Aboriginal Rights Essay Research Paper Did the

Aboriginal Rights Essay, Research Paper

Did the Constitution Act, 1982 help to resolve the nature of aboriginal people rights in Canada. Through a brief historical approach of the courts and recent decisions of the Supreme Court of Canada, this paper intends to demonstrate how these decisions have substantially changed the landscape of aboriginal and treaty rights. This paper will also concentrate on issues of Treaty rights, aboriginal rights and title, reserved lands, harvesting rights, as well as self-government to further illustrate how the aboriginal peoples of Canada have been treated both unfairly and unjustly.

Before going further it is necessary to define how the Canadian government was established and came into power. Canada is an independent parliamentary democracy. Once a colony of Great Britain, it became independent in 1867 through the British North America Act. Provisions of this act made it necessary for the British Privy Council to approve any amendment to the constitution. In 1982 the British North America Act was replaced by a new constitution for the government of Canada. Queen Elizabeth visited Parliament Hill to proclaim the document and this act then completed the transfer of constitutional powers from Great Britain to Canada.

During Canada’s infancy the Royal Proclamation of October 7, 1763 was set forth by British Parliament. This document has been called the “Magna Carta of Indian Rights” and has been held by the courts to have “the force of a statute which has never been repealed”. It was, in part, intended to end the frauds and abuses which had marked the dealings with Indians in respect of their reserved lands and hunting grounds.

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.

(Royal Proclamation, 1763)

Even though lands where reserved for Indians by the Royal Proclamation, abuses continued. Only in Ontario had there been a consistent pattern of purchasing Indian lands by Treaty prior to Confederation. The Robinson Treaties of 1850, in fact, were models for the subsequent “numbered Treaties”. These treaties recognized the government’s desirability of protecting Indian rights from adverse local interests. Jurisdiction over Indians was entrusted to the federal government, but a series of court decisions diminished that authority and Canada’s powers to administer Indian lands. Indian powers of self- determination and rights to lands and resources were also greatly diminished.

The post-Confederation numbered Treaties – Rupert`s Land, 1870, were very similar to each other in taking cessions of Aboriginal title, promising reserves in proportion to population, small annuities, the continued exercise of hunting, fishing and trapping rights, ammunition, fishing twine, farm implements and other goods and services. The promise of schools on reserve in many Treaties is seen by First Nations as a commitment to provide education for their children; the promise of a medicine chest in one Treaty has been held by the courts to be a promise of health services. Canada does provide these programs, although it generally denies that there is a Treaty obligation to do so.

The promise of reserve lands was in a number of instances not fulfilled; those that were set apart were coveted and large areas carved out from them, sometimes with the consent of the communities as dictated by the Indian Act, sometimes unilaterally and even without compensation; reserve lands that could, under the Treaties, be expropriated by Canada for its own purposes became vulnerable to any municipality or corporation with expropriation powers.

Only after section 35 of the Constitution Act, 1982 was in place, the Court came to the view that overly strict interpretation of Treaties would lead to continued injustice. In its 1983 decision in Nowegijick v. The Queen, and again in Simon v. The Queen in 1985, the Court adopted the following rule of construction:

treaties and statutes dealing with Indians should be given a fair, large and liberal construction and doubtful expressions resolved in favor of the Indians, in the sense in which they would be naturally understood by the Indians.

(Simon v. The Queen, 1985)

Treaties in Canada, thanks to section 35 of the Constitution Act, 1982 now have greater legal protection than ever before. At the same time Treaty rights are not immune from legal threat. The historical Treaty process was heavily weighted in favor of government.

If Treaty rights were not always secure under Canadian law, Aboriginal rights were virtually non-existent. These supposed rights could be regulated by any level of government. Until 1982, there was no recourse and, until 1990, no one knew what recourse there was: Sparrow v. The Queen. Aboriginal title was also tenuous. Aboriginal title is in effect a claim to negotiate a Treaty with the Crown. It might be said that the courts favor the view that Aboriginal title is a political issue more than a legal one. Certainly it is a political issue too, with important implications in British Columbia, where Aboriginal title still exists in much of the province, and in Quebe