The Supreme Court of Canada has responded to s.35 claims with a well-developed legal analysis fundamentally based upon an overarching theme of reconciliation and balance. In R. v. Van der Peet (1996), the Supreme Court stated that: “Section 35(1) provides the constitutional framework through which the fact that Aboriginals lived on the land in distinctive societies, with their own practices, customs and traditions, is acknowledged and reconciled with the sovereignty of the Crown.” The Court further explained that the definition of an Aboriginal right must take into account the Aboriginal perspective, yet do so in terms that are recognizable to the non-aboriginal legal system.
The courts meet this challenge of reconciliation and balance through adherence to the following four principles of interpretation:
- Aboriginal and treaty rights are characterized as being sui generis in nature, which allows the court to recognize the coexistence of indigenous and English laws and to protect those rights which flowed from pre-existing indigenous legal regimes.
- Aboriginal and treaty rights are fiduciary in nature. The fiduciary obligation is the highest duty known in law highlighted by good faith, loyalty and trust. The relatively new doctrine of an Indigenous-specific, fiduciary obligation has fostered a legally enforceable duty of Parliament to act in the best interests of Aboriginal peoples in order to uphold the honour of the Crown.
- Section 35 does not grant Aboriginal rights in itself. Aboriginal rights existed before the 1982 constitution.
- In a similar manner to other Canadian political and civil rights, Aboriginal and treaty rights are not absolute. The federal and provincial government may justify infringement of Aboriginal and treaty rights in certain circumstances by meeting the standards established by the Supreme Court of Canada.
Based on these interpretative principles, it should be clear that section 35 provides general protection to Aboriginal rights but does not define or set out particular Aboriginal rights.
There are a number of important court decisions that have helped clarify the nature of Aboriginal rights and redefined the legal relationship between the Canadian governments and Aboriginal peoples. The courts have determined that the constitutional protection of Aboriginal and treaty rights provided by section 35 means that governmental action can only infringe or extinguish Aboriginal and treaty rights according to strict legal criteria. The tests for justifying an infringement are set out in the case law on section 35 that begins with R. v. Sparrow, which is the first Supreme Court of Canada case to deal with the application of section 35.
R. v. Sparrow (1990) 1 S.C.R. 1075
Figure 6-1: Vancouver Sun newspaper clipping on the Sparrow case. Source: http://indigenousfoundations.arts.ubc.ca/wp-content/blogs.dir/56/files/sites/8/2016/01/case_to_test_vansun_nov_4_01.jpg Permission: This material has been reproduced in accordance with the University of Saskatchewan interpretation of Sec.30.04 of the Copyright Act.
The facts of the Sparrow case concerned Ronald Sparrow, a member of the Musqueam Band, who had been charged with an offence pertaining to fishing with a longer net than permitted under the federal Fisheries Act. In court, Sparrow admitted to all of the facts in the charge, but justified it by arguing that he was exercising his Aboriginal right to fish under section 35. He argued that it was his Aboriginal right to fish for salmon in the Fraser River “where his ancestors have fished from time immemorial.” The issue before the Supreme Court of Canada was whether the restriction on fishing net length violated section 35(1) of the Constitution Act, 1982. In a unanimous decision, the Supreme Court of Canada concluded that Sparrow was in fact exercising an existing Aboriginal right that was protected by section 35.
In its decision, the Court laid down the principles that govern application and interpretation of section 35. The Court reaffirmed and relied extensively on the doctrine of the fiduciary duty that had been recognized in an earlier decision (R. v. Guerin), making it clear that in all dealing with Aboriginal peoples, the Government has the responsibility to act in a fiduciary capacity. In the end, the Court ruled that although Canada enjoys sovereignty over its Indigenous population, Aboriginal rights that exist at common law are now enshrined in the Constitution by virtue of section 35(1), and laws that interfere with the exercise of such rights must conform to constitutional standards of justification.
The Court held that an analysis of a claim under s.35(1) has four steps:
- The court must determine whether an applicant has demonstrated that he or she was acting pursuant to an aboriginal right;
- The court must determine whether the right was extinguished prior to the enactment of s.35(1) of the Constitution Act, 1982;
- The court must determine if the right has been infringed;
- The court must determine whether that infringement was justified.
Test for infringement of section 35:
- Not all interference is infringement. To test infringement, there are three questions:
- a. Is the limitation unreasonable?
- b. Does the regulation impose undue hardship?
- c. Does the regulation deny to the holders of the right their preferred means of exercising that right?
The onus is on the Aboriginal claimant to establish prima facie violation of right.
- Justification of the infringement of an Aboriginal right will be allowed if the Court determines that the particular infringement meets the following criteria:
- a. valid legislative objective (“public interest” too vague, but conservation, management, development, etc. would be acceptable justifications);
- b. interference occurs in a way that preserves the honour of Crown (i.e., no appearance of sharp dealings, government must infringe as little as possible, compensation must be considered, and consideration whether Aboriginal group was consulted).
Results of R. v. Sparrow
The unanimous decision was delivered by Chief Justice Dickson and Justice la Forest on May 31, 1990. McIntyre, Lamer, Wilson, L’Heareaux-Dube and Sopinka also heard the case. Despite the apparent victory for Aboriginal people, the practical result of the case was to order that a new trial be held.
Section 35 provides a solid constitutional base on which subsequent negotiations regarding Aboriginal rights can take place. However, there is room for broad and liberal interpretation of s.35. It is important to consider other circumstances, including the fiduciary relationship with the Crown. The Crown’s relationship with Aboriginal people is integral to definition of section 35 rights. The government has a responsibility to act in a fiduciary capacity with respect to aboriginal peoples. A fiduciary relationship between the government and aboriginals should be based on trust, rather than adversarial relations. After Sparrow, it was clear the Crown’s fiduciary obligations to Aboriginal peoples extended beyond the surrender of Aboriginal lands. The Sparrow decision demonstrated a need for improved Crown-native relations more generally, as the Crown’s fiduciary obligations were constitutionally entrenched in s.35(1) of the Constitution Act, 1982.
R. v. Van der Peet (1996) 2 S.C.R. 507
In this Supreme Court of Canada case, Dorothy Van der Peet, the appellant, was charged with selling fish caught under an Indian Food Fishing License contrary to the British Columbia Fishery (General) Regulations. The charges arose out of the sale by the appellant of ten salmon on September 11, 1987. The salmon had been caught by Steven and Charles Jimmy, under the authority of an Indian food fish license. Charles Jimmy is the common-law spouse of the appellant. The appellant, a member of the Sto:lo Nation did not contest the facts, instead defending the charges against her on the basis that in selling the fish she was exercising an existing Aboriginal right to sell fish.
The issue at the Supreme Court involved the determination of the scope of rights protected under s.35. Do the regulations infringe the appellant’s existing aboriginal right to sell fish? Ultimately, the Court found that the appellant did not demonstrate that the exchange of fish for money or other goods was an integral part of the distinctive Sto:lo culture that existed prior to European contact. The court characterized Aboriginal rights as arising only where an activity was an element of a practice, tradition, or custom integral to the distinctive culture of the aboriginal group claiming the right and traceable to pre-contact practices. The Court also found that: Aboriginal rights are independent and pre-existing, arising from fact that Aboriginal people are aboriginal (Inherent in very meaning of aboriginality); arise because Aboriginal people were already here when settlers came (Must be aimed at recognizing the interests of Aboriginal people and the Crown); rights must be directed at crucial elements of pre-existing societies; custom must be integral to distinctive culture. The Court listed ten factors in determining “integral and distinctive”:
- Custom must represent perspective of Aboriginal people themselves.
- Court must identify precisely the nature of the right being claimed.
- Right must be of central significance to Aboriginal society.
- Custom must show continuity with practices prior to contact.
- Court must be conscious of special nature of claims when considering evidence.
- Court must adjudicate on a specific, not general, basis.
- Practice must be of independent significance to the group.
- Practice needn’t be distinct to other societies.
- European-culture influenced practices do not create rights.
- Court must take account of other aspects of the relationship.
R. v. Van der Peet Results
In the decision, the Supreme Court explains that section 35(1) acknowledges the fact that Aboriginal peoples lived on the land in distinctive societies, with their own practices, customs and traditions, and provides the constitutional framework to reconcile this with the sovereignty of the Crown. Additionally, the Court attempts to avoid the dilemma of a frozen rights doctrine by allowing the group to advance and modernize the performance of particular Aboriginal rights as long as the particular right predates colonial contact and is distinctly integral to the particular aboriginal society.
The following test should be used to identify whether an applicant has established an aboriginal right protected by s.35(1): in order to be an Aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the Aboriginal group claiming the right. In assessing a claim for the existence of an Aboriginal right, a court must take into account the perspective of the Aboriginal people claiming the right. It must also be recognized, however, that that perspective must be framed in terms recognizable to the Canadian legal and constitutional structure. As has already been noted, one of the fundamental purposes of s.35(1) is the reconciliation of the pre-existence of distinctive aboriginal societies with the assertion of Crown sovereignty. Courts adjudicating aboriginal rights claims must, therefore, be sensitive to the Aboriginal perspective, but they must also be aware that Aboriginal rights exist within the general legal system of Canada.
R. v. Gladstone (1996) 2 S.C.R. 723
The facts of this case involved Donald and William Gladstone, members of the Heiltsuk Indian Band. They possessed Indian food fish licenses, which gave them the opportunity to harvest limited amounts of herring spawn on kelp. They were charged under the Fisheries Act for selling it. The charges arose out of events taking place in April of 1988. The appellants did not dispute the essential facts of the case. The essence of their defense was that, in these circumstances, the regulations violated the appellants’ Aboriginal rights as recognized and affirmed by s.35(1) of the Constitution Act, 1982.
The issue at the Supreme Court of Canada focused on the justificatory standards for the infringement of an Aboriginal right. The Supreme Court determined that after conservation goals have been met, the government is not required to give exclusive priority to Aboriginal fishers. Rather it requires that the government demonstrate that it has taken account of the existence of Aboriginal rights and allocated the resources in a manner respectful of the fact that Aboriginal rights-holders should not be permitted exclusive commercial exploitation of a resource.
Aboriginal rights are a necessary part of the relationship of Aboriginal societies with the broader political community. Placing limits on those rights is viewed as a necessary part of that relationship as it affects the political community as a whole. As seen in R. v. Gladstone, objectives that can limit an Aboriginal right include pursuit of economic and regional fairness and recognition of the historical reliance on fishery by non-Aboriginal groups.