A. The Nature of Aboriginal Rights

AuthorPatrick J. Monahan - Byron Shaw
Pages474-487

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1) Rights Existing at Common Law

Prior to the arrival of Europeans in North America, many diverse Aboriginal 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 the ultimate sovereignty of the British Crown over British North America.1Despite the ultimate sovereignty of the Crown, British law recognized the right of Aboriginal peoples to continue occupying their traditional lands and hunting grounds. The Royal Proclamation of 17632was issued by George III in order to establish the form of civil government applicable to the British colonies in British North America. The Royal Proclamation expressly reserved to Aboriginal peoples "such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds."3The Royal Proclamation also recognized that Aboriginal interest in lands appropriated for settlement could only be purchased through agreements concluded

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with the Crown following a public meeting involving the Aboriginal community. Further, it provided that no private person could directly acquire Aboriginal interest in land.

Until relatively recently, the precise origins, nature, and status of Aboriginal rights at common law was somewhat unclear.4In 1888, the Privy Council, in the St. Catherine’s Milling case,5stated that on the successful assertion of British sovereignty, the Crown acquired a "substantial and paramount estate" over all territories subject to such sovereignty. However, the Privy Council also held that Aboriginal peoples continued to have a possessory right, or a right of continued occupancy, in their traditional lands. The Aboriginal possessory interest was described by Lord Watson as a "personal and usufructuary right." It was said to be a "qualification" or a "mere burden" on the underlying and paramount Crown estate.6Lord Watson also stated that the Aboriginal interest in land had been created through its express recognition in the Royal Proclamation.7It was not until 1973, in the historic and celebrated decision in Calder v. B.C. (A.G.),8that the Supreme Court expressed a different view as to the origins of Aboriginal rights. Although the ultimate result in the case was inconclusive, six of the seven members of the Court agreed that Aboriginal title was a legal right derived from Aboriginal peoples’

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historic occupation and possession of their tribal lands, rather than as a result of the Royal Proclamation.9As such, the Aboriginal interest arose through the operation of the common law and did not depend on "treaty, executive order, or legislative enactment."10A few months after the release of Calder, the government of Canada reversed a longstanding policy and announced its willingness to negotiate land claims based on outstanding or unsurrendered Aboriginal title.

In Guerin v. R.,11the Supreme Court affirmed and expanded on the reasoning in Calder. According to Dickson J., who wrote the reasons of the majority,12Aboriginal title is a legal right to occupy and possess certain lands and the ultimate title rests with the Crown. There are two characteristics of Aboriginal title which makes the interest sui generis or unique. First, Aboriginal 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 as to prevent exploitation, a principle that was recognized in the Royal Proclamation.13Second, a surrender to the

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Crown gives rise to a fiduciary obligation, such that the Crown is obliged to deal with surrendered land in the best interests of the Aboriginal peoples concerned. This fiduciary relationship demands "utmost loyalty" on the part of the Crown to the Aboriginal interest.14Dickson J. cautioned that it was "unnecessary and potentially misleading" to attempt to describe Aboriginal rights more precisely, beyond the above two key features. Applying these principles, Dickson J. found that the Crown had failed to discharge its fiduciary duty adequately, since it had leased surrendered land to a third party on terms less favourable than those that had been promised orally to the Aboriginal people at the time of the surrender.15

Certain members of the Supreme Court have departed from Dickson J.’s caution in Guerin and attempted to elaborate the specific content of Aboriginal land rights in far greater detail. In R. v. Van der Peet,16Lamer C.J. set out a general theory regarding the legal sources and nature of Aboriginal rights. Lamer C.J. affirmed the basic principle established in Calder and Guerin that Aboriginal rights arise at common law by virtue of the fact that "when Europeans arrived in North America, Aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries."17

Lamer C.J. noted that this view of Aboriginal rights found support in the early nineteenth-century opinions of Marshall C.J. of the U.S. Supreme Court,18as well as the 1992 decision of the Australian High

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Court in Mabo v. Queensland (No. 2).19Lamer C.J. then set out a test for identifying Aboriginal rights based on identifying the "practices, traditions and customs central to the Aboriginal societies that existed in North America prior to contact with the Europeans."20In order to be an Aboriginal right, an activity must be "an element of a practice, custom, or tradition integral to the distinctive culture of the Aboriginal group claiming the right."21Lamer C.J. set out a number of indicia for applying this "integral to a distinctive culture test," including the fact that the practice, custom, or tradition must have been "one of the things that truly made the society what it was"; that the relevant period for making this determination is prior to contact between European and Aboriginal societies; and that claims to Aboriginal rights must be adjudicated on a specific rather than a general basis.22Lamer C.J. also distinguished between Aboriginal rights and Aboriginal title. Aboriginal title, which is the exclusive right to occupy and use land, is a subcategory of Aboriginal rights. Although Aboriginal rights arise from the occupation of land, they can also arise from the prior social organization and distinctive cultures of Aboriginal peoples

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on their land. Thus, even in a case where an Aboriginal people cannot prove a right to exclusive occupancy and use of particular lands (which would ground a claim to Aboriginal title), they may be able to demonstrate that they engaged in a practice or activity that was integral to their distinctive culture that rises to the level of a protected Aboriginal right.

Lamer C.J. elaborated on the distinction between Aboriginal rights and Aboriginal title in Delgamuukw v. British Columbia.23According to Lamer C.J., Aboriginal title is "simply one manifestation of a broader-based conception of Aboriginal rights."24Aboriginal title arises where the connection of an Aboriginal people with a piece of land was "of central significance to their distinctive culture." An Aboriginal right is a distinctive practice, custom, or tradition that may or may not be connected to a specific location or piece of land.25Lamer C.J. then set out a list of characteristics or features of Aboriginal title at common law:

· Aboriginal title is held communally, and cannot be held by individual Aboriginal persons;26· Aboriginal title is subject to an "inherent limit," in that lands subject to Aboriginal title "cannot be used in a manner that is irreconcilable

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with the nature of the attachment to the land which forms the basis of the group’s claim to Aboriginal title";27· however, subject to this inherent limitation, Aboriginal peoples are free to utilize lands subject to Aboriginal title in any manner of their own choosing and are not restricted to activities they engaged in prior to contact with Europeans;

· the relevant time period for the establishment of Aboriginal title is the time at which the Crown asserts sovereignty over the land subject to title;28· the occupation of land must have been exclusive in order to establish a claim of title; and

· where such exclusive occupation can be established, this is sufficient in itself to demonstrate that title to the land is "of central significance to the culture of the claimants" in accordance with the Van der Peet test.

In contrast to Lamer C.J.’s expansive definition of Aboriginal rights and title, La Forest J.’s concurring reasons in Delgamuukw stressed Dickson J.’s admonition in Guerin that it is unnecessary and potentially misleading to attempt to precisely define the content of Aboriginal rights. La Forest J.’s reiteration of Dickson J.’s caution was particularly

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timely, since (as explained in more detail below), section 35(1) of the Constitution Act, 1982 "recognized and affirmed" existing Aboriginal and treaty rights.29The enactment of a constitutional provision highlights the danger in specific and universal definitions of Aboriginal rights at common law: judge-made rules may be indirectly constitutionalized through the operation of section 35(1), thereby inhibiting the development of Aboriginal rights that will better advance the interests of Aboriginal Canadians.30The attempt to precisely describe the characteristics of Aboriginal rights or Aboriginal title in the absence of a concrete factual dispute before the courts31may frustrate the natural and incremental evolution of the law pertaining to Aboriginal peoples.32

2) Treaty Rights

Aboriginal rights and the treaty rights of Aboriginal peoples differ in both origins and structure. Whereas Aboriginal rights flow...

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