the regulation in question significantly burdens the preferred mode or manner of exercise of a protected right. Thus, regulatory schemes which provide for broad or unstructured administrative discretion, where the exercise of such discretion may carry significant consequences for the exercise of an Aboriginal right, will generally constitute a prima facie infringement.109However, not all forms of regulation will amount to a prima facie infringement of a protected right. In Côté,110the Supreme Court distinguished between a licensing scheme that did not prescribe any criteria for the exercise of discretion - which was found to infringe an Aboriginal right - and a regulation requiring the payment of a fee in order to exercise an Aboriginal right - which was found not to infringe the right. Chief Justice Lamer, who wrote reasons concurred in by seven of the nine members of the Court, emphasized the fact that the fee requirement was not a pure revenue-raising measure but was, instead, a carefully tailored user fee directed at the repair and improvement of a modern transportation network on the relevant lands. Although it imposed a financial burden on the exercise of a protected right, this burden did not amount to a prima facie infringement of the relevant Aboriginal right.
The fourth stage of the Sparrow test asks whether the infringement can be justified. Although section 35 is not subject to limitation under section 1 of the Charter, Sparrow established that Aboriginal and treaty rights are not absolute, and may be limited in appropriate circumstances by federal or provincial legislation.111The justification analysis is itself broken down into two distinct stages. First, the impugned law must be enacted for a "compelling and substantial objective," which the Supreme Court has described as objectives directed at the reconciliation of the prior occupation of North America by Aboriginal peoples with the assertion of the sovereignty of the Crown.112The objective of achieving reconciliation of Aboriginal societies with the broader community justifies laws enacted for conservation purposes, since such laws are designed to ensure that there are sufficient natural resources
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available for the entire community, including Aboriginal peoples. Other compelling and substantial objectives include the pursuit of "economic and regional fairness" and "the recognition of the historical reliance upon, and participation in the fishery by non-aboriginal groups," since these objectives also further the goal of reconciling Aboriginal rights with the interests of the broader community.113On the other hand, the objective of promoting sports fishing without a significant economic component would fail this aspect of the test of justification.114In Sparrow, the Court held that the use of the phrase "recognized and affirmed" in section 35 incorporated the fiduciary obligations owed by the Crown to Aboriginal peoples. Thus, the second stage of the justification test involves consideration of whether an infringement unduly restricts the Aboriginal right in question, and whether...
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