Introduction to Aboriginal and Treaty Rights Naiomi Metallic

1. Introduction to Aboriginal and Treaty RightsNaiomi Metallic CESD 3216 – CESD and the Law January 25-26, 2010 Part 6

2. Warm-up • What do you think are Aboriginal and Treaty rights? List some examples. • What would you like to see Aboriginal and Treaty rights do for First Nations people? • Do you think that most members of your community members have a good understanding of Aboriginal and Treaty rights? • Do you think it is important to know about such rights? • Can the recognition of Aboriginal and Treaty rights lead to economic development?

3. Overview of recognition of Aboriginal rights • Connolly v. Woolrich, (1867) Quebec Superior Court • White Paper 1969 • Calder v. British Columbia, 1973 Supreme Court of Canada • Section 35(1) of Constitution Act, 1982 The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. • Constitution supposed to be amended to spell-out what the rights would be, including self-government, but this never happened, and s. 35 has instead been interpreted by the courts. • We will review major Supreme Court of Canada cases.

4. Simon v. the Queen (1985) - Treaty • Before s. 35, there was s. 88 of the Indian Act • James Matthew Simon, an Indian from Shubbenacadie, was found with a hunting riffle in the trunk of his car, on a road adjacent to the reserve. • He was charged under s.150(1) of Nova Scotia's Lands and Forests Act for possession of a rifle and shotgun cartridges. • He argued that he had the riffle to hunt and he had a right as a Mi’kmaq under the Treaty of 1752.

5. Simon (cont’d) – Treaty of 1752 • “free liberty of Hunting and Fishing as usual” • Truck house with “proper Merchandise lodged therein, to be exchanged for what the Indians shall have to dispose of” • “free liberty to bring for sale to Halifax, or any other Settlement within this Province, Skins, Feathers, Fowl, Fish, or any other thing they shall have to sell, where they shall have liberty to dispose thereof to the best advantage.”

6. Simon (cont’d) • Simon was acquitted based on Treaty right. • Right to hunt includes the right to do all things reasonably incidental to carrying out the right (e.g., carrying a gun in order to exercise the right to hunt). • Not clear how far geographical the right extends – close to reserve? A later case would hold that its traditional territory of First Nation at time of signing treaty.

7. Simon (cont’d) • Court also set out principles to guide treaty interpretation: • The specific words of the treaty cannot be interpreted in a strict or technical sense; rather they should be given a fair, large and liberal interpretation. • The entire historical and cultural context surrounding the negotiations leading to the treaty must be examined. • Courts must assume that the Crown was acting honourably when it made the treaty and had the best interest of the Aboriginal people in mind. • Any ambiguities in the terms of the treaty are resolved in favour of the Aboriginal people.

8. R. v. Sparrow (1990) – Aboriginal right • Mr. Sparrow, a BC First Nation, was charged in 1984 under the Fisheries Act with fishing with a drift net longer than that permitted by the terms of his Band's Indian food fishing licence.  He admitted that the facts alleged constitute the offence, but defended the charge on the basis that he was exercising an existing aboriginal right to fish and that the net length restriction contained in the Band's licence was invalid in that it was inconsistent with s. 35(1) of the Constitution Act, 1982. • He won at the Supreme Court.

9. Sparrow (cont’d) • First time Court had to interpret s. 35: • Section 35 applies to those rights that were existing when the Constitution (1982) was passed and not those rights that were extinguished. • Extinguished law passed by colonial government or Federal government eliminated the right. • Need clear and plain intent to eliminate (e.g., Numbered Treaties were bands gave up Aboriginal title) – not just because laws inconsistent with right were passed (i.e., Fisheries Act or Wildlife Act) • Rights allowed to evolve over time (e.g., hunting with bows and arrows to guns), or else have a “frozen rights”

10. Sparrow (cont’d) • Right to fish here was for food / social / ceremonial purposes (Court doesn’t comment on whether there is a commercial right) • Court finds that, although protected by s. 35, Aboriginal rights can still be regulated by Federal legislation, but now there are limits on that regulation: • Aboriginal people should not be denied preferred means of exercising that their rights without good justification, such as conservation. • Aboriginal food fishery should take priority over non-Aboriginal commercial fishery and sports fishery. • Whether there was consultation or compensation for loss of right are other considerations in justification.

11. R. v. Van der Peet (1996) – Aboriginal right • Van der Peet, part of the Sto:lo First Nation, was charged with selling 10 salmon caught under the authority of an Indian food fish licence, contrary to s.27(5) of the BC Fishery Regulations, which prohibits the sale or barter of fish caught under such a licence. She claimed she was exercising an existing aboriginal right to fish. • She lost. • Court identifies the purpose of s. 35: • the reconciliation of the pre-existence of aboriginal societies and the sovereignty of the Crown (over Canadian territory).

12. Van der Peet (cont’d) • In this case, the Court set out the test for what is an Aboriginal right: • in 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. • First Nation person has the burden of proving this. • Here, Van der Peet failed to prove that the exchange of fish for money was an integral part of her society prior to contact. While it did occur, the Court found it was not an central, defining feature of Sto:lo society.

13. R. v. Gladstone (1996) – Aboriginal right • Accused were charged under s. 61(1) of the Fisheries Act with attempting to sell herring spawn on kelp caught without the proper licence contrary to s.20(3) of the Pacific Herring Fishery Regulations. They tried to sell 4,200 pounds of herring. They claimed an Aboriginal right to sell herring. • Here, accused was able to prove that commercial sale of herring spawn on kelp was a central and significant feature to Heiltsuk society. • But, Court did not decide whether he won or lost, but sent back to trial judge for determination based on new justification test.

14. Gladstone (cont’d) • Court finds that a different justification test applies than in the case of fishing / hunting for food, social ceremonial purposes. • Here it’s commercial: • fishing for commercial sale not internally limited, only constraint on how much fish to catch is supply and demand constraints of the market, so priorities set out in Sparrow don’t apply. • Justification grounds expanded when its commercial: • First priority is still conservation, but then consider • pursuit of regional & economic fairness • historical reliance upon and participation in the fisheries by non-aboriginals

15. R. v. Pamajewon (1996) – Self-government • Band Council running high stakes bingo on the reserve, contrary to Criminal Code. Had passed by-laws having to do with lotteries (not under Indian Act). • Asserted “a broad right to manage the use of their reserve lands” as part of self-government. • Supreme Court of Canada decided against them, without deciding whether section 35 included a right to self-government. • Found that the same test for determining whether hunting and fishing rights existed applied to claims for self-government.

16. Delgamuukw v. BC (1997) - Title • Gitksan or Wet’suwet’en hereditary chiefs, both individually and on behalf of their “Houses”, claimed to have Aboriginal title to separate portions of 58,000 square kilometres in British Columbia. • Not decided whether they had title – sent back to trial • But Court provides some clarification on Aboriginal rights and title • First, Court explained that Aboriginal rights fall along a spectrum.

17. Delgamuukw (cont’d)

18. Delgamuukw (cont’d) • With regard to title, Court explained: • Aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures. • Only limitation: uses must not be irreconcilable with the nature of the group’s attachment to that land.

19. Delgamuukw (cont’d) • Test that the First Nation must prove: • the land must have occupied prior to sovereignty • Physical occupation • But also must account for Aboriginal perspective and Aboriginal laws • there must be a continuity between present and pre-sovereignty occupation • at sovereignty, that occupation must have been exclusive • Crown infringement can be justified (post-Gladstone pretty broad)

20. R. v. Marshall (1999) – Treaty • On August 24, 1993, fisheries officers caught Donald Marshall Jr., his common-law spouse, and another Mi’kmaq, selling 463 pounds of eels to a non-native fish company from NB for $787.10. • Marshall had caught the eels in Pomquet Harbour, Antigonish County, NS. • Both Trial Judge and Court of Appeal held he had no treaty right to sell the eels. • Argued 1760-61 treaty; not 1752 treaty in R. v. Simon, though latter is much clearer about existence of right to trade

21. 1760 / 61 Treaty • “And I do further engage that we will not traffick, barter or Exchange any Commodities in any manner but with such persons or the managers of such Truck houses as shall be appointed or Established by His Majesty’s Governor at Lunenbourg or Elsewhere in Nova Scotia or Accadia.” • Versus 1752: “Indians shall have free liberty to bring for Sale to Halifax, or any other Settlement within this Province, Skins, Feathers, Fowl, Fish, or any other thing they shall have to sell, where they shall have liberty to dispose thereof to the best advantage.” • Why?

22. Marshall (cont’d) • Binnie J.: “In my view, the 1760 treaty does affirm the right of the Mi’kmaq people to continue to provide for their own sustenance by taking the products of their hunting, fishing and other gathering activities and trading for what in 1760 was termed “necessaries”. This right was always subject to regulation.

23. Impact of Marshall • Some immediate fishing: • Mi’kmaq from NS had gone to south coast of Newfoundland to fish snow crab • People from Indian Brook were fishing in Lobster District 34, near Yarmouth, NS • Fishers from Big Cove NB fishing out of a wharf at Burnt Church • “Lobster Wars” - Violence at Burnt Church; wharf blockade in Southwest Nova Scotia

24. The re-hearing motion • Filed on October 18, 1999 by the intervenor, West Nova Fishermen’s Coalition • They wanted Court to address the regulatory authority of the Government of Canada over the east coast fisheries with a new trial to allow the Crown to justify for conservation or other purposes • Written submissions only, focused not on substantive questions posed by fisherman’s coalition, but whether there should be a re-hearing.

25. The re-hearing motion • November 17, 1999, Court dismissed application for re-hearing but delivered 48 paragraphs of “clarification” • “In effect, the Coalition seeks to transform a prosecution on specific facts into a general reference seeking an advisory opinion of the Court on a broad range of regulatory issues related to the east coast fisheries.” • Court did what it said it wouldn’t do; without submission of parties. • Court imposes additional requirements, which, if applied to Donald Marshall Jr., means he would have lost!

26. Marshall Agreements • 32 out of 35 Atlantic FNs signed agreements • DFO only recognized 34 as eligible; Newfoundland Miawpukek FN excluded • 2 abstained – Bear River and Afton • 1999 – FNs held 316 licenses • 2009 – FNs hold 1,238

27. Marshall Agreements • Top five species – Lobster (210), Snow Crab (83), Scallop (58), Bluefin Tuna (38) and Shrimp (24) • Fishing licenses generated an economic return of about $35 million in 2009, compared to just over $4 million in 1999 • First Nations population has improved their employment rate by 5% and reduced unemployment by 7%

28. 10 Year Anniversary Survey • Strong interest by FNs in corporate partnerships to facilitate diversification and expansion in fisheries. • Currently 68% of FNs report that their landings are equal or greater than other fishers, compared to 26% in 2000. • Approximately 75% of FNs report some inactive licenses compared to 81% in 2005

29. 10 Year Anniversary Survey • In 2009, 84% FNs described themselves as involved in local management initiatives compared to 18% in 2000. • However, only allows FN involvement at an advisory level. • 95% of FNs believe that their future role in management must be greatly expanded. • Status quo seen as unacceptable.

30. Remaining issues • Inalienability of licenses (unlike other commercial licenses) – creates difficulties in terms of diversification and using licenses as collateral • FN population growth – 16% in last 10 years – no additional access or additional fishing licenses have been issued to the communities beyond those set out in the interim and long-term Marshall agreements.

31. Remaining issues • Upgrades and repairs to fishing gear and vessels provided under Marshall Agreements needed – Many of the fishing vessels and gear initially provided were used and some in a bad state of repair. • Failure of the Federal Crown to consult and accommodate with Mi’gmaq and Malecite with respect to changes in the commercial fishery

32. Commercial licenses Treaty rights-based fishery Based on statutory privileges (i.e., licenses) issued annually Based on permanent, constitutionally protected treaty rights Based on licenses held by individuals or corporations and subject to ministerial control Is a communal rights subject to Mi’kmaq community control Open-ended and license holders can fish to become wealthy Limited to obtaining a “moderate livelihood” for Mi’kmaq families Subject to all regulations, limitation and restrictions imposed by Canada Only subject to regulation that is justified on conservation or other grounds of public importance Canada maintains First Nations participation in commercial fishery is not rights-based, so no duty to consult Crown subject to duty to consult and accommodate Failure to recognize and implement a Treaty rights-based fishery

33. R. v. Marshall; R. v. Bernard (2005) – Treaty and Title • Two cases involved.  In Marshall, 35 Mi’kmaq Indians were charged with cutting timber on Crown lands in  Nova Scotia without authorization.  In Bernard, a Mi’kmaq Indian was charged with unlawful possession of spruce logs he was hauling from the cutting site to the local saw mill.  The logs had been cut on Crown lands in New Brunswick.  In both cases, the accused argued that as Mi’kmaq Indians, they were not required to obtain provincial authorization to log because they have a right to log on Crown lands for commercial purposes pursuant to treaty or Aboriginal title. • They lost.

34. R. v. Marshall; R. v. Bernard (cont’d) • Aboriginal title – Court modified test to require proof occupation of land consistent with common law standards, which requires extensive degree of occupation (regular occupancy or use of definite tracts) • Not as much recognition to Indigenous laws and Aboriginal perspective. • The Aboriginal activity has to be fit within the common law.

35. R. v. Marshall; R. v. Bernard (cont’d) • Treaty right – • Right to trade for moderate livelihood found in Marshall (1999) includes the right to harvest “traditional products”, such as lumber • However, the modern day trading activity must be a “logical evolution” from the “traditional trading activities” • Commercial logging was not a logical evolution of traditional Mi’kmaq trading activities in 1760-61 • Ancestral trading activities, however, are not frozen in time

36. R. v. Sappier & Polches; R. v. Gray (2006) – Aboriginal right • Sappier and Polchies, who are Maliseet, and Gray, who is Mi’kmaq, were charged under New Brunswick’s Crown Lands and Forests Act with unlawful possession of or cutting of Crown timber from Crown lands.  The logs had been cut or taken from lands traditionally harvested by the respondents’ respective First Nations.  Those taken by S and P were to be used for the construction of P’s house and the residue for community firewood.  Those cut by G were to be used to fashion his furniture.  The respondents had no intention of selling the logs or any product made from them.  Their defence was that they possessed an aboriginal and treaty right to harvest timber for personal use. • They won.

37. R. v. Sappier & Polches; R. v. Gray (cont’d) • Mi’kmaq had site-specific Aboriginal right to harvest wood for domestic uses on Crown lands traditionally used for that purpose • Court found no commercial dimension: harvested wood cannot be sold, traded or bartered to produce assets or raise money, even if the object is to finance the building of a dwelling

38. Summary of law • There can be an Aboriginal right to harvest resources and sell commercially, • There must be evidence to support trade and commerce at time of contact • There is a Mi’kmaq treaty right to trade, and an incidental right to harvest resources: • Must be able to prove that trade in a resource occurred at time treaty was made, or is logical evolution of same • May be limited to “moderate livelihood”

39. Summary of law (cont’d) • Land held under Aboriginal title can be used for variety of uses • Have rights to minerals and can exploit them • But must not be inconsistent with right that gave rise to title • Is inalienable except to Crown

40. Economic opportunities • Exercise rights already recognized by courts, or have government recognize rights that have not been litigated (e.g. the 1752 treaty right to harvest and trade) • Fishery • Forestry: non-commercial? • but right to harvest for personal use may free up resources for other projects • Trade and Commerce: • Treaty or site-specific rights • negotiate with government to get access to sites for Mi’kmaq artisans, businesses, vendors, etc. • Mining, Oil & Gas: aboriginal title does include mineral rights and the ability to exploit them, if not irreconcilable with nature of title • Energy Projects: wind, tidal, solar, etc. • Aquaculture • Self-government • Consultation & Accommodation • Others?

41. End Wela’lioq Naiomi Metallic Burchells LLP 1801 Hollis Street, Suite 1800 Halifax, NS B3J 3N4 t. 902.423.6361 f. 902.420.9326