TEN THINGS YOU NEED TO KNOW ABOUT ABORIGINAL LAW IN CANADA
1. The “Honour of the Crown” is the fundamental guiding principle of Aboriginal law. The courts will interpret all treaty and non-treaty promises made to Aboriginal peoples and all principles of Aboriginal law in a manner that is consistent with the Honour of the Crown. This means that Aboriginal understandings of words and legal concepts in treaties are to be preferred over more technical constructions. The Honour of the Crown results in the Crown bearing a fiduciary duty towards Aboriginal peoples in many contexts.
2. There are three legal categories under which Aboriginals may assert rights in Canada: as part of an Aboriginal right, as part of an explicit or implied term in a treaty, or as part of Aboriginal title. Different legal tests apply to the establishment of each of these three classes of rights. In assessing whether a prima facie infringement of an Aboriginal right, treaty or title has occurred, one must examine whether any government regulation is an unreasonable limitation on the exercise of the right, whether the regulation imposes undue hardship, or whether it denies the rightholders their preferred means of exercising their rights.
3. Aboriginal title has been a particularly elusive concept is Canada, said by the courts to exist, but never found by an appellate court to have been established. Concepts of co-existing dual title are gaining acceptance, such as expressed in the Gwaii Haanas Agreement of 1993 which recognized both the Council of the Haida Nation’s and the Government of Canada’s diverging views on “sovereignty, title or ownership.”
4. Aboriginal rights, treaties and title are all rights of a collective nature exercisable by individuals. This means that individuals must establish a tie to the collectivity, and at least tacit approval of the collectivity, in order to exercise a right such as the right to fish held by the collective. Aboriginal rights are therefore different from many other forms of human rights held solely by individuals.
5. The Crown may justify an infringement of Aboriginal rights, treaties or title if it can show that there is a valid, compelling and substantial legislative objective, such as conservation, and that the Honour of the Crown has been satisfied through means like prior consultation with the affected group, minimal impairment of the right, and compensation. Prior meaningful consultation with affected Aboriginal groups has become a very important factor for the courts in considering whether the infringement of a right has been justified by the Crown.
6. The duty to consult and if necessary accommodate remains an ill-defined Aboriginal right as it is difficult to know who should be consulted and for which issues. And it is also difficult to know if the results of consultation should lead to any modification of action. Because of its ability through injunctive relief for its breach to bring resource development to a swift if temporary halt, the implications of this duty need to be a prime consideration for anyone seeking to develop lands or resources, benefit from or influence the course of development, or stop development.
7. The Indian Act is a normal statute of the Parliament of Canada, and unconnected to Aboriginal rights which are guaranteed by s. 35 of the Constitution Act, 1982. The Indian Act especiallygoverns the establishment and administration of reserves, and who can hold Indian “status” under the Act, which is not the same as holding Aboriginal rights.
8. Several formal negotiations processes are available to resolve Aboriginal claims. A claim could be accepted for negotiation under the Government of Canada’s Comprehensive Claim Policy (generally involving claims to Aboriginal title), Specific Claims Policy (including damages for beaches of historic outstanding lawful obligations concerning Indian lands or administration of assets) or be treated as a Special Claim which does not qualify as either a Comprehensive or Specific Claim but is still accepted for negotiation. Alternatively, a claim could go to court in either a province’s superior court or in the Federal Court.
9. Aboriginal rights may be proven through either the civil or criminal courts. Through civil courts, an Aboriginal individual or group will be the plaintiff, and the scope of proceedings will be defined by the pleadings of the parties filed with the court.
In the criminal courts, the proceedings will be defined by the charges laid by the Crown, and the defences raised by the accused.
10. The United Nations General Assembly has now adopted the Declaration on the Rights of Indigenous Peoples. Article 3 of the Declaration has attracted the most attention: “Indigenous people have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”
© 2012 Gordon Scott Campbell, Barrister & Solicitor
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