1. UNDERSTANDING ABORIGINAL AND TREATY RIGHTS: IMPLICATIONS FOR RESOURCE DEVELOPMENT Karin Buss, Boughton Law kbuss@k2blaw.ca U. of A. May, 2016 1

2. Overview Sources of the rights of First Nations Aboriginal rights (includes aboriginal land title) Treaty rights Origin and nature of these legal rights Constitutional protection Honour of the Crown/Duty to Consult Sources of Conflict 2

3. Aboriginal Rights The inherent rights possessed by the aboriginal peoples of Canada Source of the rights: 3 the fact that “ when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries”... R.v. Van der Peet [1996] 2 S.C.R. 507 per Lamer. C.J at para 30

4. Categories Aboriginal Rights Aboriginal title: collective right to exclusive use and occupancy of land Right to customary law ( ex. custom adoption) Right of cultural integrity: the right to engage in present-day activities that are based on the practices, customs and traditions that were integral to their distinctive cultures at the time of European contact religion, language, art, music, narrative and cultural performance; harvesting and material production activities 4

5. Categories of Aboriginal Rights ctd The right to self government The right to conclude treaties To enter binding treaties and secure the performance of the promises in them The right to the fiduciary protection of the Crown fair, honest treatment, protection from exploitation 5

6. Legal Origin of Aboriginal Rights Per International & British Imperial Law: Indigenous peoples were independent entities holding title to their territories and ruling themselves under their own laws. Applied to colonies after Britian asserted sovereignty the local law of the colony remained in force except to the extent incompatible with the Crown’s suzerainity 6

7. Royal Proclamation 1763 Proclamation of the King asserting sovereignty over the territories formally ceded by France to Britain in 1763, after the 7 years war. Acknowledged aboriginal title to “Ruperts Land” and that it remained aboriginal land until ceded & treaties negotiated Prohibited settlers from buying land from the Indians 7 i

8. Treaties Trade and military alliances, ex. Treaty Albany 1701 Peace & Friendship Treaties Mi’kmag & Maliseet 1725-1779 Land cessation agreements along St. Lawrence River and Great Lakes after 1783 BC: the Douglas Treaties, 1850 -1854 James Douglas, HBC Chief Factor and Governor of the colony, negotiated 14 treaties to obtain land for settlement in and around HBC posts (in exchange for lump sum of $ and continued right to hunt & fish) No more treaties after Douglas, as BC refused to acknowledge aboriginal rights 8

9. Post Confederation In the Canadian territories – Ontario and west 1871-1921 Treaties 1 to 11 Settlement proceeded in BC, Yukon, NWT, Quebec and Maritimes without Indians surrendering lands via treaty. Modern Treaties 1975- present James Bay treaty in Quebec, 1975 Gwich’in 1993, Nunavut 1993, etc 9

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11. Constitution Act, 1982, s. 35(1) recognizes and affirms the “existing aboriginal and treaty rights of the aboriginal peoples of Canada”. pre 1982: federal gov’t could legally extinguish aboriginal and treaty rights by passing a statute. new era of legal recognition and respect; rights can no longer be extinguished. 11 Constitutional protection means all laws passed by parliament and the provinces must be consistent with these rights

12. Treaty Rights the rights explicitly and implicitly agreed upon through the treaty negotiation process. source: the relevant treaty (ex. Treaty 8) relationship to aboriginal rights: recognize and confirm certain aboriginal rights, such as the right to hunt, fish and trap may modify or extinguish aboriginal rights (such as aboriginal title) Other aboriginal rights not affected – ex. right to self government 12

13. Interpreting Treaty Rights Interpreted liberally in favour of the Indians because the British “held the pen” Treaties – the text is only the beginning; also relevant is: First hand accounts, oral history, reports Consider historical, cultural, political circumstances and objectives of the parties to be make ‘honourable sense” of the arrangement Treaty rights are not “frozen in time” and may be practiced in its modern form and vigour. 13

14. Treaty 8 1899 14

15. Treaty 8 -ctd Process of negotiation Laird, McKenna and Ross – different negotiations and different negotiators Metis scrip or treaty Indian? self selection Pre-printed text Oral promises Kinosayoo – we can make out living without the queen Laird’s speech – you will be better off with the treaty than without it, can make living as before but more profitably, better cows, furs will earn more Not confined to reserves, free to hunt, fish and trap as before 15

16. Commissioners’ Report “we had to solemnly assure them that only such laws as to hunting and fishing as were in the interest of the Indians and were found necessary in order to protect the fish and fur- bearing animals would be made, and that they would be as free to hunt and fish after the treaty as they would be if they never entered into it”. Commissioner David Laird 16

17. Text of the Treaty the right to pursue their usual vocations …, subject to regulations made by the government, and “saving and excepting such tracts as may be required or taken up” for “settlement, mining, lumbering, trading or other purposes” Reserves; one square mile for each family of five; Treaty presents, $25.00 for each Chief, $15.00 for each Headman, and for every other Indian $5.00; every third year a suitable suit of clothing for Chief and Headman; Salaries for teachers to instruct the Indians; An annual allotment of ammunition and twine Cows, oxen, and implements for the establishment of agriculture, once reserves were selected. 17

18. Importance of Treaties Treaties are constitutional documents – foundational documents by which aboriginal peoples entered into confederation ‘We are all treaty people” per Truth and Reconciliation Issue is interpreting and Implementing the meaning and spirit of the treaties in a manner relevant modern society 18

19. Honour of the Crown Unwritten constitutional principle that the crown must act honourably vis a vis aboriginal peoples What does this require? the duty to consult aboriginal peoples when contemplating decisions or conduct that may adversely affect their rights, the duty to fulfill the purpose of treaties and be diligent in fulfilling constitutional obligations owed applicable Aboriginal peoples – including treaties to act honourably in defining the rights it guarantees and in reconciling them with other rights and interests. 19

20. Aboriginal Peoples & Resource Development 20 Why the conflict?

21. Conflicting rights Crown has right to ‘take up land” for mining, lumbering etc Aboriginal people have right to pursue their traditional vocations and way of life on the land These competing rights must be balanced (Mikisew v. R [2005] 3 S.C.R. 388) This is one reason for the duty to consult – ultimately the goal of consultation is reconciliation of the respective rights of the crown and aboriginal peoples 21

22. Conflicting understanding of Rights First Nations:Governments: partners in confederation who would share in the bounty of the land and resources Land has been surrendered, no economic rights right to use land for cultural purposes as well as livelihood right to hunt for food only; not location specific or species specific citizens ‘plus’ due to constitutional status of rights and pre-existing societies effectively citizens ‘minus’ Politically unpopular to recognize any special rights or status Right to be meaningfully consulted and rights respected and accommodated Consultation is just a procedure; strive to minimize obligations and isolate from development 22

23. Sources of Conflict Insufficient land & resources to accommodate all land uses Natural resource wealth flows from aboriginal lands to others – government, companies, non-aboriginal Canadians Inequality persists in living standards, incomes, education, health, Province views Indians and reserves as federal responsibility; Federal government sees its role as very limited –wants out of ‘the Indian Business’ Both the previous federal and provincial governments changed the regulatory system to exclude or minimize participation by aboriginal people 23

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25. What do First Nations want? Similar to other governments and people Respect for their jurisdiction and rights, traditional knowledge Ability to continue cultural practices, traditional land use Healthy communities A reasonable balance of environmental protection and economic development A sustainable economy Reasonable share of the benefits of development 25

26. 26 Thank You!