Dear Sirs and Madams:
Did you know that Canada’s parliamentary buildings sit on unceded Algonquin land? “The House of Commons, the Senate, and the Supreme Court of Canada make laws for all Canadians while situated on land that was never lawfully purchased”. This contravenes formal legal rules established for encroaching on Indigenous lands. Today’s post reviews significant Aboriginal jurisprudence from the Supreme Court of Canada (SCC) that interpreted the BNA Act and the Constitution Act, 1982 with respect to the Crown’s negotiations with Indigenous groups.
On Monday, we discussed the Royal Proclamation of 1763. It essentially allowed the Crown to encroach on “Indian Territory” through negotiations or treaties. Because the Crown retains sovereignty, the Royal Proclamation established an orderly transition of control rather than assured Indigenous sovereignty over “Indian Territory”. At Confederation, s. 91(24) of the BNA Act gave Parliament exclusive jurisdiction to make laws respecting “Indians, and Lands reserved for the Indians” but did not recognize inherent or existing Indigenous rights. Section 35 of the Constitution Act, 1982 protects existing “aboriginal and treaty rights” and s. 35.1 guarantees aboriginal participation in the discussion respecting Indigenous rights.
Canadian common law jurisprudence has attempted to solve some of the conflict arising when federal and provincial legislation affects Indigenous land or interests in land. In Calder et al v. Attorney-General of British Columbia, the SCC held that Indigenous land rights survived European settlement unless a treaty extinguished such rights. In Guerin v. The Queen, the SCC determined that the Crown’s fiduciary duty arises from the nature of Indian title and that Indian land interests are only transferable to the Crown. However, the Court in R. v. Sparrow also asserted that rights could be extinguished by the Crown without consent by clearly expressed legislation before the 1982 Constitution and with consent or by constitutional amendment after the 1982 Constitution because s. 35 entrenched those rights.
The Court in Sparrow also held that the government could infringe on indigenous rights and title to land with a “compelling and substantial” rationale. The SCC maintained that the Crown still has to act in accordance with the fiduciary duty it owes Indigenous groups and must act honourably in light of the historical and future relationship with Indigenous peoples. The Court expanded on the principle in R. v. Van der Peet that pre-contact Indigenous claims are not frozen in time. Indigenous rights are flexible in that they are not simply the same as rights were in the 1700s. This means that that the Crown has to consider needs that are unique to Indigenous peoples in today’s society.
In Delgamuukw v. British Columbia, the SCC held that Indigenous land rights and the Crown’s obligations are unique because they predate Crown sovereignty. It also allowed a more flexible evidentiary standard to accommodate oral history traditions that were more prominent in Indigenous cultures than in the English common law system. The Court specified that Indigenous perspectives needed equal weighting to Canadian common law perspectives on property ownership. However, this “equal weighting” did not amount to giving a veto power to indigenous voices and there is a broad range of legislative objections that can justify infringement. The Court held that indigenous rights involve exclusive use and occupation but, again, the Crown can infringe on these rights if they exercise their duty to consult and accommodate affected communities. This is necessary even where aboriginal title is asserted but not yet proven. The duty to consult is flexible: its intensity increases with significant infringement and with a strong indigenous claim to title.
The Court also expanded on the principle of the honour of the Crown in negotiations regarding resource development in areas where aboriginal title and rights are asserted but not established. The honour of the Crown requires consultation and accommodation in good faith and actual consent, not just consultation, may be required in some circumstances where title is officially established.
Most recently, in 2014, the Tsilhqot’in Nation v. British Columbia decision made headlines for several reasons. The Court declared indigenous title to off-reserve lands for the first time. It extended the title to a large area that an Indigenous group used regularly and exclusively at Confederation. It asserted that Indigenous rights are exclusive to all others including provincial and federal legislation. Pam Palmater, a lawyer and chair of Indigenous Governance at Ryerson University, suggests that there remain large areas in Canada that have never been ceded, negotiated, or compensated for. Palmater further asserts that indigenous human rights have suffered as a direct result of being subject to government control over their lives and territories. The Tsilhqot’in decision, she points out, clarified that consent, versus mere consultation, is required.
Treaty negotiations are not just part of Canada’s colonial history. Concerns about Indigenous land rights and title are currently at issue in Ontario. The provincial and federal governments’ consultation process with members of the Ontario Algonquin nation affects a land claim that includes Canada’s capital. Despite an Agreement-in-Principle ratified by the Algonquins of Ontario, some scholars argue that this is a continuation of the government’s colonial management of a group of people. The Agreement-in-Principle is not binding but forms the framework for negotiations. The region under dispute is approximately 36,000 km2 with a population of about 1.2 million. Both Indigenous and non-Indigenous Canadians could be affected in the short term and the long term. By revisiting the errors made under colonial practices, Canada will be in a better position to address Indigenous claims.
Your humble servant,
 “Chiefs say Proposed Algonquin Land Claim Deal Illegal, Fraudulent” (3 Mar 2016), CBC News, online: <www.cbc.ca/news/indigenous/algonquin-land-deal-illegal-1.3475359>; Lynn Gehl, “‘Oh Canada! Your Home is Native Land’: The Algonquin Land Claims Process”, Atlantis 20:2 (2005), online: <www.lynngehl.com/uploads/5/0/0/4/5004954/51.pdf>.
 Robert Potts, “Algonquin Land Claim, a Journey of Reconciliation” (28 Jun 2013), The Hill Times, online: <https://www.hilltimes.com/2013/06/28/algonquin-land-claim-a-journey-of-reconciliation/25205>.
  SCR 313, 34 DLR (3d) 145.
  2 SCR 335, 13 DLR (4th) 321.
  1 SCR 1075, 70 DLR (4th) 385 [Sparrow].
  3 SCR 1010, 153 DLR (4th) 193 [Delgamuukw].
  2 SCR 507, 137 DLR (4th) 289.
  2 SCR 257,  2 SCR 257
 “Pam Palmater on Court Rulings Impacting Aboriginal Rights” (2 Jun 2015), CBC
 Ibid; Pam Palmater, “Canada’s State of Emergency” (10 Mar 2005), TedxRyersonU, Tedx Talks, YouTube, online: <https://www.youtube.com/watch?v=lrd4848Q064>.
 Lynn Gehl, “Canada’s Interim Comprehensive Land Claims Policy is No More than Colonial Policy” (27 Nov 2014), Anishinabek News, online: <anishinabeknews.ca/2014/11/27/algonquin-chiefs-say-tsilhqotin-supreme-court-decision-is-no-more-than-colonial-policy/>.
 Lynn Gehl, “Why I’m Hoping the Algonquin Land Claim Proposal is voted Down” (23 Feb 2016), Ricochet Media, online: <https://ricochet.media/en/970/why-im-hoping-the-algonquin-land-claim-proposal-is-voted-down>; Potts, supra note 2.
 Algonquins of Ontario Agreement-in-Principle Executive Summary (2016), Indigenous and Northern Affairs Canada, online: <www.tanakiwin.com/wp-system/uploads/2015/06/Frequently-Asked-Questions-and-Executive-Summary.pdf>.