Aboriginal Rights in Transition: Reassessing Aboriginal Title and Governance

Abstract

In the past five years, there have been some very significant political and legal developments in relation to the Aboriginal peoples of Canada. On 1 April 1999, Nunavut emerged as a new territory in the central Arctic, under the de facto control of the Inuit residents who comprise about 85 percent of the population. previous August, the Nisga'a Agreement was initialed in British Columbia after almost twenty-five years of negotiations. This is the first modern land-claims agreement to be signed in a province where most of the land is claimed by Aboriginal peoples by virtue of their Aboriginal title. On 7 January 1998, the Canadian government announced a new policy of reconciliation with the Aboriginal peoples, aimed at strengthening Aboriginal governance and economic development, and healing some of the wounds caused by the tragic legacy 0f the residential school system. This policy initiative was in partial response to the massive five-volume Report of the Royal Commission on Aboriginal Peoples, released in the fall of 1996, that condemned Canada for its past treatment of the Aboriginal peoples and recommended a fundamental restructuring of the relationship based on principles of mutual recognition, respect, sharing, and responsibility. These political arrangements and policy initiatives have been matched by equally dramatic developments in the law of Aboriginal rights by the Supreme Court of Canada. In a series of important decisions, the Court has come to grips with a number of issues that it did its best to avoid in the past, involving the identification and definition of Aboriginal rights, the content of Aboriginal title to land and the requirements for proving it, and the relevance of the law of New France to Aboriginal rights today. This paper will focus on these recent developments in the law, as well as attempting to identify areas where the law of Aboriginal rights is incomplete and so requires further judicial elucidation. Constitutionalization of Aboriginal Rights and the Integral to the Distinctive Culture Test Prior to three decisions released by the Supreme Court in August of 1996, which are collectively known as the Van der Peer trilogy, there were no clear legal guidelines for identifying and defining Aboriginal rights. Those rights were generally known to arise from the precolonial presence of Aboriginal societies in Canada and their occupation of lands but, prior to 1996, the Court had not laid down any rules for determining which practices and traditions qualified for protection as Aboriginal rights and which did not. This matter became particularly important when Aboriginal rights were accorded constitutional protection (along with treaty rights, which will not be discussed in this paper) at the same time as the Canadian Charter of Rights and Freedoms was introduced in 1982. This protection was provided by section 35(1) of the Constitution Act, 1982, which states that The aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. [1] intention was to i dentify and define Aboriginal rights by political means and, possibly, by further constitutional amendment. But even though four constitutional conferences were held in the l980s to accomplish this task, the talks foundered over the issue of Aboriginal self-government. As a result, identification and definition of Aboriginal rights were relegated to the legal forum of the courts by default. [2] Supreme Court first considered the effect of the constitutionalization of Aboriginal rights in the Sparrow case, decided in 1990. [3] In that case the right in question--the right of the Musqueam Nation in British Columbia to fish for food, societal, and ceremonial purposes--was accepted by the Court without the need to formulate a test for identification of Aboriginal rights generally. Court focused instead on the issues of extinguishment and infringement of Aboriginal rights, holding that the rights constitutionalized in 1982 are those that were existing in the sense that they had not previously been extinguished by clear and plain legislation or treaty. …