TGIF, Constitutional style!

Happy Friday everyone,

The last couple of weeks have been very fast-paced, even approaching what things were like during exams! Admittedly, most of it is my fault owing to the fact that I'm really upping my extra-curricular pursuits, ranging from extra volunteering with the Red Cross to support the disaster recovery operations in Haiti, to taking on my first client at the clinic. I'll have more to say about both of these as things progress over the next couple of weeks, but for today's post, I want to return to one of the original themes of this blog, which was to share some of the legal insights I'm learning in my classes, especially those that intersect with major public policy issues. Since mid-December, my constitutional law class has been studying aboriginal law and I finally feel I have enough knowledge to share some of what I've been absorbing with you.

When talking about Aboriginal rights in Canada post 1982, Section 35 of the Charter is the usual starting point. S. 35(1) reads:

"The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed." 


This deceptively simple sentence contains a great deal of legal power, and much ink has been spilled across several important cases about it,  many which have become almost household names in government & policy circles (Sparrow, Van der Peet, Delgamuuk, and Marshall to name a few!) But what does s. 35(1) mean, and why does it matter for aboriginal peoples and all Canadians? Or at an even more basic level, why do aboriginal peoples have rights that other Canadians do not? As policy analysts, I know many of you could immediately list several very good reasons why aboriginals ought to enjoy some distinct rights (e.g., they were here first, to bridge the gaps and persistent inequalities that still exist between aboriginals and other Canadians, etc.)

However, what the courts do in this series of cases is actually set out a somewhat more complex argument. The crux is that despite the historical and political reality that the Crown controls Canada, aboriginal peoples have generally never surrendered their sovereignty over their traditional territories. This is reinforced by the fact that for the most part, in Canada, aboriginal societies were never formally conquered under European colonial law (unlike say, New France). This obviously presents a major judicial problem, because the law only recognizes one entity as the legitimate government of Canada.

Therefore, to the courts, the challenge of aboriginal rights and the Charter is to somehow reconcile, and even legitimize, Crown sovereignty over a territory in which there are still unconquered original inhabitants. The affirmation and recognition of aboriginal rights, elevated to constitutional status and entitled to all the protections that comes with it is our legal solution to this challenge.Of course, this still leaves open the huge question of what these rights are and exactly how the Constitution protects them. It's far too complicated to answer something so vast in a single blog post, but to put it succinctly, it depends on the type of right. For example, the right to engage in traditional activities such as hunting or fishing is generally protected if the aboriginal group can show that they had carried out the practice prior to European contact and the activity was important or significant to the group culturally. For the government to violate these rights, they must now present a very compelling justification (e.g., conservation), and any limitation of an aboriginal right must minimally impair it (e.g., if there is a fishing quota, the aboriginal group with a recognized right is entitled to be given "priority" of some sort to that quota over other users).


Aboriginal rights to their territory have also garnered some protection through 35(1) by constitutionalizing aboriginal title. In some regions (especially BC, where there were almost no treaties that led to aboriginal peoples surrendering their lands to the Crown), if a group can demonstrate that they have title to a parcel of land, the aboriginal group is entitled to use it for a fairly wide array of purposes (though because it is held communally, aboriginal lands generally cannot be sold on the free market). Moreover, as is the case with rights, governments must justify any intervention that effects land protected by aboriginal title, as well as land which may be aboriginal title but hasn't yet gone through the court system to make such a determination, because the "honour of the Crown" demands that it not act pre-emptively and potentially destroy or reduce the value of land that isn't completely theirs (for you regs folks, this is why we now have a duty to consult aboriginal peoples on a whole host of federal initiatives). And due to some constitutional quirks around federalism and the distribution of powers, most provincial and municipal laws (e.g., zoning regulations) have no force or effect on land protected by aboriginal title - which leaves open a vacuum that many aboriginal groups are now claiming they ought to be able to fill through self-governance!

While all of the above sounds very progressive and protective of aboriginal peoples' rights and may help achieve reconciliation between their societies and the rest of Canada, it's always important to remember the drawbacks of legal remedies. Frankly, even with courts being more generous with interpreting evidence to allow oral tradition, etc., aboriginal claims for rights or land are often extremely complex and expensive to litigate, and drag on for years. During this time, much energy and resources of aboriginal communities ends up getting diverted into this very uncertain enterprise instead of being focused on improving the lives of community members through more concrete policies and programs. And as in the case with Marshall in Burnt Church, NB, where a court awarded aboriginal groups a priority right in a commercial fishery, a series of violent clashes subsequently broke out between native and non-native fishers, illustrating that sometimes the adversarial nature of our legal process ends up driving more rifts between communities than bringing about real reconciliation. Notwithstanding these issues, I do think it is fascinating that the courts have taken on a role of at least making a best effort to transform one line in our Constitution into a means of solving a challenge that our legislative and executive branches of government have more often than not shyed away from.

Hope you all enjoyed this little jaunt through the world of s. 35(1) jurisprudence, and I'll be back soon with some updates on my first client and court appearance, which should be happening within the next couple of weeks!