Indigenous Peoples and the Canadian Constitution

AuthorPatrick J. Monahan/Byron Shaw/Padraic Ryan
1) Rights Existing at Common Law
Prior to the arrival of Europeans in North Amer ica, many diverse In-
digenous 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 Brit ish North America.1 Despite the ultimate
sovereignty of the Crown, Briti sh law recognized t he right of Indigen-
ous peoples to continue occupying their traditional lands a nd 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 Amer ica. The Royal Proclamation expressly
reserved to Indigenous 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 Royal Proc-
lamation also recognized th at Indigenous interest in lands appropri ated
for settlement could only be purchased through agreements concluded
with the Crown following a public meeting involving the Indigenous
1 Guerin v. R., [1984] 2 S.C.R. 335 [Guerin]. See al so the discussion in Ch apter 2,
Section B(1).
2 (U.K.), reprinted in R .S.C. 1985, App. II, No. 1.
3 Ibid.
community. Further, it provided that no private person could directly
acquire Indigenous interest in land.
Until relatively recently, the precise origins, n ature, and status of
Indigenous rights at common law was somewhat unclear.4 In 1888, the
Privy Council, in t he St. Catherine’s Milling case,5 stated that on the
successful assertion of British sovereignty, the Crown acquired a “sub-
stantial and paramount estate” over all territorie s subject to such sover-
eignty. However, the Privy Council also held that Indigenous peoples
continued to have a possessor y right, or a right of continued occupancy,
in their traditional lands. Lord Watson described the Indigenous pos-
sessory intere st as a “personal and usufructua ry right.” It was said to be
a “qualif‌ication” or a “mere burden” on the underlying and paramount
Crown estate.6 Lord Watson also stated t hat the Indigenous interest
in land had been created through its express recog nition in the Roya l
It was not until 1973, in the historic and celebrated decision in Cal-
der v. British Columbia (Attorney-General),8 that the Supreme Court ex-
pressed a different view as to the origins of Indigenous rights. Although
the ultimate result in t he case was inconclusive, six of the seven members
of the Court agreed that Indigenous title was a legal right derived from
Indigenous peoples’ historic occupation and posse ssion of their tribal
4 However, pre-Confederation gover nments did enact legisl ation relating to
Indigenous peoples i n various statutes. See for ex ample, An Act respecting the
Assessment of Prope rty in Upper Canada, C. S.U.C. 1859, c. 55, ss. 20–22 def‌ini ng
“Indians” as “I ndians or persons of Indi an blood or intermarr ied with Indians,
acknowledged as mem bers of Indian Tribes or Band s residing upon lands whic h
have never been sur rendered to the Crown (or which havi ng been so surren-
dered have been set ap art or are then reserve d for the use of any Tribe or Band
of Indians i n common).” See also the discu ssion below at Section B(2).
5 St. Catherine’s Milling and Lumber Co. v. R . (1888), 14 A.C. 46 [St. Catherine’s
6 According to the Priv y Council, on surrender or ext inguishment of the In-
digenous intere st, the Crown’s estate became a ple num dominium, which was no
longer burdened by the Ind igenous interest. Further, the P rivy Council decided
in St. Cather ine’s Milling that on surrender, the ent ire estate in land reverte d to
the provinci al Crown rather than t he federal Crown, even if the sur render had
been negotiated by t he federal Crown, through t he operation of s. 109 of the
Constitution Act, 1867. Section 109 granted the provi nces 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 as it w as, can only be
ascribe d to the general provisions ma de by the Royal proclamation i n favour of
all Indian t ribes then livin g under the sovereignty and protect ion of the British
Crow n” (ibid. at 54).
8 [1973] S.C.R. 313 [Calder].
Indigenous Peoples and t he Canadian Constit ution 475
lands, rather than as a result of the Royal Proclamation.9 As such, the
Indigenous 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 Cal der, the government of Canada re-
versed a long-standing policy and an nounced its willingness to negotiate
land claims based on outstanding or unsurrendered Indigenous title.
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 m ajority,12 Indigenous title is a legal right to occupy and possess
certain lands a nd the ultimate title rests with the Crow n. There are two
characterist ics of Indigenous title, which makes the interest sui generis or
unique. First, Indigenous title is inalienable except to the Crown and
cannot be transferred to a third par ty. The basis for this limitation was
that the Crown should be interposed between Indigenous peoples and
prospective purchasers so a s to prevent exploitation, a principle that was
recognized in t he Royal Proclamation.13 Second, a surrender to the Crown
9 Judson J., with whom Mar tland and Ritchie JJ. concur red, found that whatever
rights the I ndigenous peoples in British Colu mbia possessed had b een extin-
guished th rough general land enactment s in the province, while Hal l J., with
whom Spence and Lask in JJ. concurred, held th at Indigenous peoples’ rights
had not been ext inguished through the en actments. However, both Judson
and Hall JJ. ag reed that the Royal Proclamation was not the exclusive s ource of
Indigenous intere sts in land in the provi nce. The seventh member of the Court,
Pigeon J., dismis sed the claim on technic al grounds and did not expre ss a view
as to the natu re of Indigenous rights.
10 Ibid. at 390 (per H all J., Spence and Laskin JJ. concu rring). This holding allowe d
the Court to avoid hav ing to determine the prec ise territorial appl ication of the
Royal Proclamation. Judson J. did expres s the view that the Royal Proclamation
did not extend th roughout British Columbia, while H all J. was of the view that
the Proclam ation did apply to all of British C olumbia. Because Indigenous r ights
arise th rough the operation of common law, they apply th roughout Canada with-
out regard to whether the t erritory in question w as subject to the Royal P roclama-
tion. See B. Slatter y, “Making Se nse of Indigenous and Treaty Right s” (2000) 79
Can. Bar Rev. 196.
11 Ab ove note 1. Note that, although decided in 1984, thi s litigation was com-
menced prior to 1982 and thus m ade no reference to the enactment of s. 35(1) of
the Constitution Act, 1982.
12 Dicks on 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 Dic kson did not explain why the r ule of inalienability e xcept to the
Crown ari ses from the common law. As discu ssed above, the principle was s et
out in the Royal Proclamation. Furthermore, as Dickson J. poi nted out, succes-
sive versions of the Ind ian Act carried forwa rd this policy and perm itted alien-
ation of Indigenous inte rests in land only to the Crow n. Therefore, it is unclear
why Dickson J. held th at the source of the limitation of i nalienability ar ises

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