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ENVIRONMENTAL AND NATURAL RESOURCES MANAGEMENT BY INDIGENOUS PEOPLES IN
NORTH AMERICA: INHERENT RIGHTS OF
SELF GOVERNMENT
AGPS |
Australian Government Publishing Service |
AIATSIS |
Australian Institute of Aboriginal and Torres Strait Islander Studies |
AILR |
Australian Indigenous Law Reporter |
Delgamuukw |
Delgamuukw v British Columbia [1998] 1 CNLR 1 |
Mabo |
Mabo v Queensland (No 2) (1992) 175 CLR 1 |
Royal Commission |
Royal Commission on Aboriginal Peoples |
Sparrow |
Sparrow v The Queen (1990) DLR (4th) 385 |
In 1997 the Australian Research Council awarded a Collaborative Research Grant to support this Project to develop recommendations for more effective interaction between Indigenous and non-Indigenous governance structures. The central problem that the Project seeks to address is the question of `fit' between traditional forms of Indigenous land `ownership' and control, and the non-Indigenous legal system. The focus is on management of land subject to native title. However, the Project extends to a consideration of Indigenous structures for asserting and protecting interests on land and waters that are not subject to native title. Discussion Paper 1 gives a more detailed overview of the Project.[2]
Other Discussion Papers will cover material on Indigenous land holding structures in overseas jurisdictions, Indigenous associations and other governance bodies not administering land, and governance structures off Indigenous lands and waters.
All members of the Project Team are non-Indigenous. We make no claim to speak for any Indigenous community but hope that the recommendations we develop will provide ways of improving the relationship between Indigenous and non-Indigenous governing bodies when administering native title. The Project's goal is to help to identify avenues and strategies for effective self-government by Indigenous peoples.
This Discussion Paper, the fifth published by the Project, is the second of four proposed papers reviewing Indigenous land rights jurisprudence in other common law countries. The first discussion paper reviewed the powers of Indian Tribes in the United States (outside Alaska)[3]
to manage the environment of their reservations and control access to, protect and manage natural resources on and off those reservations. These powers generally arise from judicial acknowledgment of the historical recognition of the Indians' occupation of their lands as organised Tribes prior to white settlement.[4]
Discussion Paper 5 continues the discussion of the North American experience by examining the development and treatment by the Canadian government and courts of Indigenous land and resources rights in Canada.
The third paper in this sub-series will provide an overview of Indigenous governance structures in New Zealand. The fourth paper will address the applicability of jurisprudence and governance structures in the United States, Canada and New Zealand to the development of Indigenous land law in Australia.[5]
The British Crown acknowledged the rights of the Indigenous Peoples of Canada to occupy and use their traditional lands in the Royal Proclamation of 1763. The Canadian Supreme Court, backed by the Privy Council, recognised the common law right of `native title' to those lands in 1867. However, those same rights in lands, waters, and resources were largely marginalised in importance until the last quarter of the twentieth century. Beginning in the 1970s, decisions by the Canadian Supreme Court and other Canadian courts, along with political advances, have established a new agenda for Indigenous Peoples and Aboriginal rights in Canada. While the courts have often been relatively receptive to the pleas of Canadian First Nations, governmental policies did not turn favourably toward First Nations until those courts began to recognise and articulate the basis for Aboriginal rights.
This Paper considers the ways in which Canada has approached the task of defining `Aboriginal title' and allocating the rights associated with that title. Following a brief historical overview of Canadian legal developments in Chapter 2, Chapter 3 of the Paper analyses the theoretical approach utilised by and the decisions of the Canadian courts when faced with Aboriginal title claims, including claims for specific Aboriginal rights of access to, and management of, natural resources. Chapter 4 addresses what is occurring politically between First Nations and Canadian governments in an effort to resolve Aboriginal land claims. The Paper concludes by briefly considering the potential applicability of Canadian experience and jurisprudence to the resolution of Indigenous Australian land rights claims.
As in the United States,[6] the relationship between the colonisers of Canada and its Indigenous peoples has moved in stages from rough equality, negotiation, and coexistence, to government efforts to disperse and assimilate Indigenous Canadians, and, finally, to a recognition of their rights to limited self-determination within a federal state. The 1996 Royal Commission on Aboriginal Peoples (the Royal Commission) characterised the three stages of development in Canada as `Contact and Cooperation', `Displacement and Assimilation' and `Negotiation and Renewal.'[7]
In the United States treaties were confined to the earliest stages of relations between the federal government and the Tribes.[8]
By contrast, treaty making has played a major role throughout the development of Canadian Aboriginal policy. Negotiated land claims settlements, which are effectively `modern treaties', are currently the main mechanism for settling Indigenous land claims. This land claim settlement process takes on added significance given that when the official treaty process concluded in 1921, no agreements had been made in relation to tribal lands in Quebec, the Maritime Provinces, Newfoundland, the Yukon or in most of the Northwest Territories or British Columbia. As Professor Foster of the University of Victoria observes, this means that `...unlike the situation in the United States, vast tracts of land in Canada may still be subject to unextinguished aboriginal title.'[9]
First contact between Europeans and Indigenous North Americans occurred approximately 1000 years ago when Norse sailors ventured from Iceland to the northeastern coast of North America.[10] These early contacts were largely `commercial' involving trade between explorers and Aboriginal people.[11] Beginning in the early seventeenth century, the French and British established settlements in what would become Canada. As the Europeans contested for control of North America, early commercial relations took on a new dimension in the form of military alliances between the Tribes and the British and French.[12]
The earliest treaties in Canada, sometimes called the `peace and friendship' treaties, were `undertaken in the context of small groups of settlers living on a small portion of the land mass of the continent and involved such matters as trade and commerce, law, peace, alliances and friendship, and the extradition and exchange of prisoners.'[13] As noted, the treaties rapidly took on a military dimension as the French and British vied for control of North America (the earliest military alliance was that between the French and the Innu, Algonquin, and Huron against their enemies, the Haudenosaunee).[14] Military cooperation treaties were also entered into by the British and various Tribes, though with an important difference that the Royal Commission notes had a profound impact on the long term relationship between Aboriginal and non-Aboriginal Canadians. French populations were small with little need to obtain land from the Tribes, while `[b]y contrast, from an early period the British colonists found their Aboriginal neighbours in possession of lands they wanted for expanding their settlements and economic activities.'[15]
Despite tension and diverse understandings of the meaning of the early treaties between the British and the Tribes, by the time of the cession of New France to Britain in 1763 following the Treaty of Paris, Aboriginal/English relations `had stabilised to the point where they could be seen to be grounded in two fundamental principles.'[16]First, Aboriginal societies were generally recognised as autonomous `sovereigns' capable of making treaties. Second, these Aboriginal nations were entitled to their territories, unless and until they were voluntarily surrendered to the Crown.[17] That understanding set the stage for the most important political document of Aboriginal/non-Aboriginal relations in Canada up to the time of Constitutional amendments in 1982.
The Royal Proclamation of 1763 was the British response to its acquisition of Quebec from the French following the Seven Years War,[18] and is considered a defining document in the relationship between Aboriginal and non-Aboriginal people in North America.[19] The Proclamation issued by King George III provided that:
...whereas it is just and reasonable, and essential to our interests, and the security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of 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. We do therefore, with the Advice of our Privy Council, declare it to be our Royal Will and Pleasure, that no Government or Commander in Chief in any of our colonies...do presume, on any Pretence whatever, to grant Warrants of Survey, or pass any Patents for Lands beyond the Bounds of their respective Governments, as described in their commissions...or on any Lands whatever, which not having been ceded to or purchased by Us as aforesaid, are reserved to said Indians... And We do further declare it to be Our Royal Will and Pleasure...to reserve under our Sovereignty, Protection and Dominion, for the use of the said Indians, all the Lands and Territories not included within the Limits of Our said Three new governments or within the Limits of the Territory granted to the Hudson Bay Company, as also the Lands and Territories to the Westward of the Sources of the Rivers which fall into the Sea from the West and North West... And whereas great Frauds and Abuses have been committed in purchasing Lands of the Indians to the great Prejudice of our interests and to the great Dissatisfaction of the said Indians...[w]e do...strictly enjoin and require, that no Person do presume to make any Purchase from the said Indians of any lands reserved to the said Indians...but that if at any Time any of the said Indians should be inclined to dispose of the said Lands, the same shall be purchased only for Us in Our Name...[20]
The Proclamation was a restatement of the policies and practices followed by the English in their early colonisation of North America.[21] At this time the Indians were far superior in numbers and both the British and French treated them on a basis of rough equality and negotiated for land.[22] Thus, the Proclamation was not a grant of native title but a reaffirmation of the doctrine of Aboriginal title. Its recital of the Crown's obligation to protect the Indians' rights to their traditional lands and declaration of inalienability of land except to the Crown also established the legal foundation for the Crown's fiduciary duty to the Tribes.[23] The Royal Proclamation was effectively a summary of the rules governing English dealings with Aboriginal people.[24] Though no longer viewed as the source of Aboriginal title, the Proclamation retains its importance in Canadian jurisprudence, with the Supreme Court characterising it as `analogous to the status of the Magna Carta' in delineating the rights of Aboriginal peoples in Canada.[25]
Arguably, the Royal Proclamation represents the highwater mark in acknowledging Aboriginal rights in the first phase of the relationship between the British and Canada's Indigenous peoples. However, it can also be viewed as signalling the end of this stage of that relationship and as the launchpad for a new relationship less favourable to Aboriginal peoples.
Over the 50 years from the date of the Royal Proclamation to the end of the War of 1812 between Britain and its former colonies, the United States, three fundamental changes foreshadowed an altered relationship between Canada and its Aboriginal peoples. First, there was a dramatic increase in the non-Aboriginal population, particularly following loyalist immigration from the United States to Canada after the War Independence with Britain, which sharply increased the demand for the lands of Aboriginal peoples in Canada. Second, there was a shift in economic activity from fur trading which was compatible with Aboriginal lifestyles to a more intensive use of the land for farming, timber harvesting, fishing and, above all, permanent settlements. These new uses were incompatible with traditional Aboriginal land holding and use patterns. Finally, the conclusion of the War of 1812 ended the need for English military alliances with the Tribes and presaged a transfer of responsibility for Aboriginal affairs to civilian authorities more responsive to the settlers' demands for land.[26]
Treaties were the major tool used by European settlers both prior to and after Canadian confederation to establish a new relationship with Aboriginal peoples. Although treaty making was not a new phenomenon, from the early 1800s it assumed far greater importance. Prior to confederation, a number of treaties were negotiated in the Atlantic Provinces and other parts of Eastern Canada.[27] Following confederation in 1867, the new Dominion of Canada embraced a process of treaty making (the `numbered treaties': 1-11) that lasted until the 1920s.[28]
The major feature of the treaty process was the cession of large tracts of Aboriginal territory, in return for retention of small reserves of land, `ownership' of their resources, preservation of traditional hunting/fishing/gathering rights and promises of non-interference in the governance of tribal affairs.[29] The other signal feature of the treaty process was, as was the case in the United States, the failure of governments to implement or otherwise fulfil promises made in the treaties.[30] While the treaty process was an expeditious means for `negotiating co-existence,' the most critical tools used to displace Aboriginal Canadians from their lands and cultures were the various Indian Acts enacted after confederation.
In 1867, the English Parliament enacted the British North America Act (also known as the Constitution Act, 1867)[31] which combined the Eastern Provinces into the Dominion of Canada with its own constitution and parliament. Under the Constitution Act, 1867 executive government was vested in the British Crown. As in the United States,[32] the Constitution Act, 1867 vests exclusive authority in the Federal Parliament to legislate for Indians and lands reserved for Indians.[33] However, under section 88 of the Indian Act (first enacted in 1876 and periodically amended thereafter), the provinces retained the power to enact laws of general application which did not conflict with federal laws or treaties which were applicable to all, including Indians.[34] The extent to which these provincial laws impinged on Aboriginal rights is discussed later in this Paper.
The Royal Commission characterises the Indian Act (and associated legislation) as `the repository of the struggle between Indian peoples and colonial and later Canadian policy makers for control of Indian peoples' destiny in Canada.'[35] It was the single most important device used by Canadian governments in their efforts to dominate, isolate, and assimilate Aboriginal peoples and eliminate their cultures in Canada: `Indian people chafed within the confines of this legislative straitjacket. It regulated almost every important aspect of their lives...'[36]
Though reserves were not unknown in early colonial times,[37] the Indian Act significantly expanded the reserve system, narrowing the Aboriginal land base and, in some cases, isolating Tribes far from their traditional homelands. The Indian Act also provided for Indian Band governance on those reserves, determined who was and was not an `Indian,' determined the status of Band members, disenfranchised Indian women who married outside the Tribe, limited voting rights in Band matters to men, enabled the removal of Indian children to non-reserve boarding schools, enabled the regulation of traditional cultures by banning certain ceremonies, restricted Indian legal claims, instituted a pass system for travel off reserves, and empowered the dislocation of many Tribes from their homelands to secure lands and resource access for non-Aboriginal settlers and interests.[38] In summary, the Indian Acts enabled Canadian governments to ignore both the promise of measured separatism/diminished sovereignty made to the Tribes and the promise to protect their interests and cultures contained in the Royal Proclamation of 1763.
The recognition of Aboriginal rights in Canada is largely a post World War Two development.[39] In particular, the modern Aboriginal rights movement owes its impetus to Supreme Court decisions in the 1970s which sparked government action on a much wider front.
Subsequent to the [1889] St Catherine Milling decision, in the wake of government policy designed to assimilate Indians, the Canadian law of native rights went into almost total eclipse...[F]rom the 1920s [when the last of the numbered treaties was negotiated] until the early 1970s the issue of native rights ceased to be a major concern of Canadian politicians and ceased to exist in the minds of the legal profession.'[40]
After the Proclamation of 1763, the first indication by the Canadian Government that it was willing to negotiate land claims was a `Statement of Policy' on 8 August 1973. As noted in Sparrow v The Queen (Sparrow), this policy statement articulates the position that, `[t]he government is now ready to negotiate with authorised representatives of these Aboriginal peoples on the basis that where their traditional interest in the lands concerned can be established, an agreed form of compensation or benefit will be provided to Aboriginal peoples in return for their interest.'[41] The 1973 Policy Statement contrasts with a draft White Paper issued four years earlier which adopted the position that, `aboriginal claims to land...are so general and undefined that it is not realistic to think of them as specific claims capable of remedy except through a policy and program that will end injustice to the Indians as members of the Canadian community.'[42] The draft 1969 White Paper had proposed dismantling the Indian Affairs Branch within five years, the repeal of the Indian Act, rejected land claims and treaties as regressive, and argued for the provision of services to Indians through regular provincial agencies rather than specifically Indian bodies.[43]
The categorical denial in 1969 by the then Prime Minister of the legal viability of Aboriginal rights ushered in the modern era of Aboriginal rights in Canada[44] when, partly in response to the government's unwillingness to acknowledge Aboriginal land rights, the Nishga Nation of British Columbia sought a legal declaration of their Aboriginal title to their traditional lands.[45] That case, along with others in the 1970s (as well as increased political action on the part of First Nations)[46] forced the government to acknowledge the continuing vitality of native title and other Aboriginal rights in Canada, as well as the government's fiduciary responsibility to protect those rights. The resulting negotiated land claims settlement process initiated in the 1970s, partly in response to court decisions and partly due to frontier resource disputes,[47] and a constitutional amendment preserving existing Aboriginal and treaty rights in 1982,[48] as well as subsequent decisions of the Canadian Supreme Court and other courts which elaborate on the content of Aboriginal rights, are the subject of the remainder of this Paper.
Before moving to that discussion, it is important to acknowledge the potential impact of the Royal Commission on the future development of the Aboriginal/non-Aboriginal relationship in Canada. Involving five years of work, extensive research, testimony, and submissions, the five volume Report covers all aspects of Aboriginal/non-Aboriginal relations and though an in-depth review of the Commission's work is outside the scope of this Paper, it is safe to say that its recommendations (discussed briefly in Chapter 4) could well shape the future of relations between non-Aboriginal Canadians and Aboriginal peoples and nations in Canada.
Beginning in the 1970s, decisions by the Canadian Supreme Court and other Canadian courts, along with political advances, have established a wide circle of rights for Aboriginal peoples in Canada. This circle of rights potentially includes land claims, hunting and fishing rights, water rights, and many other uses of the land and its resources, as well as claims to some form of self-government.
Prior to discussing legal developments in Canada, a note on terminology is necessary. The Constitution Act, 1867 refers to `Indians', while the Constitution Act, 1982 refers to `the Aboriginal peoples of Canada' defined as including the `Indian, Inuit and Metis Peoples of Canada.' The Metis are a mixed blood population typically originating from unions between French fur traders and Cree women. The Inuit are the Indigenous peoples of northern Canada, Greenland, Alaska and Russia formerly called `Eskimo.' Of the three sub-categories of Aboriginal people, it was the Metis and Inuit, who received no special recognition or treatment under the original Indian Acts.
Additionally, the `Indian' (First Nation) community was defined as status or non-status. Indians gained or lost status by inter-marriage so that an Indian woman who married a non-Indian lost status. Similarly, a non-Indian woman gained status by marrying an Indian man. The implication of this was that Indian women and children lost the right to participate fully in local Reserve Indian affairs. Further, they were not covered by federal government responsibility otherwise found under section 91(24) of the Constitution Act, 1867 which is entitled `Indians and Lands Reserved for the Indians.'[49] Throughout this Paper, the terms Aboriginal or Indigenous should be taken to encompass all three groups of Canadian Indigenous Peoples.
The first legal decision to significantly affect Aboriginal rights in Canada was St Catherine's Milling and Lumber Co v The Queen, in which the Supreme Court and Privy Council held that Aboriginal title is a `personal and usufructuary right, dependent on the good will of the sovereign'[50] arising from the Royal Proclamation of 1763. As noted earlier, in essence, the Royal Proclamation reserved to the `Indians' of the British colonies in North America all lands in their possession not ceded to or purchased by the Crown. However, the St Catherine's Milling decision was by no means a complete victory for Aboriginal Canadian peoples. What remained unclear after the case was whether Aboriginal title and other rights might arise from a source other than the Royal Proclamation of 1763.[51] This ambiguity remained for just over one hundred years.
In the progression of cases since St Catherine's Milling, the Canadian Supreme Court has gradually developed the source of Aboriginal rights and articulated principles to determine if the rights still exist. It is interesting to note, however, that even if a court determines that certain rights exist, despite the clear language of the 1982 constitutional amendment preserving those rights, a court has never found these rights absolutely immune from government regulation. As in the United States, the government may extinguish or impair those rights under appropriate circumstances (including provision of compensation).[52] Unlike the United States where no protection is afforded non-treaty rights, the preservation of existing Aboriginal and treaty rights by the 1982 constitutional amendment,[53] while arguably allowing rights to be impaired, constrains the wholesale extinguishment of both Aboriginal and treaty rights.[54]
In the landmark 1973 decision of Calder v Attorney-General of British Columbia,[55] the Canadian Supreme Court recognised that the source of Aboriginal title is not the Royal Proclamation of 1763. The Calder case arose after a long period of neglect of Aboriginal rights by the legal profession, the courts, and the government, a period when any possible existing Aboriginal title to non-treaty lands was assumed to be superseded by law or extinguished by implication.[56] As in Australia, where the High Court in Mabo v Queensland (Mabo) rejected the view that the continuation of Indigenous rights after the acquisition of territory by a new sovereign requires affirmative action by the executive or legislature,[57] the Canadian Court confirmed that Aboriginal (native) title in Canada is not a collection of rights given to Aboriginal peoples by the new sovereign, parliamentary action, any other affirmative act, or the common law. As the Court held in Calder, where it was forced to find an alternate source of native title, since the plaintiff Tribe was not on lands protected by the Proclamation of 1763, the simple fact of Indian occupancy before the settlers' arrival provided the source of Indian title.[58] While the Court recognised that Aboriginal peoples have inherent title to the land because `they were here first,' it also recognised the `conquering' nation's right to extinguish that title.[59]
Although the Supreme Court split evenly on the question of whether the Nishga (one of the non-treaty Tribes in British Columbia) retained ownership of their traditional territories, the decision is extremely significant because it established what is generally accepted today as the source of native title, prior occupancy, which will inevitably carries specific rights with it. In support for a legal basis upholding Aboriginal title to land, the most quoted passage in the judgements linked native title/land rights to the existence of established sovereign societies in North America prior to European settlement: `...when the settlers came, the Indians were there, organised in societies and occupying the land as their forefathers had done for centuries. That is what Indian title means...'[60] More recently, in Delgamuukw v British Columbia (Delgamuukw), the Court confirmed that the source of Aboriginal title arises from the prior occupation of Canada and the relationship between the common law and pre-existing systems of Aboriginal law.[61]
Calder was followed a decade later by Guerin v The Queen, which established that the government owes a fiduciary obligation to Aboriginal peoples to protect their native title rights and interests in land and other Aboriginal rights.[62] In Guerin, the courts considered whether a private lease of tribal lands negotiated by the government under much less favourable terms than those approved by the Tribe entitled the Tribe to compensation for the difference. The trial court found that the government had breached the Indians' trust and awarded the plaintiffs $10 million in damages. This decision was reversed on the initial appeal but the Supreme Court reinstated the trial court's decision. Seven of the eight members of the Court agreed that the duty of the government arising out of its supervision of Indian lands and the ability to accept the surrender of those lands created a trust or trust-like relationship. The eighth member of the Court couched his concurrence in terms of the laws of agency.[63] Finally, Guerin put to rest any ambiguity regarding the existence of native title in Canada created by the split decision in Calder and firmly established the principle that Aboriginal rights can only be extinguished by voluntary surrender or appropriate legislation which includes provision for compensation for that extinguishment.[64]
Until the December 1997 decision of the Canadian Supreme Court in Delgamuukw, the most significant modern case to elaborate on the theory of Aboriginal title was the 1990 decision of Sparrow v The Queen.[65] The Sparrow case provides the contemporary starting point for the analysis of Aboriginal rights undertaken by the Court in a series of cases in 1996 and 1997. Sparrow was the first of many cases to set forth the principles necessary to identify Aboriginal rights under section 35(1) of the Constitution Act, 1982.
One of the most recent political statements addressing Aboriginal rights, and ultimately a political victory for the Canadian First Nations, is the Constitution Act, 1982.[66] As the Sparrow Court notes, `[s]ection 35(1), at the least, provides a solid constitutional base on which subsequent ... [negotiation between First nations and Canadian governments] can take place. It also gives Aboriginal peoples constitutional protection against provincial legislative power.'[67] Ultimately, section 35(1) of the Act represents `the culmination of a long and difficult struggle in both the political forum and the courts for the constitutional recognition of aboriginal rights.'[68] The practical effect of the Constitution Act, 1982 is to affirm existing Aboriginal and treaty guaranteed rights. It does not, however, extend those rights beyond what was already in existence.[69]
In reaching its decision regarding the legality of a government attempt to regulate Indian fishing rights, the Court found that section 35(1), as with treaties, should be read broadly and in favour of Aboriginal peoples.[70] This `purposive approach' to constitutional interpretation arises from the Court's view that the import of section 35 extends beyond the constitutional protection of Aboriginal and treaty rights to include interpretive principles reflecting the overall purpose of the Constitutional amendment: `[w]hen the purposes of the affirmation of aboriginal rights are considered, it is clear that a generous liberal interpretation of the words in the constitutional provision is demanded.'[71]
As noted, the government's fiduciary duty to Aboriginal peoples arises as a result of the special relationship between the Crown and Aboriginal peoples. This is an important premise: because of the inequality of bargaining power between the Crown and the natives, statutes, treaties, and now constitutional amendments, must be read broadly in light of the fiduciary relationship.[72]
In Sparrow, the Supreme Court of Canada applied this concept to instances of extinguishment and impairment of Aboriginal rights. The Court holds that, `[t]he test of extinguishment to be adopted, in our opinion, is that the sovereign's intention must be clear and plain if it is to extinguish an aboriginal right.'[73] It is this fiduciary obligation that also imposes a limit on the Crown's ability to regulate the activities of Aboriginal peoples. For example, a claim of a violation of fiduciary duty against the Crown, although it does not arise from a true trust, is a legally enforceable duty emerging from the concept of Aboriginal title.[74]
As previously observed, the consequence of this fiduciary duty is that statutes, treaties, and regulations need to be interpreted broadly and liberally and ambiguities in them must be resolved in favour of Aboriginal peoples.[75] It also means that to extinguish Aboriginal title or Aboriginal rights, there needs to be a clear, plain statement to that effect.[76] Pro-actively, the fiduciary duty obligates the government to protect the rights of Aboriginal peoples from arbitrary decision-making or actions by its departments and ministries. In Blueberry River Indian Band v Canada,[77] Halfway River First Nation v British Columbia (Ministry of Forests),[78] Semiahmoo Indian Band v Canada,[79] and Union of Nova Scotia Indians v Canada[80] the courts found a recognised fiduciary duty which the Crown had breached.
While Calder recognised the source of Aboriginal title, Sparrow articulated the steps for determining if government interference with an existing Aboriginal right is justified. In Sparrow, the appellant was convicted of violating a section of the Fisheries Act for fishing with a length of net longer than that allowed by his Indian food fishing licence.[81] On appeal, he argued that the restriction violated his Aboriginal right to fish for food.[82] The Supreme Court of Canada first recognised that the Crown, because of its special relationship with Aboriginal peoples, must make a clear statement of its intent to extinguish an Aboriginal right.[83] Inherent in this power is the government's (unquestioned ?) ability to limit or impair native title at any time, as long as it does so clearly.[84] The Court found that there was clear intent to extinguish Aboriginal fishing rights in this area.[85] Next, the Court turned to whether, in light of existing Aboriginal rights to fish for food, the regulation was valid.
Essentially, the Court articulated a four-part test to determine if a law or regulation validly interferes with an Aboriginal right. The first question is whether the legislation or regulation prima facie `interferes with an existing aboriginal right.'[86] Factors that may indicate interference include the unreasonableness of the limitation, whether it causes undue hardship for Aboriginal peoples, or whether it denies to the `holders of the right their preferred means of exercising that right.'[87]
Second, if a court determines that there is prima facie interference with an Aboriginal right, it must then look to whether there is any compelling justification for the infringement.[88] Valid legislative purposes may include resource management regimes to preserve Aboriginal constitutional rights, resource management or conservation regimes to limit the exercise of Aboriginal constitutional rights that would harm the general public (such as protecting endangered species) or other `compelling and substantial' objectives.[89] In all instances the legislation or regulation must be applied non-discriminatorily to Aboriginal and non-Aboriginal peoples.[90]
The third relevant factor is whether the law or regulation was enacted without regard to the trust relationship.[91] In the recent decisions of Nunavut,[92] Halfway River,[93] and Delgamuukw,[94] the courts have interpreted this as an obligation to consult the affected peoples. Finally, the government needs to demonstrate that it has addressed other factors such as minimising interference, fair compensation and consulting with the Aboriginal people.[95] If this test is met, the government legislation or regulation is valid.
In summary, the Sparrow Court establishes a purposive approach to the resolution of conflicts over Aboriginal rights protected by section 35 of the Canadian Constitution. Given the remedial nature of the 1982 amendment and the command of the Court that the amendment is to be read broadly and liberally in favour of Aboriginal peoples, that purpose can be read as threefold: first, to preserve existing Aboriginal and treaty rights; second, to comply with the fiduciary obligation owed by government to Aboriginal peoples; and, third, to reconcile Aboriginal rights with those held by the larger society. The effect is that the government can, non-discriminatorily, regulate Aboriginal land and resource use rights but must take into account the appropriateness of regulation giving full consideration to the historical and cultural patterns of the exercise of Aboriginal rights.[96]
In 1996, the Supreme Court of Canada elaborated on the Sparrow test in a trilogy of cases determining whether native title rights in resources can encompass rights to exploit the resource commercially. The principal case in the trilogy, R v Van der Peet,[97] answered the question of how Aboriginal rights should be defined in light of section 35(1) of the Constitution Act, 1982. Specifically, 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.'[98] This test is derived from the concept that Aboriginal peoples are distinguishable from other minorities on the basis that the Aboriginal peoples were the first inhabitants of Canada. This status `mandates their special legal, and now constitutional status. . . . [T]heir own practices, traditions and cultures are acknowledged and reconciled with the sovereignty of the Crown.'[99]
Chief Justice Lamer, writing for the majority, articulates a number of considerations relevant to determining if a particular activity is an Aboriginal right:
Justices McLachlin and L'Heureux-Dube dissented in Van der Peet, raising concerns about the test for commercial rights articulated by the majority. The dissent by Justice L'Heureux-Dube differs from the majority's opinion on two main points. First, she places greater emphasis on the perspective of the Aboriginal peoples and less on the common law, rather than giving equal weight to both.[104] Second, Justice L'Heureux-Dube focused on the broad notion of Aboriginal rights rather than a specific practice.[105] She argued that the liberal canons of construction applied in Aboriginal rights cases requires a broad approach.[106] Under such a flexible approach, Aboriginal rights would be recognised that `are sufficiently significant and fundamental to the culture and social organisation of a particular group of aboriginal people.'[107] Her approach would also recognise the potential evolution of Aboriginal practices. Ultimately, Justice L'Heureux-Dube recognised that the appellant was not trying to make a profit in selling the fish, but was simply attempting to provide for her family, and that providing for one's family is certainly an Aboriginal right.
Justice McLachlin observed that `... the critical question is not whether the sale of fish is commerce or non-commerce, but whether the sale can be defended as an exercise of a more basic right to continue the Aboriginal people's historic use of the resource.'[108] He noted that one potential outcome of requiring any sale, exploitation or trade to be based on historic practices may be to eliminate virtually any Aboriginal claim to commercial rights in resources.[109]
The next case in the trilogy also elaborates on the first step of the Sparrow test. In NTC Smokehouse, the Court found that the Aboriginal defendants had sold enough fish for the transaction to be classified as a commercial exchange. Therefore the Tribe needed to show that prior to contact, it engaged in a commercial exchange of fish. In Van der Peet, for example, the nature of the claim was the right to exchange fish for food or money: ten salmon were sold for fifty dollars. In NTC Smokehouse, over 119,000 pounds of salmon were sold by 80 people. The Court found that this amount constituted a commercial sale.[110] The Court then found that the Tribe had not, prior to contact, sold salmon commercially.[111] To demonstrate the ultimate importance of defining the claim, the dissent by Justice L'Heureux-Dube in Van der Peet would have defined the activity as the `right to sell, trade and barter fish for livelihood, support and sustenance purposes.'[112] The dissent opined that the evidence demonstrated that the sale was not for economic gain, but basic survival needs, and questioned whether the majority had put the canons of Indian construction[113] to full use.[114]
In the last case in the trilogy, Gladstone, the Tribe attempted, contrary to provincial regulations, to sell herring spawn. The Court found that it did not matter whether this was trading fish for food or for commercial gain because there was ample evidence that the Tribe traditionally engaged in both activities.[115] This case also elaborated on whether native title had been extinguished. The Court observed that Sparrow requires that the sovereign's intent to extinguish native title be clear and plain.[116] Furthermore, past regulation of a right does not equal (or constitute evidence of) extinguishment.[117] In this case, the Court did not find plain and clear intent, only a `widely varying regulatory scheme.'[118]
Finally, the Court examined whether the regulation is justified. It reiterated two principles set forth in Sparrow: first, the government must have been acting pursuant to a valid legislative objective; and second, the actions must be consistent with its fiduciary duty.[119] In summary, the Court held that the impugned regulation is a prima facie infringement of the Aboriginal right, because it directly conflicts with the sale of fish which was a traditional practice. Although the regulations were enacted for conservation reasons, there was insufficient evidence at trial to establish whether the infringement was justified.[120]
Ultimately, the culmination of the trilogy of cases starting with Van der Peet resulted in a situation where it appears fairly easy for the government to enforce regulations that adversely affect Aboriginal peoples. First, Aboriginal peoples have the burden of demonstrating that Aboriginal title or a specific Aboriginal right exists. This burden may be particularly onerous because of the potential evidentiary problems.[121] Consequently, it is important for courts to consider and compensate for this difficulty by applying a liberal construction to agreements entered into by Aboriginal peoples. For example, in Delgamuukw, Chief Justice Lamer held that proving Aboriginal rights demands a unique approach to the treatment of evidence and in keeping with this command, the courts must come to terms with the oral histories of Aboriginal societies. Oral evidence is to be accommodated and placed on an equal footing with the other types of historical evidence that courts are familiar with, namely, historical documents.[122]
Second, another criticism of the tests set forth by the Supreme Court is the lack of flexibility in reference to the subsistence and cultural activities of Aboriginal peoples. Aboriginal customs and practices inevitably would have evolved despite contact with Europeans. Consequently, courts should recognise this inevitability and account for it. Finally, as expressed by the dissents in the trilogy, defining the particular Aboriginal activity/right can make the difference between recognition and non-recognition. This ties in with the previous criticism. Certainly an `activity' of Aboriginal peoples prior to contact with Europeans was providing for their general sustenance. In defining the particular activity of a group, the courts should take this into account and realise that Aboriginal subsistence economies were not static prior to contact, and should not be required to be so today.
There is a danger, as both dissenting judges in Van der Peet note, of applying the Court's test too narrowly without regard to the canons of construction. The requirement that to be a protected Aboriginal right the activity must comprise `an element of a practice, custom or tradition integral to the distinctive culture of the Aboriginal group claiming the right,' is clearly subject to an overly literal interpretation, especially given the majority's admonition that the custom must be `independently significant to the Aboriginal community claiming the right.'[123] Given that no monetary economy existed in Aboriginal pre-contact societies, the exchange of resources for money may almost always be problematic, as would Justice McLachlin's concern regarding attempts to establish the scale or volume of the activity.
While the Van der Peet dissenting judges' equating of livelihood activities with Aboriginal (native) title rights is, perhaps, the preferable approach, the dangers posed by a too literal reading of the majority opinion in Van der Peet regarding commercial native title rights may, in practice, be less likely to occur (particularly after the Delgamuukw decision, discussed below, which distinguishes possessory native/Aboriginal title from Aboriginal rights which are distinct from that possessory title and confines the Van der Peet trilogy to the latter). Moreover, as suggested in an earlier work:
[t]he regularity (not the scale) of a particular traditional practice seems to be the essential element in the Canadian court's analysis. [A review of the Court's decisions suggests that...], if a particular practice rises to the level of tradition or custom, that is regular rather than episodic behavior, then that practice will be protected as a native title right. `Scale' in this reading is thus equated with community rather than individual behavior, as well as with seasonal, ceremonial, historical, and socio-cultural practices as opposed to occasional events. This is arguably, more in step with the `purposive' reasoning in Sparrow and with the views expressed by the United States Supreme Court....[124]
The Delgamuukw case began `officially' on 11 May 1987. The trial involved 318 days of evidence and 56 days of oral argument, lasting until 30 June 1990. The British Columbia trial court delivered its judgement on March 8, 1991.[125] The British Columbia Court of Appeals delivered its judgement two years later.[126] The case `ended' when the Canadian Supreme Court delivered its judgement in December 1997. After over 10 years of litigation, `[i]n the end the Court ordered a new trial. The case would start again. This is because at trial McEachern J [erred because he] did not accept the oral histories...' of the Aboriginal plaintiffs offered in support of their claims to Aboriginal title to their traditional lands.[127]
The case was brought by two First Nations peoples claiming Aboriginal title to 58,000 square kilometres of territory in northern British Columbia.[128] As the Supreme Court noted, the Gitskan and Wet'suwet'en peoples' `claim was originally for "ownership" of the territory and "jurisdiction" [sovereignty] over it...[but] [a]t this Court, this was transformed into, primarily, a claim for Aboriginal title over the land in question...'[129]
The significance of Delgamuukw lies not in any ultimate victory for the plaintiffs, as they need to retry the case, but rather in the articulation of a theory of Aboriginal title which encompasses specific rights and which distinguishes between the judicial treatment of Aboriginal possessory title to land and other Aboriginal rights which may or may not be related to any specific land. In summary, the Court articulated a jurisprudential definition of the content of Aboriginal title/rights. That definition will clearly advance the rights of Indigenous peoples in Canada and may influence the development of native title law in Australia.
Before moving to a review of the Court's decision on the content and scope of Aboriginal title, the basis on which the Court reversed the decisions of the lower courts is an important consideration for future Aboriginal rights litigation.[130] Given the substantial need to rely on oral records of Aboriginal use and occupation of lands to establish Aboriginal title/rights (including native title rights in Australia), the weight accorded traditional evidence is crucial for the success of these claims.
Chief Justice Lamer noted that, `[n]otwithstanding the challenges created by the use of oral histories as proof of historical fact, the laws of evidence must be adapted in order that this evidence can be accommodated and placed on an equal footing with other types of historical evidence that courts are familiar with, which largely consists of historical documents.'[131] The justification for such an approach is twofold. First, it comports with the liberal, purposive approach of interpreting treaties, statutes, and constitutional provisions designed to reconcile Aboriginal and non-Aboriginal Canadians.[132] Second, given the lack of written records, the failure to give equal weight to oral histories would impose an insurmountable burden on Aboriginal plaintiffs asserting Aboriginal rights claims.[133]
In respect of oral histories used by the plaintiffs to establish the existence of land tenure systems as proof of their historical use and occupation of the land and as evidence of the land's significance to their culture, the Court noted that the trial judge failed to give these oral histories any independent weight.[134] Chief Justice Lamer observed that:
Although he framed his ruling on weight in terms of the specific oral histories before him...the trial judge in reality based his decision on some general concerns with the use of oral histories as evidence in Aboriginal rights cases. In summary, the trial judge gave no independent weight to these special oral histories because they did not convey historical truth, because knowledge about those oral histories was confined to the communities whose histories they were and because those oral histories were insufficiently detailed. However...these are features, to a greater or lesser extent, of all oral histories, not just the adaawk and kungax. The implication of the trial judge's reasoning is that oral histories should never be given any independent weight and are only useful as confirmatory evidence in Aboriginal rights litigation. I fear that if this reasoning were followed, the oral histories of Aboriginal peoples would be consistently undervalued by the Canadian legal system, in contradiction of the express instruction to the contrary in Van der Peet...[135]
The trial court also erred by discounting personal recollections of Aboriginal life. The Chief Justice noted:
In my opinion, the trial judge expected too much of the oral history of the appellants, as expressed in the recollections of Aboriginal life of members of the appellant nations. He expected that evidence to provide definitive and precise evidence of pre-contact Aboriginal activities on the territory in question. However, as I held in Van der Peet, this will be almost an impossible burden to meet. Rather, if oral history cannot conclusively establish pre-sovereignty (after this decision) occupation of land, it may still be relevant to demonstrate that current occupation has its origin prior to [assertions of Canadian] sovereignty. This is exactly what appellants sought to do.[136]
Finally, the trial court rejected the use of `territorial affidavits' filed by the Gitsken and Wet'suwet'en Chiefs which relied on the declarations of deceased tribal members to adduce internal boundaries. In the trial Court's view, these affidavits failed as `reputation evidence' because the reputation was unknown outside the immediate Aboriginal community.[137] However, as Chief Justice Lamer observed:
Many of the reasons relied on by the trial judge for excluding the evidence contained in territorial affidavits are problematic because they run against...[the] fundamental principal [requiring the ordinary rules of evidence to be adapted in light of the inherent difficulties associated with adjudicating Aboriginal rights claims]. The requirement that a reputation be known in the general community, for example, ignores the fact that oral histories, as noted by the Royal Commission on Aboriginal Peoples, generally relate to particular locations, and refer to particular communities and families...unknown outside of that community...Excluding the territorial affidavits because the claims to which they relate are disputed does not acknowledge that...[Aboriginal title/rights] claims are almost always disputed and contested. Indeed, if those claims were uncontroversial, there would be no need to bring them to the courts.... Casting doubt on the reliability of the territorial affidavits because land claims had been actively discussed for many years also fails to take account of the special context surrounding Aboriginal claims, in two ways. First, those claims have been discussed for so long because of British Columbia's persistent refusal to acknowledge the existence of Aboriginal title...It would be perverse, to say the least, to use the refusal of the province to acknowledge the rights of its Aboriginal inhabitants as a reason for excluding evidence which may prove the existence of those rights. Second, this rationale for exclusion places Aboriginal claimants whose societies record their past through oral history in a grave dilemma. In order for the oral history of a community to amount to a form of reputation, and to be admissible in court, it must remain alive through the discussion of members of that community...But if those histories are discussed too much, and too close to the date of litigation, they may be discounted as being suspect, and may be held to be inadmissible. The net effect may be that a society with such an oral tradition would never be able to establish a historical claim through the use of oral history in court.[138]
In summary, the Court concluded that:
The trial judge's treatment of the oral histories did not satisfy the principles...laid down in Van der Peet...They [Aboriginal appellants] used those histories in an attempt to establish their occupation and use of the disputed territory, an essential requirement for Aboriginal title. The trial judge, after refusing to admit, or giving no independent weight to these oral histories, reached the conclusion that the appellants had not demonstrated the requisite degree of occupation for `ownership'...In the circumstances, the factual findings can not stand...A new trial is warranted.[139]
While unable to reach a decision on the merits of the Gitskan and Wet'suwet'en claims, the Court notes that the opposing parties `have a more fundamental disagreement over the content of Aboriginal title itself...'[140] To provide guidance to future litigants, the remainder of Chief Justice Lamer's opinion sets out the Court's view on this issue.
The plaintiffs argued that Aboriginal title is `tantamount to an inalienable fee simple,' constitutionally protected by section 35(1), conferring the freedom to use Aboriginal lands as they see fit. The Province argued that Aboriginal title `is no more than a bundle of rights' to engage in specific activities and that the Constitution merely protects those individual rights, `not the bundle itself...[because it] has no independent content' or, alternatively, that constitutionally protected Aboriginal title, `at most, encompasses the right to exclusive use and occupation of land...to engage in those activities which are Aboriginal rights themselves...'[141] The Court accepted neither proposition. Chief Justice Lamer held that:
...Aboriginal title, in fact, lies somewhere in between these positions. Aboriginal title is a right in land and, as such, is more than the right to engage in specific activities which may be themselves Aboriginal rights. Rather, it confers the right to use the land for a variety of activities, not all of which need to be aspects of practices, customs and traditions...integral to the distinctive culture of Aboriginal societies. These activities do not constitute the right per se; rather they are parasitic on the underlying title.[142]
However, the uses of the land are not unlimited. The Chief Justice opined that the uses of the land `must not be irreconcilable with the nature of the attachment to the land which forms the basis `of an Aboriginal group's Aboriginal title,' and that this limitation is founded in the nature of Aboriginal title as a `sui generis interest in land.'[143] The sui generis nature of Aboriginal title rests on the common law's recognition that the foundation of that title is a special physical and cultural relationship with particular lands. Consequently, the common law holds that those lands may not be alienated outside the community except to the Crown. In Chief Justice Lamer's view, the inalienability of Aboriginal lands reinforces the limitation on the use of Aboriginal lands articulated by the Court, though the limitation is not intended to unduly restrict the use of the land by Aboriginal title holders. As he noted, `[i]f Aboriginal people wish to use their lands in a way that Aboriginal title does not permit,' they may surrender that title and convert the lands into a title that will allow other uses. [144]
In large part, the limitation on Aboriginal title also flows from the government's fiduciary duty to protect the rights of Aboriginal peoples. Those rights arise, as Chief Justice Lamer observed, not just from prior occupation of land, but from prior occupation based on `pre-existing systems of Aboriginal law.'[145] He notes that the common law seeks not only to determine Aboriginal rights based on prior occupation of the land, but to afford protection to that occupation in the present, and `[i]mplicit in the protection of historical patterns of occupation is a recognition of the continuity of the relationship of an Aboriginal community to its land over time.'[146] The Chief Justice was clear that the limitation should not be read as a `legal strait jacket' on legitimate Aboriginal claims to land, thereby limiting their uses of the land to traditional Aboriginal rights and activities but, rather, as a means to protect the special relationship Aboriginal people have with their lands, a relationship which provides the foundation for the common law recognition of Aboriginal title.[147]
Canvassing the Canadian jurisprudence from St Catherine's Milling through to the Court's most recent judgements, Chief Justice Lamer articulated a comprehensive view of the concept (and content) of Aboriginal title/rights. Critically important for the argument that the Canadian (and United States) jurisprudence is applicable to and informative for the development of native title law in Australia is the Chief Justice's reiteration of the point made in Calder, Van der Peet and other cases that neither the Royal Proclamation, subsequent treaties and statutes, nor the Constitution Act, 1982 created Aboriginal title; rather Aboriginal title existed prior to European settlement and was recognised by the common law.[148] This view was accepted explicitly in Mabo. Justice Brennan observed that native title rights and interests in land are not created by the common law but are pre-existing rights and interests in land that are acknowledged and protected by the common law.[149]
In an earlier essay, the author suggested that native title generally encompasses three broad categories of rights:
In sum, native title may encompass the exclusive right to occupy certain lands...or it may include a lesser interest, either exclusive or shared...such as the right to use or cross certain lands for religious or food gathering purposes, and [finally] it may include the rights to the profits of the land, ie, hunting and fishing rights.[150]
The Delgamuukw Court adopts an analogous position, articulating what amounts to a three-prong approach to defining the scope and content of Aboriginal title. Chief Justice Lamer wrote:
The picture that emerges...[from the Canadian jurisprudence] is that Aboriginal rights which are recognized...fall along a spectrum with respect to their degree of connection to the land. At one end, there are those Aboriginal rights which are practices, customs and traditions that are integral to the distinctive Aboriginal culture of the group claiming the right. However, the `occupation and use of the land' where the activity is taking place is not `sufficient to support a claim of title to the land'...In the middle, there are activities which, out of necessity, take place on the land and, indeed might be intimately related to a particular piece of land. Although an Aboriginal group might not be able to demonstrate title to the land, it may nevertheless have a site-specific right to engage in a particular activity...At the other end of the spectrum, there is Aboriginal title itself...[which] confers more than the right to engage in site-specific activities...What Aboriginal title confers is the right to the land itself.[151]
This refined definition of the content of Aboriginal title/rights requires a modification of the Van der Peet test for determining Aboriginal rights, one that emphasises both aspects of the prior presence of Indigenous peoples on territory acquired under the common law: `first, the occupation of the land, and second, the prior social organisation and distinctive cultures of Aboriginal people on that land.'[152] While the tests for determination of Aboriginal title and Aboriginal rights share broad similarities, the Chief Justice noted that the test for Aboriginal title emphasises occupation of land over distinctive cultural practices.[153] The major distinctions in the two tests are that, `first, under the test for Aboriginal title, the requirement that land be integral to a distinctive culture of the claimants is subsumed by the requirement of occupancy and, second, where the time for the identification of Aboriginal rights is the time of first contact, the time of identification of Aboriginal title is the time at which the Crown asserted sovereignty over the land.'[154]
The test for proof of Aboriginal title is equivalent to that adopted by the Australian High Court in Mabo.[155] To make out a claim for Aboriginal title, a group must show its exclusive occupancy of the land prior to assertions of British sovereignty, and `if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation.'[156] It should be noted that the Canadian Court used the words `if present occupation is relied on' thus a direct physical, continuous connection is not necessarily required. Instead, proof of occupancy is grounded in both the common law requirement of presence on the land and Aboriginal law reflecting the patterns of land use/ownership under their law.[157] In essence, as Justice Toohey notes in Mabo,[158] and as endorsed in Delgamuukw, Aboriginal occupancy of the land is to be understood in reference to the ways in which the land was held and used, that is, taking into account the character of the land and the size and lifestyle of the group claiming Aboriginal title.[159]
With respect to the requirement for `exclusivity', it is important to note that the Court did not adopt the view that access to the land could not be shared, nor did it deny the potential for joint exclusive possession.[160] Moreover, in regard to the `continuity' of the occupation of the land,' the Canadian Supreme Court held, relying on the Mabo Court's requirement for a `substantial maintenance of the connection' to the land,[161] that `there is no need to establish `an unbroken chain of continuity' between present and prior occupation.'[162] To do so, noted Chief Justice Lamer, would fail to acknowledge that in many instances the connection to the land was broken by removal from the land or other manifestations of the failure of European settler governments to acknowledge Aboriginal title to the land.[163] Moreover, such an approach would contradict the Crown's fiduciary obligations to Aboriginal peoples and the purposive approach to reconciliation, as well as perpetuate the historical injustices suffered by Indigenous peoples in Canada.[164]
The ruling in Delgamuukw on the content of Aboriginal title clearly sets the stage for a reinvigorated role for Aboriginal peoples to control and manage their lands and resources in Canada. The Court's definition of Aboriginal title should also inform the debate about the content of native title in Australia. The Delgamuukw decision has already had some impact on Australian law with one Federal Court decision adopting Chief Justice Lamer's definition of native title.[165]
Historically, most of the conflict over Aboriginal hunting and fishing rights (as well as other rights in resources) in Canada has concerned the application of provincial laws and regulations which may potentially curtail or extinguish those particular rights.[166] As noted earlier, these conflicts arise because section 88 of the Indian Act allows the provinces to pass general legislation, including fish and game laws, applicable to all citizens subject, of course, to the overriding provisions of treaties, federal legislation implementing those treaties, or unextinguished Aboriginal rights preserved by the 1982 Constitutional Amendment.
It may be useful to consider the historical treatment of hunting and fishing rights (in particular) in two categories: on-reserve rights; and off-reserve rights. Additionally, the pre-section 35 treatment of off-reserve rights can be considered from the vantage point of treaty guaranteed rights and unextinguished Aboriginal rights.
The vast majority of cases considered in relation to on-reserve hunting and fishing rights have determined that the exclusive power in relation to Indian affairs granted to the federal government by the Constitution Act, 1867 `insulates on-reserve hunting [and fishing] rights from provincial regulation.'[167] As in the United States,[168] federal conservation laws, applied reasonably and non-discriminatorily, may still curtail the exercise of Aboriginal hunting and fishing rights. As the Sparrow Court noted, the federal government retains constitutional power to legislate on Indian affairs, but such power must be reconciled with both its fiduciary obligations and, since 1982, with the section 35 constitutional guarantee to preserve existing treaty and Aboriginal rights.[169] `The best way to achieve that reconciliation,' the Court noted, `is to demand the justification of any government regulation that infringes on or denies aboriginal [or protected treaty] rights.'[170]
Following the Sparrow case, decisions by the Supreme Court like Adams[171] and Cote,[172] and application of their principles by lower courts,[173] indicate that claims of off-reserve Aboriginal rights are more likely to receive equal treatment with treaty protected rights and rights exercised on reserve lands. This was not always the case, however, as analysis of pre-Sparrow cases suggests that on-reserve and treaty protected rights received more favourable treatment than claims of `unrecognised' Aboriginal rights when raised as a defence to the application of provincial laws and regulations.[174] Though these off-reserve claims will be less difficult now, problems persist in presenting (non-treaty protected) claims/defences in criminal trials where difficulties associated with the proof of such claims are likely to arise because, while an individual defendant may be on trial, claims to these rights are really claims to a collective right often requiring production of considerable anthropological and historical evidence beyond the reach of any one defendant.[175]
In 1996, prior to delivering its judgement in Delgamuukw, the Canadian Supreme Court confirmed in Adams v The Queen that Aboriginal rights are not necessarily tied to Aboriginal title in land: `while claims to aboriginal title fall within the conceptual framework of aboriginal rights, aboriginal rights do not exist solely where a claim to aboriginal title has been made out.'[176] Consequently, as the Court determines in a companion case, a particular tradition or custom does not need to be linked to a particular tract of land, but rather the activity, such as hunting or fishing within a particular area, must be an element of a practice, custom or tradition integral to the distinctive culture of the people claiming particular rights in an area.[177] This conclusion flows from the fact that many Tribes were nomadic, but still had customs and traditions such as fishing and hunting (in usual hunting and fishing grounds) that were necessary to their culture and survival.[178] Once Aboriginal people establish that a particular activity is an aspect of their traditional and customary practices, despite the lack of title to a particular land base, the claim of right needs only to survive any proof of extinguishment by the government for the group to continue the practice.[179]
In summary, fishing, hunting, and gathering rights, as an integral part of pre-contact culture, will almost always be found to be within the circle of constitutionally protected Aboriginal rights. What may vary is the scope of the right, such as fishing or hunting for sustenance, or fishing or hunting for commercial purposes. Aboriginal peoples do not need to show Aboriginal title over land to establish an Aboriginal right to hunt or fish. As Delgamuukw makes clear, native title rights can exist separately from Aboriginal title; they are just one aspect of the full circle of Aboriginal rights.[180]
The post-Delgamuukw jurisprudence is still in its developmental stage. However, the decision in Delgamuukw assures that, at the very least, hunting and fishing rights associated with Aboriginal land claims, acknowledged by the courts or the government, will be treated equally with rights arising on reserves which include the full beneficial use of associated resources.[181]
Canadian Aboriginal water rights have developed in a manner similar to United States' law. In fact, United States legal doctrines established in seminal cases such as Winters[182] and Winans[183] have influenced Canadian Aboriginal law.[184] Presumably, then, First Nations and other Aboriginal peoples would have the water rights necessary to implement projects for which reserved land was intended, as well as the ability to protect the quantity (and, potentially, the quality) of water flows.[185]
However, the full implications of the developing Canadian Aboriginal policy and jurisprudence for water quality and quantity have yet to be answered by Canadian law. Aboriginal peoples may also have water rights not specifically reserved, but which the Tribes `intended' to reserve when making the treaties, using the liberal (that is, purposive) canons of treaty construction for Aboriginal peoples.[186]
Water rights, like hunting and fishing rights, would appear to be included in the realm of Aboriginal rights, but could be limited to historical uses of the water, and the amount of water necessary to sustain other historical uses, such as fishing (though the decision in Delgamuukw suggests that expanded, contemporary uses which do not destroy the nature of the connection to the land may fall within the ambit of protected Aboriginal title). As Bartlett observes, `[a] right to water is accordingly an integral part of aboriginal title. It [Aboriginal title] includes and does not distinguish between land and water. Both were central to traditional aboriginal life.'[187] Traditional uses such as fishing and transportation thus would seem to be within the scope of Aboriginal rights, but irrigation and hydro-electric power generation may not.[188] As Bartlett also notes, `the common conclusion [is] that aboriginal title includes water rights, but rights which are limited by traditional and historic uses...[which] suggests that the Aboriginal peoples could not reserve rights to contemporary uses because aboriginal title does not include these rights.'[189] It should be noted, however, that Professor Bartlett was writing pre-Delgamuukw and that decision may, as noted above, expand the potential uses of Aboriginal water rights.
For claims to water rights on an Indigenous group's land base, that is, reserved lands or lands subject to full Aboriginal title,[190] there may be more potential for modern water uses. Canadian water law has established that water rights are connected to land and can not be severed.[191] Therefore, Aboriginal peoples owning or occupying land could also have riparian water rights.[192]
Traditionally, in Canada, the interests of developers have prevailed despite the existence of native title rights.[193] Consequently, Aboriginal Canadian claims to resources have generally been met with a land claims settlement, and development of resources has proceeded.[194] Today, because of the Constitution Act, 1982, if Aboriginal title, associated native title rights and treaty rights have not been extinguished, the government must acknowledge Aboriginal title and other protected rights where it plans for resource development.[195] The Crown's duty to consider the implications of development on Aboriginal rights implies that Aboriginal title includes resources on the land.
In treaties with Aboriginal peoples, timber rights and rights to proceeds from minerals were either reserved, or the Aboriginal peoples were compensated when they agreed to allow development of the resources by non-Aboriginals.[196] As Bartlett notes, `[t]he application of the principles of statutory construction favoured by the Supreme Court of Canada dictates that the treaty land entitlement extends to the full resource interest of the land, including minerals and timber.'[197]
The Delgamuukw decision that Aboriginal title lands are to be treated comparably with reserve lands (that is, to include the right to full beneficial use) clearly supports the proposition that Aboriginal title includes rights to minerals, timber, and other resource wealth. Chief Justice Lamer noted that under the Indian Act, resources are set aside for the full use and benefit of the Indian Bands who occupy those reserve lands.[198] That view is supported by the Court's interpretation of other natural resources laws relating to reserve lands.[199] The Canadian position with respect to reserve (and now Aboriginal title) lands is similar to that of the United States in relation to Indian reservations where, unless specifically excluded in a treaty, the Tribes own the full beneficial use of reservation lands and their resources including minerals, timber and foraging resources.[200]
As in the United States, First Nations and other Indigenous Peoples in Canada retain considerable authority to manage their own affairs on Indian Reserves, lands made available to Aboriginal peoples via negotiated settlements and, following Delgamuukw, on lands held pursuant to Aboriginal title. In the latter case, Delgamuukw makes clear that the Indigenous holders of Aboriginal title have the full beneficial use of the land, subject to the limitation that the land may not be used in a manner that destroys the traditional connection to the land of the particular Aboriginal group holding title. This limitation is similar to the supervisory responsibility exercised by the United States government pursuant to its fiduciary duty to protect tribal rights. Similarly, Aboriginal peoples in Canada also possess Aboriginal rights (analogous to off-reservation rights in the United States), which allow them to pursue their traditions and customs on lands (and waters) not associated with reserves or held pursuant to Aboriginal title. Finally, both Supreme Courts have acknowledged that acceptance of common law Aboriginal title includes acceptance of a fiduciary responsibility to preserve and protect the rights associated with Aboriginal title.
Historically, there have been two types of land/Aboriginal rights claims in Canada. The first, considered in the Calder decision (and more recently in Delgamuukw), is generally referred to as a comprehensive claim, that is, a claim of Aboriginal title to the land, and occurs when there is no past treaty with the Aboriginal inhabitants.[201] Where dealt with politically, rather than through the courts, these claims form the basis of negotiated regional settlements. The other type of claim is the type litigated in the Guerin case. These claims may arise from alleged violations of the terms of a treaty or lease for a specific area of land,[202] as a general allegation of breach of fiduciary obligations as in Guerin, or as defences to alleged violation by Aboriginal people of government laws and regulations as in Sparrow. (Arguably, specific Aboriginal rights claims in areas such as hunting and fishing rights or commercial rights claims, like those litigated in the Van der Peet trilogy, also fall within this latter category.) Recently, in response to claims that this distinction is unfair, the Chrétien Government issued a `Red Book' that promises to end the distinction and instead create a Claims Commission designed to handle all Indian claims.[203]
Following the Calder case, in the early 1970s the Canadian Government initiated a negotiated land claims settlement process.[204] Very generally, these negotiated agreements usually provide an Aboriginal group a land base, compensation for land ceded to the government or lost access to resources, and (particularly in the most recent agreements) some form of self-government if the Tribe can establish that it has unextinguished Aboriginal title to an area, that is, that there has not been a treaty ceding the land to the Crown.[205] The earliest agreements have been characterised by one commentator as `co-management regimes' whereby the Indigenous group and the government share power to manage an area's natural resources.[206] Later settlements, however, have progressively given the Indigenous Nations greater rights, including more extensive self-government powers.
The 1975 James Bay and Northern Quebec Agreement and the 1978 Northeastern Quebec Agreement were the first modern comprehensive land claims agreements. These `gave the 19,000 Cree, Inuit and Naskapi of northern Quebec over $230 million in compensation, ownership over 14,000 square kilometres of territory, and exclusive hunting and trapping rights over another 150,000 square kilometres.'[207] The next agreement contained a slight expansion on the settlement of the Aboriginal peoples in Northern Quebec. The Inuvialuit Final Agreement of 1984 contained similar provisions with respect to the land base, hunting and fishing rights and a trust. The Inuvialuit First Nation also received the ability to participate equally in environmental and conservation issues.[208] The co-management regime between the government and Inuit applies to both public and Inuit lands. The intent is that everything concerning fisheries, wildlife, land use and the environment be reviewed and consented to by the co-management body and therefore by the Inuit. Ultimate authority remains with the government but, in practise, co-management board decisions are seldom overridden.[209]
The next two agreements, the Gwich'in and Nunavut Land Claims Agreements, gave these First Nations peoples increased participation in the management of the environment and natural resources as well as the usual provisions.[210] They also gave the First Nations resource royalties, and subsurface rights in the Gwich'in Agreement.[211]
In a significant step towards `Indigenous Sovereignty,' the Final Nunavut Agreement divides the Northwest Territories, creating the new Territory of Nunavut, approximately 2 million square kilometres of land presided over by a Territorial Parliament elected largely by an Inuit majority of 17,5000 people in a total population of 27,000.[212] The Territory of Nunavut, covering 20% of Canada (a land area the size of Western Europe),[213] came into being on 1 April 1999 and is `effectively an Inuit State and a great adventure in Indigenous self-government.'[214] Under the Final Agreement the Inuit have absolute title to 350,000 square kilometres of land within the Territory, mineral rights to 10% of the Territory and will receive nearly $1.5 billion (Can) to fund businesses, scholarships and otherwise assist subsistence economic practices, as well as a share of federal oil, gas and other mineral resource development.[215] Additionally, the Inuit will comprise half the membership on key boards and institutions which control wildlife management and environmental affairs throughout the Territory.[216]
Two other recent agreements also increased Aboriginal peoples' participation and rights in their resources. The Sahtu Bene and Metis agreement of 1994 enabled the Aboriginal peoples to retain mineral rights, resource royalties, wildlife harvesting rights, participation in management of renewable resources, land-use planning, environmental impact assessment and review, and land and water use regulations.[217]
The Yukon First Nations negotiated settlement includes an `umbrella final agreement' that increased the land and resource base.[218] It set out a framework for self-government providing greater control over land use on settlement lands and greater authority in areas such as language, health care, social services and education.[219] Most importantly, for the first time the Agreement did not require a `blanket extinguishment of Aboriginal title'.[220] Similarly, the Nisga'a Agreement-in-Principle initialled on February 15, 1996 (and finalised in 1998)[221] includes the establishment of the Nisga'a Central Government that will own and govern a large land base (1,900 square kilometres).[222] The Nisga'a will also own surface and subsurface resources on their land and be entitled to certain salmon stocks and wild life harvests.[223]
As the Royal Commission notes, these negotiated agreements offer an opportunity for Aboriginal peoples to build partnerships with government and industry that will ensure their future well-being and that of the land and resources.[224] Adequate lands, resources and political powers enable Aboriginal people to build their own communities and expand their economic interest beyond the region and settlement area.[225] Despite concerns regarding costs, time and adequate protection of resources during negotiations for these agreements, the Commission is clear in its recommendations: `[t]he cost of doing nothing, or of doing too little, could far outweigh the benefits of proceeding with development before issues of Aboriginal title are responsibly addressed.'[226]
The most recent political statement regarding Aboriginal policy is the Report of the Royal Commission on Aboriginal Peoples. The Report is a response to a 16-point mandate set out by the Canadian government in 1991,[227] the main thrust of which is that past Canadian policy towards First Nations has wrongly focused on assimilation. The Report emphasises the distinct cultures of Canada's Indigenous peoples and their ability to retain their cultures despite the continuous efforts of assimilation by the Canadian government.[228] The Royal Commission ultimately concluded that the survival of First Nations peoples depends on a larger land-base to implement political programs.[229] The Report makes it clear that without an adequate land base and access to and control of resource wealth, Indigenous groups will be unable to build their communities or structure employment and other opportunities necessary to achieve self-sufficiency. Given their current status on the margins of Canadian society, the failure of the Canadian Government to act means that Aboriginal Nations will be pushed to the edge of economic, cultural and political extinction.[230]
The Royal Commission set out four principles necessary for an improved relationship among the `sovereigns.' First, reconciliation requires recognition not only that the Aboriginal peoples were the first inhabitants of the land and have cultures distinct from European settlers but also that non-Aboriginal peoples currently inhabit the area.[231] The second principle implores Canadians to respect each other's cultures and acknowledge that the sum of these cultures makes up the entirety of Canada.[232] These principles suggest the importance of respect by both Aboriginal and non-Aboriginal peoples of one another. The third and fourth principles call for sharing of benefits and resource-responsibility by the various governments, including good faith and honesty in mutual dealings.[233] The Commission acknowledged that the First Nations peoples' right to self-governance is inherent, and not a right given by the Canadian Government, stating that `Aboriginal governments are one of three orders of government in Canada - federal, provincial/territorial and Aboriginal.'[234]
With these basic principles laid out, the Commission then focused on the division of powers among governments and addresses possible solutions for implementing settlements. First, the Royal Commission recognised that membership in Aboriginal societies is not based on race, but on political affiliation.[235] Second, it noted that the likely elements of Aboriginal jurisdiction include, but are not limited to lands, waters, sea-ice and natural resources, protection and management of the environment, economic life (along with commercial trapping and fishing), property rights (including succession and estates) and other governmental functions.[236] However, the Commission also recognised that there are certain issues, such as pollution control and wildlife protection, that may require co-management and co-operation among governments.[237]
The Royal Commission observed that negotiated settlements are the preferred method for resolving land and resource claims because of the sensitivity of the issue. In negotiations, the Crown needs to recognise that Aboriginal title includes the rights of occupancy and use of land (as well as its management) exceeding what they currently have, that there needs to be negotiations to work out these issues before Aboriginal peoples can utilise or occupy the land and that the Crown is a fiduciary and is obliged to protect Aboriginal interests in the land.[238]
The Report includes a number of criticisms of the current land claims settlement process. For example, the existing process requires an Aboriginal group to prove particular Aboriginal rights to particular land.[239] Instead, Aboriginal rights should be presumed on vacant Crown lands, placing the burden on the Crown to show Aboriginal rights do not exist.[240]
Furthermore, the Report criticises the fact that the government controls the process and `considers itself a `loser' when a claim is settled in favour of Aboriginal people.'[241]
The Royal Commission recommended that the Government set up a treaty process including three categories of land distribution: lands belonging solely to and under the sole control of First Nations; lands belonging to both Aboriginal nations and non-Aboriginal governments that would be jointly managed; and land controlled by the Crown on which Aboriginal peoples would have special rights in sacred sites. The Commission predicted that this last category would be the largest.[242] Finally, the Commission called for federal aid to First Nations by increasing their land base through steps such as returning lands owed to them under existing treaties or purchases and helping them purchase other land; encouraging First Nation participation in resource industries; and utilising more co-management arrangements.[243]
The solutions proposed by the Royal Commission also included the creation of bodies to address the grievances of Canada's Indigenous peoples. It recommended the creation of regional treaty commissions and a forum for settlement of Aboriginal lands claims and treaties to ensure that the negotiations are carried out in good faith.[244] For example, the Commission proposed the creation of an Aboriginal Lands and Treaties Tribunal that would provide interim relief in the form of injunctions while negotiations were in process.[245] It would also offer services such as arbitration and monitoring of the bargaining process to ensure good faith, and would address specific claims for breaches of treaties and other agreements.[246] This type of solution, that is, negotiation, has also been encouraged by the courts which recognise that section 35(1) of the Constitution Act, 1982 may suffice to protect existing rights, such as hunting and fishing, but also acknowledge that many other problems will not be solved by the provision.[247]
As noted earlier, the scope of this Paper does not allow for an in-depth consideration of either the negotiated lands settlements process in Canada or the work of the Royal Commission. One can, however, say with confidence that the Royal Commission will have a significant impact on the development of Indigenous land rights policy in Canada. Moreover, the admonition of the courts that negotiated settlements are critical, combined with the cost of litigation, will add impetus to the increased pace of such settlements in Canada. The success of this process may also have a positive impact in Australia where the Native Title Act 1993 (Cth) includes enhanced provisions for the development of negotiated settlements and regional native title agreements.[248] Again, the cost of litigation may well compel greater openness to negotiation by State and Territory Governments in Australia.[249]
Whether the rights developed in the context of Canadian-Aboriginal relations are applicable to or can inform the future understanding of native title law in Australia is a question that can only be addressed briefly in this Paper. In the author's view, the answer depends on identifying and understanding the source of those rights. Arguably, that source is the same in Canada and all other common law jurisdictions (including Australia): the common law's historical acknowledgment of the pre-existing rights of Indigenous Peoples which arises from their prior occupation of the land in organised societies.
The three seminal `Aboriginal title' cases of the US Supreme Court, Johnson v M'Intosh, Cherokee Nation v Georgia and Worcester v Georgia, have consistently informed the jurisprudence of other common law countries, including, Canada, New Zealand and Australia.[250] In Johnson v M'Intosh, Chief Justice Marshall noted that in the establishment of relations between North American Indian Tribes and the British Crown:
...the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty as independent nations, were necessarily diminished and their power to dispose of the soil at their own will, to whomever they pleased, was denied by the original fundamental principle, that discovery [of new territory] gave exclusive title to those who made it.[251]
In two following cases, both involving the State of Georgia and the Cherokee, the United States Supreme Court further refined the doctrine of Native (Indian) Title. In Cherokee Nation v Georgia, Chief Justice Marshall confirmed the Tribes' special constitutional status and laid the foundation for the Indian Trust/Fiduciary Duty Doctrine, requiring the federal government to protect Indian tribal interests.[252] This position was followed by the Canadian Supreme court in Guerin.[253]
In the next case, Worcester v Georgia, Marshall first revisited the principle that: `[t]he Indian nations had always been considered as distinct, independent communities, retaining their original natural rights, as the undisputed possessors of the soil...[with the single exception that the Doctrine of Discovery provided a preeminent title to the discovering nation enabling it to extinguish aboriginal title.]'[254] He went on to reiterate that the Tribes' new status under United States law as `domestic dependent nations' does not deprive those peoples of all their sovereign powers.[255]
The native title jurisprudence articulated in the Marshall trilogy established that native title rights to land and resources, as well as the rights of Indigenous peoples to govern their affairs and manage their lands, arise out of their prior occupancy of European-settled lands and the English common law's historical recognition of those rights. By assuming a paramount sovereignty, the new sovereign accepts responsibility for protecting the Indigenous Nations in their rights to occupy their lands, manage their natural resources and exercise lesser rights of self-government.[256] The Marshall trilogy and the development of Indian law in the US has played a significant role in informing Aboriginal rights jurisprudence in Canada.[257] While the Canadian jurisprudence is more recent and Canadian Aboriginal policy is undergoing rapid change, thus making the final outlines of both law and policy less clear than in the United States, the similarities are far more prominent than any differences in their `legal' treatment of Indigenous peoples.
While the Delgamuukw Court declined to rule definitively on the issue of self-government,[258] given the analogous position of lands subject to Aboriginal title with Indian reserves, recent developments in the negotiated settlements process which increasingly provide substantial measures of self-government to First Nations and other Indigenous peoples, and the willingness of the Court to consider afresh self-government claims,[259] such diminished sovereignty claims are surely within the ambit of rights associated with Aboriginal title.
The Delgamuukw Court's ruling that Aboriginal title carries with it the full beneficial use of the land, subject to the limitation that the land not be used in ways contrary to a people's traditional connection to the land and the limitation that Aboriginal title/rights may be diminished only by a compelling government purpose that does not violate the fiduciary duty owed an Aboriginal group,[260] strongly suggests that Aboriginal title encompasses self-government rights. Moreover, the Court's observation that the Royal Commission Report `devotes 277 pages to the issue' is an acknowledgment of the fact that self-government, in a variety of guises, is clearly on the policy agenda in Canada.
The confirmation in the trilogy of cases beginning with Van der Peet of commercial Aboriginal rights in resources, whether associated with reserves or Aboriginal title lands or exercised as independent rights, and the acknowledgment of independent Aboriginal rights in Adams and Cote, as well as the Court's ruling that government must consult with Aboriginal groups prior to actions which affect Aboriginal title/rights, supports the proposition that recognition of Aboriginal title/rights includes a measure of self-management of those areas and resource interests.[261] As Chief Justice Lamer noted, in rare instances when the effects of proposed actions on Aboriginal rights are minimal, all that is required is good faith consultation by government to address Aboriginal concerns, but in most cases a significantly deeper consultation is required. In some cases, consultation will rise to the level of `the full consent of an Aboriginal nation, particularly where provinces enact hunting and fishing regulations in relation to Aboriginal lands.'[262]
In summary, the judicial treatment of Indigenous rights in North America illuminates three fundamental principles of common law native title. First, the source of Indigenous land rights in newly acquired territory is the pre-existing, communal occupancy of the land by Indigenous people at the time of assertion of sovereignty to that territory by the colonising state. Treaties and treaty substitutes (including negotiated agreements/co-management regimes), statutes and proclamations do not provide the source of those rights, instead, they typically extinguish existing rights except where the Tribes were able to reserve those rights (for example, to a diminished land base or to hunt and fish in traditional hunting and fishing grounds). The Canadian Court is clear that the 1982 Constitutional Amendment preserved existing rights. Equally clear is that fact that while exclusive authority to administer Indian/Aboriginal affairs is granted to the federal government in Canada (as it is in the United States) by the Constitution, that grant does not provide a source of `title.'
Second, prior occupation of the land by Indigenous peoples also gives rise to the power to control resources on reserved/retained lands (including lands subject to Aboriginal title in Canada), as well as diminished self-government rights for Indigenous peoples. Like other Indigenous rights, those continue to exist until specifically (intentionally) extinguished.
Third, the acknowledgment of Indigenous prior occupancy by the new sovereign and the assumption of ultimate sovereignty gives rise to a fiduciary duty to protect the remaining rights of the Indigenous occupants of the land, including their lesser sovereign rights. Again, Canadian statutes, treaties, executive agreements, and other similar legal instruments may inform the specific reach or content of the fiduciary duty in particular circumstances, but that `information' ought not to be confused with the `source' of the duty to protect Indigenous peoples' rights to hold and manage their lands and other economic interests, or their interests in safeguarding their cultural, social, and political integrity.
In the author's view, the fundamental principles of native title law that arise from the Canadian (as well as the United States) jurisprudence and experience are mirrored by judicial treatment and policy developments in New Zealand.[263] They find support in Australian jurisprudence and, arguably, form part of the common law of Australia with respect to the recognition and treatment of Indigenous rights.
BA (Cum laude), University of Southern California (1970); JD, Lewis & Clark College, Northwestern School of Law (1982); LLM, University of Pennsylvania Law School (1991); Associate Professor of Law and Director, Indigenous Lands: Rights Governance and Environmental Management Project, Murdoch University School of Law, Perth, Western Australia. The author expresses his gratitude to the research assistants who contributed to this Paper: Erin Smith, JD, Lewis & Clark College, Northwestern School of Law (1998), BA, University of Virginia (1994); and Wendy Treasure, BA Legal Studies, Edith Cowan University (1995), second year LLB student, Murdoch University School of Law.
[2] G Nettheim Introduction: Overview of the Project UNSW Sydney 1998.
[3] The Alaskan statutory regime for native lands differs from the `treaty-based' regime of the lower 48 US states and is more like a regional agreements' regime. It will be considered in a future Project Discussion Paper. For an overview of the Alaskan Natives' position in US law see D S Case `The Alaska Experience: In A Twinkling The Alaska Native Claims Settlement Act and Agreements Relating to the Use and Development of Land' in G D Meyers (ed) The Way Forward: Collaboration and Cooperation `In Country' (Proceedings of the Indigenous Land Use Agreements Conference, 26-29 September 1995) (2nd edn) National Native Title Tribunal/AGPS 1996, 102-26.
[4] GD Meyers & B Landau Environmental and Natural Resources Management by Indigenous Peoples in North America: Inherent Rights to Self Government Part I The US Experience UNSW Sydney 1998.
[5] Subsequent Project Discussion Papers will review Indigenous land management regimes in Scandinavia, Greenland and Papua New Guinea.
[6] Id at 2-9.
[7] See Royal Commission on Aboriginal Peoples Vol 1 Looking Forward, Looking Back Canadian Communications Group - Publishing 1996 chs 5-7 (Royal Commission Vol 1).
[8] Meyers & Landau Self Government Part I The US Experience above nt 4 at 2-9.
[9] H Foster `Canadian Indians, Time and the Law' (1994) 7(1) Western Legal History 69, 75.
[10] Royal Commission Vol 1 above nt 7 at 99.
[11 ] Id at 100-01.
[12] Id at 113, 122-23.
[13] Id at 122.
[14 ] Ibid.
[15 ] Id at 113.
[16] Id at 114.
[17 ] Ibid.
[18] M Jackson `The Articulation of Native Rights in Canadian Law' (1984) 18 UBC L Rev 255, 259.
[19 ] Royal Commission on Aboriginal Peoples People to People, Nation to Nation: Highlights from the Report of the Royal Commission on Aboriginal Peoples Minister of Supply and Services 1996, 10.
[20 ] Royal Proclamation of 1763 made at the Court of St James on 7 October. Reprinted in M Boldt, JA Long & L Little Bear (eds) The Quest for Justice: Aboriginal Peoples and Aboriginal Rights University of Toronto Press 1985, 357-58.
[21 ] Jackson `The Articulation of Native Rights' above nt 18 at 259.
[22 ] B Slattery `Understanding Aboriginal Rights' (1987) 66 Can Bar Rev 727, 733.
[23 ] See GD Meyers `Different Sides of the Same Coin: A Comparative View of Indian Hunting and Fishing Rights in the United States and Canada' (1991-92) 10 UCLA J Env L & Pol'y 67, 92-93; and Justice Dickson's analysis in Guerin v The Queen [1984] 2 SCR 335 at 376.
[24] Royal Commission People to People, Nation to Nation above nt 19 at 10.
[25] Calder v Attorney General of British Columbia (1973) 34 DLR 3d 145 at 203.
[26] Royal Commission Vol 1 above nt 7 at 137-39.
[27] Id at 141-61.
[28] Id at 161-73 and see particularly figure 6.1 at 162 for a map (with dates) of both pre and post confederation treaty areas.
[29] Id at 141-76. See also Jackson `The Articulation of Native Rights' above nt 18 at 261.
[30] Royal Commission Vol 1 above nt 7 at 176-78.
[31] British North America Act, 1867 30 & 31 Vict ch 3 reprinted in Can Rev Stat app II No 5 (1970).
[32] US Constitution art VI, cl 2. The `Commerce Clause' gives Congress the exclusive power `[t]o regulate Commerce with foreign Nations and among the several States, and with the Indian Tribes.'
[33] s 91(24).
[34] Can Rev Stat ch I-6 (1970).
[35] Royal Commission Vol 1 above nt 7 at 256.
[36] Id at 257.
[37] Royal Commission on Aboriginal Peoples Vol 2 Restructuring The Relationship (Part Two) Canadian Communications Group - Publishing 1996, 472-73 (Royal Commission Report Vol 2 Pt 2).
[38] Royal Commission Vol 1 above nt 7 at 255-314.
[39] Foster `Canadian Indian, Time and the Law' above nt 9 at 84.
[40] Jackson `The Articulation of Native Rights' above nt 18 at 267.
[41] (1990) 70 DLR (4th) 385 at 405-06.
[42] Id at 405.
[43] Foster `Canadian Indian, Time and the Law ` above nt 9 at 85.
[44] WB Henderson & DT Ground `Survey of Aboriginal Land Claims' (1994) 26(1) Ottawa L Rev 187, 212-13.
[45] Id.
[46] A number of First Nations in British Columbia, Alberta and Manitoba responded to the Draft White Paper with their own position papers arguing for a much stronger voice in Indian affairs. The most notable of these responses is the `Red Paper' prepared by Indigenous people in Alberta: Foster `Canadian Indians, Time and the Law' above nt 9 at 85-86. As other commentators note, this organised response increased both the political awareness and effectiveness of Indigenous Nations in Canada, and arguably marks the beginning of modern Aboriginal politics in Canada: Henderson & Ground '`Survey of Indian Land Claims' above nt 44 at 212-13.
[47] See Foster `Canadian Indian, Time and the Law' above nt 9 at 94-95 re the James Bay Hydro Project; and Jackson `The Articulation of Native Rights' above nt 18 at 269-79 re the McKenzie Valley Pipeline Project.
[48] Ibid.
[49] The Indian Act discriminated on the basis of sex in defining who was an Indian. In AG Canada v Lavell [1974] SCR 1349, the Supreme Court allowed the sexual discrimination to stand. The issue was then taken to the UN Human Rights Commission in Lovelace v Canada [1983] Can Hum Rts Y B 305 but the Commission also avoided the sexual discrimination question. This was resolved in 1985 when women and children who had lost status were re-instated under An Act to Amend the Indian Act, 1985.
[50] St Catherine's Milling and Lumber Co v The Queen (1889) 13 SCR 577.
[51] RH Bartlett Resource Development and Aboriginal Land Rights Canadian Institute of Resources Law 1991, 4.
[52] Meyers `Different Sides of the Same Coin' above nt 23 at 67, 71-73.
[53] Constitution Act, 1982 s 35 confirms those Aboriginal and treaty rights existing at the time of passage of the Act.
[54] See Meyers `Different Sides of the Same Coin' above nt 23 at 109-14; Foster `Canadian Indian, Time and the Law' above nt 9 at 97; and K MCNeil `Envisaging Constitutional Space for Aboriginal Governments' (1993) 19 Queens L J 95, 104-10.
[55] (1973) 34 DLR (3d) 145.
[56 ] Foster `Canadian Indian, Time and the Law ` above nt 9 at 76.
[57 ] (No 2) (1992) 175 CLR 1, per Brennan CJ at 54-58 and Deane & Gaudron JJ at 63. See Project Discussion Paper 4: F Way (with S Beckett) Land Holding and Governance Structures Under Australian Land Rights Legislation UNSW Sydney 1999, 3-4.
[58 ] 34 DLR (3d) 145 at 156. The Court ultimately found that the sovereign had extinguished Indian title to the land when it opened the land up for settlement: at 67.
[59] Id at 145.
[60] Id at 160.
[61] [1998] 1 CNLR 1 at 58, 69.
[62 ] [1984] 2 SCR 335.
[63 ] Id at 364-91.
[64 ] Id per Dickson J at 367-78, per Hall J at 349. See also B Slattery `Understanding Aboriginal Rights' (1987) 66 Can Bar Rev 727, 730-31 & 748-49.
[65] Sparrow (1990) 70 DLR (4th) 385.
[66] Id at 406.
[67] Ibid.
[68] Ibid.
[69] MA Donohue `Aboriginal Land Rights in Canada: A Historical Perspective on the Fiduciary Relationship' (1990) 15 Am Indian L Rev 369, 383.
[70] Sparrow at 409. See also R v Van der Peet (1996) 137 DLR (4th) 289 at 302, in which Lamer CJ held that where any doubt or ambiguity exists with regard to s 35(1), it must be resolved in favour of Aboriginal peoples. Ultimately, however, he limited the application of Sparrow's broad interpretation of Aboriginal rights, declaring that such rights should be defined `in relation to Canadian society as a whole': at 312. Lamer's concept of reconciliation was legitimacy in the transfer of sovereignty rather than current and ongoing recognition and acceptance of Aboriginal rights and customs.
[71] Sparrow at 407.
[72] The Court has also recognised that the canons of constitutional construction and the `purposes behind the constitutional provision itself' are reasons for the construction of s 35(1): R v Van der Peet (1996) 137 DLR (4th) 289 at 301. The Court essentially adopted the US Marshall Court's notion of domestic dependent nations: see Cherokee Nation v Georgia (1831) 30 US 1.
[73] Sparrow at 401.
[74] Guerin [1984] 2 SCR 335. Moreover, a Aboriginal group must first surrender land to the Crown before it can be alienated because the Crown has an interest in preventing exploitation of Aboriginal peoples: at 340.
[75] Nowegijick v The Queen (1983) 144 DLR (3d) 193 at 198. In interpreting s 87 of the Indian Act, the Court said that `treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indian.' See also Simon v The Queen (1985) 24 DLR (4th) 390 (`Indian treaties should be given a fair, large and liberal construction in favour of the Indians' (at 402) and `[g]iven the serious and far-reaching consequences of a finding that a treaty right has been extinguished,