R. v. Marshall, R. v. Bernard: the return of the native.

• Author: Chartrand, Paul L.A.H.
• Position: Canada

"For when you domesticate a member of our own species, you reduce his output, and however little you may give him, a farmyard man finishes by costing more than he brings in. For this reason the settlers are obliged to stop the breaking half-way; the result, neither man nor animal, is the native."

--Jean-Paul Sartre, 1961, Preface to Frantz Fanon's Wretched of the Earth (1)

This brief commentary suggests that the Court has created a new, onerous test for proof of Aboriginal title, and in doing so, has reflected the policy orientation evident in legislation and earlier judicial decisions that seek to minimize conflict with non-Aboriginal economic interests by marginalizing Aboriginal economies. The Court's latest analytical approach also appears to take Canada on a path away from emerging international standards.

1. Judicial Adoption of the Historic Peasant Standard of Aboriginal Policy

   The high standards of proof requiring intensive and regular use of lands will necessarily mean that Aboriginal people will have even greater difficulty in acquiring rights of ownership and control over lands and natural resources. This means less access to wealth producing assets. The reasoning, discussion and conclusions in the majority judgment in Marshall and Bernard reflect the traditional Canadian policy for Aboriginal people: that they should provide a labour force to feed the engines of civilization and economic production. On this traditional view, Aboriginal people occupy a particular economic niche as a pool of labourers in agricultural and other fields, and not as owners of revenue producing assets. This is Sartre's 'farmyard man'. The traditional view of Aboriginal policy, the farmyard man, finds expression in what is here called the 'peasant standard', established first by policy and statute, and subsequently adopted by the Court in recent cases concerning both Aboriginal and statutory rights. A brief overview follows.

   Section 32 of the Indian Act outlaws free trade from Indian reserves on the Prairies and was designed to maintain a peasant agricultural economy that would not be allowed to compete with non-Indians farmers. (2) In Mitchell, the Court had interpreted the taxation provisions of the Indian Act as not intended to provide a commercial advantage to Indian reserve merchants. In the words of La Forest, J.:

   The fact that the modern-day legislation, like its historical counterparts, is so careful to underline that exemptions from taxation and distraint apply only in respect to personal property situated on reserves demonstrates that the purpose of the legislation is not to remedy the economically disadvantaged position of Indians by ensuring that Indians may acquire, hold, and deal with property in the commercial mainstream on different terms than their fellow citizens. (3) The peasant standard was evident in the 'moderate livelihood' test created in the earlier Marshall case, interpreting a treaty right to harvest resources for trade. (4) It has been evident, too, in the judicial 'internal limitations' test developed in other recent cases. (5)

   The adoption of the peasant standard illustrates the limited capacity of the Court to render justice for Aboriginal peoples where claims engage a redistribution of property and access not only to wealth but to political power. Not being in charge of the army or the treasury, the justices have limited capacity to redistribute wealth and access to wealth, and they are aware that if they go too far in recognizing rights that redistribute privileges of access to wealth, they will lose the support of the government and of the public that is most directly affected by the decision. Thus we witnessed the Court's political retreat in issuing its defence of its decision in the course of denying an intervenor's application for a rehearing of the earlier Marshall case. (6)

   The approach of the court is to incubate the development of the 'peasant standard' test within the principle of protection that the Crown owes to Aboriginal peoples in respect to their property interests. The approach limits the sphere of Crown protection to a limited set of interests that minimize conflict with non-Indian interests. In this context, Crown protection means the Crown will undertake to protect Aboriginal peoples' interests to allow them to survive, but not to prosper. (7)

2. Modern Judicial Rejection of the Menagerie Theory of Aboriginal Landholding

   In a classic critique, Felix Cohen described, in terms similar to the farmyard man approach, what he called the 'menagerie theory':

   the theory that Indians are less than human and that their relation to their lands is not the human relation of ownership but rather something similar to the relation that animals bear to the areas in which they may be temporarily confined. The sources of this 'menagerie' theory are many and varied and sometimes elegantly pedigreed. (8) An 'elegantly pedigreed' expression of the menagerie theory in the early 20th century was that of Lord Sumner in Re Southern Rhodesia:

   The estimation of the rights of aboriginal tribes is always inherently difficult. Some tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society. Such a gulf cannot be bridged. It would be idle to impute to such people some shadow of the rights known to our law and then to transmute it into the substance of transferable rights of property as we know them. (9) Similar ideas were expressed by less-pedigreed judges, too. In R. v Syliboy, a hunting rights case decided in Nova Scotia in 1928, an acting County Court judge rejected the idea that the Mi'kmaq people of Nova Scotia had any property rights. Patterson J. said: "The savages' rights of sovereignty even of ownership were never recognized. Nova Scotia had passed to Great Britain not by gift or purchase from or even by conquest of the Indians but by treaty with France, which had acquired it by priority of discovery and ancient possession; and the Indians passed with it." (10) In 1970, Chief Justice Davey of the British Columbia Court of Appeal, in rejecting the Nisga'a claim to ownership of their traditional lands, described them as being, at the time of settlement, "a very primitive people with few of the institutions of civilized society, and none at all of our notions of private property." (11)

   Since 1973, the 'menagerie theory' or 'title of the native' view has been expressly repudiated in several Court decisions. In Calder, Hall J. repudiated the comments of Chief Justice Davey, quoted above, on the basis that in making those comments, the Chief Justice had ignored current historical knowledge and the evidence at trial, and "was...