Aboriginal Group Rights and Environmental Protection
Randy Kapashesit and Murray Klippenstein*
Aboriginal peoples base their relationship with
the environment on concepts of respect and
duty rather than rights and claims. Their belief
in the seamless interaction and sacredness of
all life does not allow for the separation of
humanity from nature, or secular from spiritual
life. Aboriginal environmental ethics reflect
this sense of unity by emphasizing balance and
sustainability. The authors find that Aboriginal
ecological management systems incorporate
these environmental ethics into activities such
as hunting and fishing through social practices
and sanctions. These ethics, although informal
and unwritten, have been enforced by recog-
nizable social institutions. Thus, Aboriginal
ecological management systems continue to
offer effective and viable models for sustain-
able environmental relations. The existence
and success of Aboriginal ecological manage-
ment systems leads the authors to argue for
their recognition and protection through an
interpretation of s. 35(1) of the Constitution
Act, 1982 based on group rights. Such an inter-
pretation, it is suggested, flows from existing
legislative structures, case law and the text of
s. 35(1). The authors conclude that Sparrow, a
recent decision by the Supreme Court of Can-
ada, provides a promising legal framework for
recognizing and protecting those Aboriginal
group rights crucial
to environmental
protection.
La relation que partagent les peuples autochto-
nes avec l’environnement puise ses sources
dans les concepts de respect et de devoir, plu-
t6t que ceux de droits et de r6clamations. La
nature sacr6e et l’interddpendance de toutes les
formes de vie ne peut nous permettre de s6pa-
rer l’humanit6 de la nature, ou encore s6parer
]a vie spirituelle de la vie s6culi~re. La concep-
tion dthique des peuples autochtones en 6gard
A l’environnement refl~te cette unit6, dans ]a
mesure oi elle pr6ne l’quilibre et sustenta-
tion. Les auteurs sont d’avis que les syst~mes
d’administration 6cologique des peuples auto-
chtones incorporent cette conception 6thique
au sein de diverses activit6s telles la peche et
Ia chasse, par le biais d’usages sociaux et de
sanctions. Les mesures dthiques, bien qu’elles
ne soient ni 6crites, ni formelles, ont 6t6 ren-
forcdes A l’acte d’institutions sociales bien
d6finies. Ainsi, les syst~mes d’administration
6cologique des peuples autochtones cons-
tituent un modle efficace et viable pour des
relations environnementales sustentatrices.
L’existence, ainsi que le succ~s, de ces sys-
t~mes d’administration 6cologique ont incit6
les auteurs a militer en faveur de leur recon-
naissance et leur protection par le biais d’un
interpr6tation de l’article 35(1) de la Loi cons-
titutionnelle de 1982 lequel article est bas6 sur
les droits collectifs des peuples autochtones.
Selon les auteurs, une telle interpr6tation
d6coule des structures 16gislatives existantes,
de la jurisprudence, ainsi que du libell6 de l’ar-
ticle 35(1). Les auteurs en concluant que l’af-
faire Sparrow, d6cid6e par la Cour supreme du
Canada, offre une perspective promettante en
6gard A la reconnaissance et Ia protection des
droits collectifs des peuples autochtones, les-
quels droits sont essentiels pour assurer ]a pro-
tection de l’environnement.
* The authors would like to thank Roger Justus for his research, insights, and other assistance in
the writing of this paper. Shin Imai provided many helpful comments.
McGill Law Journal 1991
Revue de droit de McGill
McGILL LAW JOURNAL
[Vol. 36
Synopsis
Introduction
I.
Aboriginal Environmental Ethics
H. Aboriginal Ecological Management Systems
I. The Political Background of Aboriginal Group Rights
A. Group Rights and Individual Rights
B. Aboriginal Rights as Group Rights
1. Aboriginals and Liberal Individualism
2.
3.
The Attempted Imposition of Liberal Individualism
The Rejection of Liberal Individualism
IV. Legal Recognition of Aboriginal Group Rights in S. 35(1)
A. The Legal Basis for Aboriginal Group Rights
1. The Existing Legislative Structures
2.
3.
The Prevailing Legal Concepts
The Text of S. 35(1)
B. The Content of Aboriginal Group Rights
1. Necessary Rights
Internal Authority
2.
3.
External Relations
C. The Effect of Sparrow
Conclusion
***
Introduction
Aboriginal communities are generally characterized by a healthy respect
for the environment. In view of this, it seems clear that there is much to be
gained from encouraging Aboriginal communities to put that respectful outlook
into practice in their own lives and in their own way. This article explains why
Canadian society should give Aboriginal communities room to flourish in their
1991]
ABORIGINAL GROUP RIGHTS
own ecological systems, and argues that the obligation to do so already is in
place, in the form of s. 35(1) of the Constitution Act, 1982.’
The Aboriginal respect for the environment, which we will call Aboriginal
environmental ethics, has a great deal in common with the ethical and philo-
sophical attitudes of non-Aboriginal environmentalists. This often results in alli-
ances between Aboriginals and non-Aboriginal environmentalists. Of course,
under pressure, disputes over principles and goals surface, raising fundamental
questions. How can white urban technocrats possibly regulate a relationship
between Aboriginal hunter and game which from the hunter’s perspective is
spiritual? Why should Aboriginal communities be exempt from certain environ-
mental laws?2
We argue that recognition of Aboriginal community practices and social
structures is a step forward in environmental protection. These community prac-
tices are often unconscious propagators of accumulated centuries of respect for
nature, both living and inanimate. It is a wise course to acknowledge and rein-
force these practices in the Canadian legal system. In fact, we say that s. 35(1)
has already done so.
We will argue that (1) Aboriginal environmental ethics existed in the past,
and survive and function today. (2) These ethics are more than an abstract belief
system; they are actually lived and practised in activities such as hunting, trap-
ping and fishing. The practice of these ethics takes place at the social or group
level, and requires social cohesion to operate. (3) Many of these activities, such
as hunting, trapping and fishing, are recognized as Aboriginal or treaty rights.
However, the essential group nature of these rights has not been fully elaborated
by the courts and other legal institutions. Such an elaboration of the group
nature of these rights would ensure that (4) the social structure by which Abo-
riginal environmental ethics is implemented would be explicitly protected by
the Canadian legal system.
The recognition or rejection of the group nature of Aboriginal rights is an
important aspect of Aboriginal environmental relations. The possibility of an
Aboriginal role in environmental protection is very limited without a concept of
Aboriginal rights as group rights. Of course, if a group conception of Aboriginal
‘Being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Constitution].
S. 35(1) states that “[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada
are hereby recognized and affirmed.”
2See, generally, O.D. Schwarz, “Indian Rights and Environmental Ethics: Changing Perspec-
tives, and a Modest Proposal” (1987) 9 Environmental Ethics 291; Law Reform Commission of
Canada, The Interaction Between Environmental Law Enforcement and Aboriginal and Treaty
Rights in Canada (Draft Study Paper) by D. Nahwegahbow & B. Morse (April 1986); J.W.
Higham, “Environmental Assessment and Management on Indian Reserve Lands in Canada”
(Paper presented to the VIII Annual General Meeting of the International Association for Impact
Assessment, June 1989) [unpublished].
REVUE DE DROIT DE McGILL
[Vol. 36
rights were to be fully adopted, it would also likely affect the manner in which
Aboriginal law is applied in areas other than protection of the environment.
A group rights theory is needed particularly to counter the generally indi-
vidualistic direction of analysis in the area of Aboriginal rights.’ Schwartz, for
example, argued against what he calls “history-based groupism,”4 including in
this concept rights granted to Aboriginal peoples as communities or collectiv-
ities rather than as individuals. He advocates that the s. 35(1) constitutional
guarantee of Aboriginal rights should be interpreted with principles that
advance the ideals of liberal individualism, but which satisfy, or do as little affront
as possible to, those whose constitutional programs are grounded in history-based
groupism. When … no reconciliation between conflicting philosophies can be
expressed in practical arrangements, then liberal individualism ought to prevail.5
A group rights approach to Aboriginal rights is not inconsistent with the exis-
tence of individual Aboriginal rights. We will not attempt to label various activ-
ities as one class of rights or the other. However, it is implicit in our argument
that many rights related to the environment are group rights rather than individ-
ual rights.
Our focus on group rights may be compared with the commonly heard
claim for an Aboriginal right to self-government. The latter is a claim of
immense significance to Aboriginal peoples. However, despite its domination of
political discussion, the concept has received almost no recognition in the
courts.6 We will show that the notion of group rights, on the other hand, has
been implicitly and sometimes explicitly accepted by the courts and legislatures
for a very long time. Our hope is to begin to open up the real implications of
that recognition. Of course, self-government and group rights share much com-
mon ground conceptually, and a fuller sense of group rights is compatible with
recognition of a right to self-government.
We will first briefly review the characteristics of Aboriginal environmental
ethics in order to determine whether and how we could expect such ethics to be
applicable to environmental concerns felt by non-Aboriginal society. Then we
will outline some anthropological perspectives on the manner in which Aborig-
inal environmental ethics survive and are practised. Finally, we will explore
why and how the Aboriginal ecological management systems which incorporate
3Pentney calls an adequate collective rights theory of aboriginal rights a “vital missing element”
in current legal analysis. See W. Pentney, “The Rights of the Aboriginal Peoples of Canada and
the Constitution Act, 1982: Part I, The Interpretive Prism of Section 25” (1988) 22 U.B.C. L. Rev.
21 at 23.
4B. Schwartz, First Principles, Second Thoughts: Aboriginal Peoples, Constitutional Reform
and Canadian Statecraft (Montreal: The Institute for Research on Public Policy, 1986) at 39.
51bid.
6This may be changing. See Eastmain Band v. Gilpin, [1987] R.J.Q. 1637 at 1644, [1987] 3
C.N.L.R. 54 (Prov. Ct), where the court refers to the Crees’ “residual sovereignty.”
1991]
ABORIGINAL GROUP RIGHTS
these ethics are protected as part of the Aboriginal group rights entrenched in
s. 35(1). In particular, we will discuss the framework for applying s. 35(1) in R.
v. Sparrow7 in which the Supreme Court of Canada first considered the effect
of s. 35(1).
I. Aboriginal Environmental Ethics
There is increasing interest in Aboriginal environmental perspectives, aptly
summarized by Booth and Jacobs:
Modem residents of North America are facing ecological problems considerably
more grave than those of the European immigrants, and without the option of
immigrating away from those problems. As our awareness of the magnitude and
the implications of these ecological problems has increased, so too has our search
for solutions. Technological solutions are failing us, and there is a growing percep-
tion that it is our very culture and way of living which must change before solu-
tions become possible. In a search for alternative ways of relating to the earth and
her other inhabitants, it seems very natural to turn to cultures which successfully
managed to live with this land, the culture of the Native Americans.8
Care must be taken when attempting to generalize about the belief systems of
hundreds of distinct Aboriginal groups in North America. However, Aboriginal
environmental belief systems share a number of features which can be identified
and considered. These include a lack of division between humans and the rest
of the environment, a spiritual relationship with nature, concern about sustaina-
bility, attention to reciprocity and balance, and the idiom of respect and duty
(rather than rights).
Aboriginal ethics do not share the European tendency to pose “nature” in
distinct opposition to humans. There is no gulf between these two components
of the world. For example,
[i]n Cree, there is no word corresponding to our term ‘nature.’ There is a word
pimaatisiiwin, ‘life,’ which includes human as well as animal ‘persons.’ …
Humans, animals, spirits and some geophysical agents are perceived to have qual-
ities of personhood. … Human persons are not set over and against a material con-
text of inert nature, but rather are one species of person in a network of recipro-
cating persons. 9
Aboriginal belief systems have no counterpart to the admonition in Genesis to
“fill the earth and subdue it, and have dominion over … every living thing.”‘
7[1990] 1 S.C.R. 1075, 70 D.L.R. (4th) 385 [hereinafter Sparrow cited to S.C.R.].
8A.L. Booth & H.M. Jacobs, Environmental Consciousness: Native American Worldviews and
Sustainable Natural Resource Management: An Annotated Bibliography (Chicago: Council of
Planning Librarians, 1988) at 2.
ing” (1989) 75 J. Soc. & Anthro. 193 at 195.
9C. Scott, “Knowledge Construction Among Cree Hunters: Metaphors and Literal Understand-
‘0See L. White, Jr., “The Historic Roots of our Ecologic Crisis” in I. Barbour, ed., Western Man
and Environmental Ethics: Attitudes Toward Nature and Technology (Reading, Mass.: Addison-
McGILL LAW JOURNAL
[Vol. 36
In a world view in which humans are seamlessly related to other animals and
things, such an injunction would seem almost incomprehensible.
Aboriginal environmental values, unlike Western values, ascribe an impor-
tant spiritual role to nature. In addition, since Aboriginal people rarely distin-
guish between their religious and secular life, every aspect of life includes a
spiritual dimension. There is never a sense of disconnectedness from the earth
as its sacredness is lived consciously and completely at all times.”
A long term view of ecological stability, or what might be called a concern
for sustainability, is to native communities an obviously central and necessary
part of any attitude toward their surroundings. Emigration and technological
“fixes” have not been viable alternatives. As one study of the hunting practices
of the Waswanipi Crees of northern Quebec notes:
should this society ever contemplate the bizarre idea of hunting and trapping
everything in the vicinity and then moving on, they would clearly do so at their
peril for the simple reason that the whole of the subarctic is already occupied by
hunting societies.’
2
An Inuit hunter captures the essence of this outlook: “I just get enough for my
own use the coming year. Next year the animals are going to be there anyway,
that’s my bank.”‘ 3
The need for reciprocity and balance is also a common feature of Aborig-
inal environmental ethics:
Reciprocity and balance are required on both sides of the relationship between
humankind and other living beings. For everything taken, something must be
offered in turn, and the permanent loss of something, such as the destruction of a
species, irreparably tore at the balance of the world. … It was vital that humans
strove to stay within a natural balance and did not overbreed or overhunt. 4
Wesley, 1973) 18 at 23-27; J.B. Callicott, “Traditional American Indian and Western European
Attitudes Toward Nature: An Overview” in J.B. Callicott, ed., In Defense of the Land Ethic: Essays
in Environmental Philosophy (Albany: State University of New York Press, 1989) 7.
“Booth & Jacobs, supra, note 8 at 4-5. See also F. Berkes, “Environmental Philosophy of the
Chisasibi Cree People of James Bay” in M.M.R. Freeman & L.N. Carbyn, eds, Traditional Knowl-
edge and Renewable Resource Management in Northern Regions (Edmonton: Boreal Institute for
Northern Studies, University of Alberta, 1988) 7.
12Unpublished study by R. McDonnell cited in P.W. Hutchins, “The Law Applying to the Trap-
ping of Furbearers by Aboriginal Peoples in Canada: A Case of Double Jeopardy” in M. Novak,
et al., eds, Wild Furbearer Management and Conservation in North America (Toronto: Ministry
of Natural Resources, 1987) 31 at 32. See also H.A. Feit, “Waswanipi Cree Management of Land
and Wildlife: Cree Ethno-Ecology Revisited” in B. Cox, ed., Native People, Native Lands: Cana-
dian Indians, Inuit and Mitis (Ottawa: Carleton University Press, 1987) 75.
13H. Brody, Living Arctic: Hunters of the Canadian North (Toronto: Douglas & McIntyre, 1987)
at 78.
14Booth & Jacobs, supra, note 8 at 4.
1991]
ABORIGINAL GROUP RIGHTS
Finally, an Aboriginal’s relationship to others is considered in a context of
respect and duty, rather than in a model of claims and rights:
When the world of social relations transcends those that are maintained among
human beings, this holds implications for the way one sees oneself in relation to
all else. Within this encompassing web of social relations the individual is char-
acterized as the repository of responsibilities rather than as a claimant of rights.
Rights can exist only in the measure to which each person fulfils his responsibil-
ities toward others. That is, rights are an outgrowth of every person’s performing
his obligation in the cosmic order. In such a society there is no concept of inherent
individual claims to inalienable rights.’5
For Aboriginal peoples, the clash of opposing rights misses the subtleties that
the principles of respect and duty bring, whether speaking of humans or ani-
mals. Respect and duty are flexible principles that situate the “right” in a con-
text of a relationship or many relationships, and cannot be abstracted from the
nature of those relationships. As the relationships evolve, so too will the respon-
sibilities. The context of respect and duty will also foster a sense of humility,
rather than assertiveness, in recognition of the fact that the individual occupies
a part of a large and supportive web.
We believe that the principles that characterize Aboriginal environmental
ethics are fundamentally conducive to protection of the environment. It is for
that reason that the central aspect of our argument is that acknowledging and
reinforcing the practice of these Aboriginal environmental ethics by Aboriginal
communities is in itself desirable.
In addition, Aboriginal ethics can educate non-Aboriginal society. Increas-
ingly, non-Aboriginal efforts at systemizing new environmental ethics share the
underlying elements of Aboriginal ethics. These efforts often radically depart
from the traditional bases of moral philosophy. 6 For example, respect and duty
toward all of nature forms the basis of a recent work by Rolston. 7 If non-
Aboriginals are to construct a different Western environmental consciousness,
they must truly learn from and draw upon what Aboriginal people have to
teach.'”
‘5M. Boldt & J.A. Long, “Tribal Philosophies and the Canadian Charter 6f Rights and Free-
doms” in M. Boldt & J.A. Long, eds, The Quest for Justice: Aboriginal Peoples and Aboriginal
Rights (Toronto: University of Toronto Press, 1985) 165 at 166.
16For excellent surveys, see J.B. Callicott, “Introduction: The Real Work” in J.B. Callicott, ed.,
supra, note 10, 1, and R.F. Nash, The Rights of Nature: A History of Environmental Ethics (Lon-
don: University of Wisconsin Press, 1989).
17H. Rolston, III, Environmental Ethics: Duties to and Values in the Natural World (Philadel-
8A.L. Booth & H.M. Jacobs, “Ties That Bind: Native American Beliefs as a Foundation for
1
phia: Temple University Press, 1988).
Environmental Consciousness” (1990) 12 Environmental Ethics 27.
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[Vol. 36
It is not feasible to borrow Aboriginal environmental ethics and graft these
onto non-Aboriginal cultures because Aboriginal cultures are embedded in a
particular context where the impact and meaning of a tradition stems from life-
long conditioning, preparation, and participation. Aboriginal cultures are built
into language, into the way day-to-day life is lived, and it is found within a spe-
cific physical/social context.’9 However, while non-Aboriginals cannot adopt an
Aboriginal world view, they can look to this world view for inspiration, and for
a reminder that positive relationships with the environment can and do exist.
II. Aboriginal Ecological Management Systems
If the Aboriginal environmental ethics discussed above are to protect the
environment and serve as a guide to non-Aboriginals in the way we assert, it is
necessary to show that Aboriginal ecological management systems incorporate
such Aboriginal environmental ethics, and remain viable in Canada.
It is a common assumption in many quarters that local Aboriginal ecolog-
ical management systems either have been destroyed by industrial society, or
will inevitably disappear. To a large extent this assumption is based upon a lack
of information about the way in which these systems have adapted to the dom-
inance of industrial society. There is significant and increasing evidence that
such systems, while often severely stressed, have the ability to survive.2″
What exactly do we mean by an Aboriginal ecological management sys-
tem? To most non-Aboriginals it is “invisible” and unknown. According to Feit:
Self-management in short is the direct exercise of effective managerial and regu-
latory practices with respect to wildlife and land. The legitimacy and authority for
such practices are determined at the local level by reference to community-based
systems of knowledge, values and practice. Furthermore, they are especially
embedded in local practices and knowledge with respect to world view, property
rights, social authority, and the definition of the sacred. 2’
Traditional management systems usually incorporate a collection of unwritten
rules or social norms that govern activities such as hunting, fishing or trapping.22
19lbid. at 42.
20H.A. Feit, “The Future of Hunters Within Nation-States: Anthropology and the James Bay
Cree” in E. Leacock & R. Lee, eds, Politics and History in Band Societies (Cambridge: Cambridge
University Press, 1982) 373 at 373.
21H.A. Feit, “Self-Management and State-Management: Forms of Knowing and Managing
Northern Wildlife” in Freeman & Carbyn, eds, supra, note 11, 72 at 74.
Z2For the best general description, see P.J. Usher, “Indigenous Management Systems and the
Conservation of Wildlife in the Canadian North” (1987) 14 Alternatives 3. See also G. Osherenko,
“Wildlife Management in the North American Arctic: The Case for Co-Management” in Freeman
& Carbyn, eds, supra, note 11, 92 at 93, and F. Berkes & M.T. Farvar, “Introduction and Overview”
in F. Berkes, ed., Common Property Resources: Ecology and Community-Based Sustainable Devel-
opment (London: Bellhaven Press, 1989) 1.
1991]
ABORIGINAL GROUP RIGHTS
933
f
Invariably, these systems also require social institutions for their perpet-
uation.Y3
Nelson has studied the Koyukon Indians of Alaska, and the way environ-
mental ethics are implemented, both personally and through social institutions.
The Koyukon people are strongly influenced to harvest only as much as they can
use and to use everything that they harvest. Among the Koyukon, reverence for
nature, which is strongly manifested in both religion and personality, is unques-
tionably related to conscious limitation of use.24
He notes a “prodigious array of regulations and taboos”‘ applying with respect
to natural entities, such as prohibitions against the killing of animals or plants
and leaving them unused, and the understanding that hunters must go to great
lengths to prevent the escape of wounded game.26
Feit has studied traditional management in the context of the Waswanipi
Cree’ He has observed a stricture amongst the Cree that they must not kill
more than they need, for fun, or for self-aggrandizement, although they are fully
aware of their ability to do so. Bad luck in the hunt is seen as the result of a deci-
sion on the part of the animals that the hunter should not get what he wants, usu-
ally because he has failed to carry out one of his responsibilities.
Feit noted that the Cree also regulate the production, distribution, and har-
vest of animals by rotational hunting – not hunting in a given area for a period
to allow the populations to grow. They also periodically shift their consumption
from moose and beaver, which are most efficiently harvested, to more prolific
but less efficiently harvested sources of food, particularly fish, or if necessary,
to less valued purchased foods.
There are numerous examples of the way in which negative social sanc-
tions, incentives or beliefs affect and control Aboriginal hunting practices. Cree
hunters, for example, believe that excessive killing of geese will result in pov-
erty and the hunter’s death.2” Game, such as beavers, can retaliate against bad
hunting practices by disappearing for a period.29
Positive social practices and incentives similarly exist to govern relations
with animals. These can consist of the ways in which men and women are
raised, remain faithful to the way of life and its principles, and acquire social
23Berkes & Farvar, ibid. at 5.
24R.K. Nelson, “A Conservation Ethic and Environment: The Koyukon of Alaska” in N.M. Wil-
liams & E.S. Hunn, eds, Resource Managers: North American and Australian Hunter-Gatherers
(Boulder: Westview Press, 1982) 211 at 221.
25Ibid. at 219.
2 6Ibid.
27Feit, supra, note 12.
28Supra, note 9 at 204-05.
29Berkes, supra, note 11 at 16.
McGILL LAW JOURNAL
[Vol. 36
recognition and enhanced status within the community. For example, as noted
above, part of the Cree ethic is that everything that is killed must be used, and
that killing for fun or sport is a transgression. Thus, young boys who kill small
animals when they are learning to hunt make a gift of these animals to an old
woman, who prepares them to be consumed by herself, the boy, or the whole
family.30
The “hunting boss” is one example of a specific social institution in the
operation of some Aboriginal management systems. A particular territory may
be recognized as under the general control of a territory leader, who acts as the
custodian and “hunting boss” for that territory. The territory is not “owned” but
is “managed” by the boss. Such a figure adds authority to “taboos,” promotes
wise hunting practices, and makes possible the collection and dissemination of
detailed knowledge about the resource.3′ For example, Cree “talleymen” main-
tain a fairly detailed inventory of the number of beaver lodges within their area
(which could include 50 to 100 lodges), and the size and condition of the pop-
ulation of each lodge to determine the numbers that could be taken without
depleting the resource.32
A crucial element of Aboriginal management systems is their communal
nature.33 The resources, and the accumulated knowledge necessary to manage
them, are shared between family groupings for the benefit of the whole commu-
nity. Management principles balance the needs of particular groups within the
community and the collective good of all. For example, households are often
allowed access to resources beyond the portions of the community’s territories
to which that household possesses a primary right of access. With the permis-
sion of the “boss” of another portion of the territory, they may harvest that por-
tion if they follow the local rules. This provides for orderly redistribution to
hunters of resources within any part of the community’s traditional lands.
A clash between these communal systems and Western systems is evident
with respect to communal resources. The conventional wisdom of Western
resource-managers leads them to believe that where there are locally managed
communal property resources a “tragedy of the commons”‘ situation will occur.
That is, profit maximization and self-interest will overcome self-regulation,
resulting in depletion of the resource. In this view “degradation and destruction
was the inevitable fate of resources which were shared by all and which were
poorly protected from various human impacts. 35
Cree” (1986) Anthropologica (N.S.) 28 at 163.
30Ibid. at 15.
31C. Scott, “Hunting Territories, Hunting Bosses and Communal Production Among James Bay
32Feit, supra, note 21 at 78-79.
33See, e.g., supra, note 31.
34G. Hardin, “The Tragedy of the Commons” (1986) 162 Science 1243.
35F. Berkes & D. Feeny, “Paradigms Lost: Changing Views on the Use of Common Property
Resources” (1990) 17 Alternatives 48 at 48. See, generally, Berkes & Farvar, supra, note 22.
1991]
ABORIGINAL GROUP RIGHTS
The “tragedy” scenario has not been born out in Aboriginal management
systems, largely due to the existence of an environmental ethic, a social system,
and institutions resting on collective “ownership” and self-management princi-
ples. While arrangements vary from group to group, they are based on the prin-
ciple of sustainability and balance between the good of households/families and
the community as a whole in a context of self-regulation and social sanctions.36
Aboriginal ecological management systems are distinct and largely inde-
pendent of the resource regulation systems derived from a modem Western
state. Aboriginal ecological management systems are based on local knowledge
and structures, and derive legitimacy from their traditional origins. As Feit
noted,
Self-management systems do not depend on recognition by any other governmen-
tal or administrative authority for their existence or essential operation. They do
not therefore depend on the delegation of responsibility or authority, nor on the
legal recognition of rights to such practices by the courts, legislation or other legal
instruments of the state; although each of these latter may compliment self-
management and/or enhance the possibilities for the effective practice of self-
management. 37
The tendency of state regulation systems has been to ignore or even destroy
local Aboriginal management systems. Government wildlife managers tend to
assume that Native communities have no self-imposed rules to control human
behaviour and ensure conservation of animals. 38 Usher notes that “at best, nei-
ther [the state nor indigenous self-management] system has held the other in
very high regard, and more usually neither has acknowledged the other as hav-
ing any legitimacy. 39
The separation of government and Aboriginal environmental management
systems seems to be diminishing as governmental, scientific and development-
based national and international organizations are seeking to learn from Aborig-
inal environmental knowledge.4” Increased recognition can be seen in
“co-management,” an institutional arrangement in which government agencies
and those who use the resources enter into an agreement for a specific geo-
graphical area which makes explicit a system of rights and obligations, and
shares decision-making power. Co-management is often offered as a means
36Berkes & Farvar, ibid.
37 Feit, supra, note 21.
3 8Osherenko, supra, note 22 at 93.
39 Usher, supra, note 22 at 3.
40For examples of evolving experience in joint cooperation between non-Aboriginal researchers
and indigenous experts see T.A. Andrews, “Selected Bibliography of Native Resource Manage-
ment Systems and Native Knowledge of the Environment” in Freeman & Carbyn, eds, supra, note
11, 105; M.M.R. Freeman, “Graphs and Gaffs: A Cautionary Tale in the Common-Property
Resources Debate” in Berkes, ed., supra, note 22, 92.
REVUE DE DROIT DE McGILL
[Vol. 36
whereby federal and provincial governments and Aboriginal groups can work
together on conservation.
Recent experiments in co-management provide hopeful but mixed results.
They tend to arise in crisis situations involving a threat to a particular species
or resource. The degree of power accorded to the participating groups varies. In
many cases, Aboriginal participants have advisory capacity only, and the gov-
ernmental agency remains the ultimate authority.4
Feit urges the further development of co-management concepts and prac-
tical structures, but also sees a need to confirm the authority of Aboriginal man-
agement systems through
some form of clear recognition that co-management arrangements themselves
derive from the systems of knowledge and social rights of the groups agreeing to
co-manage with the state, as well as from the legal system of the state.
While a co-management system is likely to be given legal force within the
structures of the state, co-management which is capable of being recognized as
legitimate and effective in the North will in most cases have to be based on and
express forms of pre-existing management.4 2
He emphasizes the need to develop forms of co-management which: “effec-
tively recognize the autonomy of self-managers, and their participation with
equal authority, legal standing, resources and respect.”43
Another means to affirm the authority of Aboriginal management systems
is through some form of legal recognition. Some writers suggest that Aboriginal
harvesting rights are a form of property right in the resource,” and that the legal
concept of profit d prendre comes close to describing Aboriginal harvesting.”
Careful consideration would need to be given to the implications of applying an
approach based on property to the communal aspect of Aboriginal harvesting.
However, the plausibility, utility and disadvantages of such an approach are
beyond the scope of this paper.
Other means are available for providing legal recognition of a group right
to harvest, and protecting Aboriginal management systems. In 1974 the U.S.
Federal District Court in Washington ruled that a treaty which gave an Aborig-
41For experiences with co-management in Canada and Alaska see, Osherenko, supra, note 22;
E. Pinkerton, Co-operative Management of Local Fisheries: New Directions for Improved Man-
agement and Community Development (Vancouver: University of British Columbia Press, 1989).
42Feit, supra, note 21 at 85.
43Ibid.
“We use the term “resource” with some misgivings, because of the implication that the subject
exists for the use of humans. However, there does not seem to be a readily acceptable alternative.
45G. Sutton, Trappers’ Rights (Edmonton: Alberta Central Trappers Association and Native Out-
reach, 1980); Hutchins, supra, note 12; P.J. Usher & N.D. Bankes, Property, the Basis of Inuit
Hunting Rights – A New Approach (Ottawa: Inuit Committee on National Issues, 1986).
1991]
ABORIGINAL GROUP RIGHTS
inal group the right to fish implied a right to fifty percent of the catch, and the
right to an extensive role in managing the harvest. The Court further committed
itself to a lengthy supervisory process to ensure that the Aboriginal right to
manage the harvest was respected.46 Canadian courts have also recognized that
a treaty right to fish gives the Aboriginal group the right to prevent environmen-
tal encroachments which would have the effect of destroying part of the fish
habitat.47 However, the legal nature of a group right to harvest remains largely
unexplored in the Canadian legal context.
In the following sections we will argue that if the existing rights of Abo-
riginal peoples are properly recognized as group rights, substantial reinforce-
ment of Aboriginal ecological management systems will follow.
Im. The Political Background of Aboriginal Group Rights
Canada is a liberal-democratic society, and therefore tends to see the indi-
vidual person, equipped with legally enforceable rights, as the most important
social, political and legal unit. There is a strong and principled resistance to the
recognition of rights that belong to groups.48 In a few cases, certain rights are
accorded to individuals because they belong to a particular group, but there is
great reluctance to accept that any group, as such, has rights apart from those
belonging to the individuals forning it.
The liberal individualist view is the underlying basis of the Constitution.
It is true that certain rights in the Constitution, such as language rights and Abo-
riginal rights, are quite commonly referred to as “group rights.” However, these
references are often used very loosely, or to mean only that members of the
specified groups have special individual rights.
Our argument is that many of the Aboriginal and treaty rights recognized
by s. 35(1) of the Constitution must be seen as group rights in a particular sense:
rights that are independent of the individuals forming the group and that allow
the group to undertake certain actions as a group.
We will begin by reviewing the nature of group rights and several exam-
ples of groups rights in the Canadian Constitution. This is followed by an argu-
ment that the political theory of liberal individualism is not the correct model
46The extensive history of this litigation is the subject of F.G. Cohen, Treaties on Trial: The Con-
tinuing Controversy over Northwest Indian Fishing Rights (Seattle: University of Washington
Press, 1986).
46 (C.A.) [hereinafter Claxton].
47Claxton v. Saanichton Marina Ltd. (1989), 36 B.C.L.R. (2d) 79 at 91-92, [1989] 3 C.N.L.R.
48According to Weaver, “[o]ne of the most pervasive forces underlying the federal government’s
resistance to aboriginal rights demands is its steadfast commitment to liberal-democratic ideology”
(S. Weaver, “Federal Difficulties with Aboriginal Rights” in Boldt & Long, eds, supra, note 15,
139 at 142).
McGILL LAW JOURNAL
[Vol. 36
for Aboriginal rights. In Part IV, a number of legal grounds will be outlined for
the position that s. 35(1) of the Constitution is best interpreted by a group rights
theory. As well, we will flesh out the content of a group right. Finally, we will
highlight some specific applications of a group rights model in the area of Abo-
riginal ecological management systems in reference to the Supreme Court of
Canada’s decision in Sparrow.
A. Group Rights and Individual Rights
In the liberal tradition, the individual is the only entity that has intrinsic
moral value. Consequently, individuals are the only entities who can have
rights. Schwartz states that “[a]n unprovable axiom of my approach is that the
only thing ultimately of moral concern is the conscious state of sentient
beings.”4 9
As a result of this premise, when liberals speak of group rights, they gen-
erally are describing an arrangement which nevertheless is based on individual
rights. Sometimes this merely means that individuals have the right to freely
associate in groups. Alternatively, the description may refer to a person who has
certain individual rights because he or she is a member of a particular group.
Such conceptions of “group” rights may be considered “derivative” since they
describe rights arising from the individual. These schemas “accommodate group
rights by regarding them as perfectly translatable into the harder currency of
individual rights ……..
A useful example of “derivative” group rights exists in the minority lan-
guage rights found in s. 23(1) of the Canadian Charter of Rights and Free-
doms.” This section provides in part that
Citizens of Canada … whose first language … is that of the English or French lin-
guistic minority population of the province in which they reside … have the right
to have their children receive primary and secondary school instruction in that
language.
In a reference to the Manitoba Court of Appeal interpreting this section Mr. Jus-
tice O’Sullivan observed:
As to s. 23 conferring rights on minorities, I think I need do nothing more than
quote from the words of one of the principal framers of the Charter, The Hon. P.E.
Trudeau who … said:
49Schwartz, supra, note 4 at 40.
50R.R. Garet, “Communality and Existence: The Rights of Groups” (1983) 56 S. Cal. L. Rev.
1001 at 1007; F. Svensson, “Liberal Democracy and Group Rights: The Legacy of Individualism
and Its Impact on American Indian Tribes” (1979) 27 Political Studies 421 at 438.
51Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982,
c. 11 [hereinafter Charter].
1991]
ABORIGINAL GROUP RIGHTS
“In my philosophy the community, an institution itself, has no rights.
It has rights by delegation from the individuals. You give equality to
the individuals and you give rights to the individuals. Then they will
organize in societies to make sure those rights are respected….”
The provisions of s. 23, in my opinion, are guarantees given to individuals even
though they contemplate the exercise of the rights in group action.52
It is possible, however, to conceptualize “stronger” forms of group rights,
in which the rights are not merely derivatives of individual rights. In one such
model, the interests to be protected by rights are those of individual humans but
those interests can only be protected by a group in which the individual is a
member, and therefore only that group has legal rights. 3 In another model, the
group itself has intrinsic moral worth and therefore it is appropriate to speak of
the group as having rights.’
There is a serious tension between these stronger formulations of group
rights and mainstream liberal theory. Much group rights theory is probably
incompatible with the core of liberal theory.55 However, we will examine a
number of existing examples of rights in the Canadian constitutional system
which appear to be group rights in the stronger sense, and we will show that a
similar formulation for Aboriginal rights is plausible.
Although probably not directly applicable to the case of Aboriginals, the
notion of a sovereign state is itself one example of group rights in the above
sense. “When the state imposes taxes, breaks up a monopoly, requires attend-
ance at school, or conscripts a person and sends him into battle, it is not exer-
cising rights taken over from individuals, for they never had such rights.”56 The
right to self-determination is another right existing in the state which belongs to
the state as a group, and which cannot be described in individual terms.”
There are two examples within the Canadian constitutional structure of
group rights (other than Aboriginal rights, which we will discuss later). One
52Reference Re Public Schools Act (Man.) (1990), 64 Man. R. (2d) I at 79 [hereinafter Manitoba
Reference]. This section was subsequently addressed in Mahe v. Alberta, [1990] 1 S.C.R. 342 at
362, 364, 365, 369, [1990] 3 W.W.R. 97 without specifically considering whether the rights were
rights of individuals or groups.
53V. Van Dyke, “Collective Entities and Moral Rights: Problems in Liberal-Democratic
54Garet, supra, note 50 at 1001-02; J. Crawford, “The Rights of Peoples: Some Conclusions”
55For a general critique of group rights theory, see M. Tushnet, “Rights: An Essay in Informal
Political Theory” (1989) 17 Pol. & Soc. 403, and M. Tushnet, “Law and Group Rights: Federalism
as a Model” in A.C. Hutchinson & LJ.M. Green, eds, Law and the Community: The End ofIndi-
vidualism? (Toronto: Carswell, 1989) 277.
in J. Crawford, ed., The Rights of Peoples (Ottawa: Clarendon Press, 1988) 159 at 163-66.
Thought” (1982) 44 J. of Politics 21 at 24.
56Supra, note 53 at 24.
571bid. at 25-27.
REVUE DE DROIT DE McGILL
[Vol. 36
such example is the existence of provinces, and the other is the package- of
denominational rights protected in s. 93 of the Constitution Act, 1867.”8
A central reason for the Canadian state being formed into a federal system
rather than a unitary state was to allow special rights for French-speaking Cana-
dians. The provinces were created as holders of these rights, and these rights
took the form of the provincial powers in s. 92 of the Constitution Act, 1867.
These provincial powers are held collectively by the residents of the provinces. 9
The other example of groups rights exists in s. 93 of the Constitution Act,
1867, which protects “any Right or Privilege with respect to Denominational
Schools which any Class of Persons have by Law in the Province at the Union.”
These rights protect the separate school system including the right to a sepa-
rately elected school board and the right to government revenues for those
schools. They are thus rights pertaining to certain institutions rather than indi-
viduals, and indeed are rights which by their nature are not exercisable by indi-
viduals. These denominational group rights came under severe attack in the dec-
ades following 1867, and retained little force after a decision by the Privy
Council in 1928.’ However, the Supreme Court of Canada has recently over-
turned that decision in what one commentator has called “a legal triumph for
constitutionally protected group rights.”6
Thus there are several examples of group rights already existing in the
Canadian constitution. There is no reason the concept cannot be workable in the
Aboriginal context, even if the specific form turns out to be quite different than
that of the existing instances of group rights.
B. Aboriginal Rights as Group Rights
Aboriginal and treaty rights are often viewed as group rights in the weak
sense, meaning special individual rights which are enjoyed by Indian persons
1867].
5830 & 31 Vict., c. 3 (formerly British North America Act, 1867) [hereinafter Constitution Act,
59F.L. Morton, “Group Rights Versus Individual Rights in The Charter: The Special Cases of
Natives and the Quebecois” in N. Neville & A. Karnberg, eds, Minorities and the Canadian State
(Oakville, Ont.: Mosaic Press, 1985) 71 at 71; R.M. Dawson, The Government of Canada, 5th ed.
by N. Ward (Toronto: University of Toronto Press, 1990) at 26.
6Tiny Roman Catholic Separate School Trustees v. R., [1928] A.C. 363, [1928] 2 W.W.R. 641.
6 1Reference re Bill 30, an Act to Amend the Education Act (Ont.), [1987] 1 S.C.R. 1148, 40
D.L.R. (4th) 18. See, G. Bale, “Reference Re Funding For Roman Catholic High Schools – Tiny
Convincingly Overruled But Equality Rights Needlessly Compromised” (1989) 11 Sup. Ct. L. Rev.
399 at 416. Note Bale’s critical analysis of how judges’ religious affiliation had affected their deci-
sions and compare, in the context of Aboriginal group rights, J. O’Reilly, “The Courts and Com-
munity Values: Litigation Involving Native Peoples and Resource Development” (1988) 15 Alter-
natives 40. See generally, J.E. Magnet, “Minority-Language Educational Rights” (1982) 4 Sup. Ct
L. Rev. 195.
1991]
ABORIGINAL GROUP RIGHTS
because they belong to the group identified as Indians. Hunting rights, for exam-
ple, are usually seen as merely the right of an individual hunter to hunt without
some of the restrictions that apply to non-Aboriginal hunters.
We will argue below that many Aboriginal rights, such as hunting rights,
in fact are group rights in the strong sense. There is already some vague and
general recognition of the true group nature of Aboriginal rights. For example,
Mr. Justice O’Sullivan noted in the Manitoba Reference case that “[a]lthough
the Charter did confer group rights on Indians and Mdtis and on denominational
groups, there is no warrant for holding that the Charter otherwise conferred
group rights on minorities.”62
We will also argue that liberal individualist premises are not the appropri-
ate principles for interpreting Aboriginal and treaty rights. This fundamental
point will be enlarged first in terms of political theory, and then in Part IV based
on legal grounds.
1.
Aboriginals and Liberal Individualism
Any political theory, such as the political theory of liberal individualism,
serves a number of functions. It serves an explanatory and organizing purpose
by attempting to provide a coherent and satisfying explanation for life experi-
ences. In addition, it provides a guide for action, a system of ideals and goals
that helps give direction to individual and group endeavors. The better suited a
system is to fulfil these functions, the more likely it is to be adopted and sus-
tained over time.
In that context, it is crucial to realize that liberal individualism has never
been and is not a part of Aboriginal culture. The Aboriginal political tradition
is one centred on communalism in which individuals do not have rights that can
be used as “trumps.” The environmental ethics reviewed earlier similarly do not
encourage individuals to think of themselves as having “claims” against other
persons and nature. An Aboriginal person’s individual self-interest is not
assumed to be distinguishable from the good of the tribe, or indeed of the
environment.
Aboriginal communities did not experience oppression on the scale seen in
European history, an oppression which gave such impetus to the development
of individual rights. Aboriginal peoples never experienced feudalism or the tyr-
anny of absolute personal authority.63 Respect for individuals was maintained,
62Manitoba Reference, supra, note 52 at 79. See also, generally, the dissenting judgment of
O’Sullivan J.A. in Manitoba Metis Federation Inc. v. A.G. Canada, [1988] 3 C.N.L.R. 39 (Man.
C.A.).63M. Boldt & J.A. Long, “Tribal Traditions and European-Western Political Ideologies: The
Dilemma of Canada’s Native Indians” in Boldt & Long, eds, supra, note 15, 333 at 336; Svensson,
supra, note 50 at 424.
McGILL LAW JOURNAL
[Vol. 36
but through an egalitarianism not based on rights, and through the systematic
application of the ideal of consensus.’
The question therefore is whether native communities will adopt a liberal
individualist political vision. Will they be incorporated into a liberal individu-
alist culture? What are the ways in which this could happen? What happens if
Aboriginal communities find the liberal individualist vision unacceptable? 65
Obviously, voluntary acceptance, after adequate consideration, is the most
defensible manner for the adoption of a political theory (liberal individualist or
otherwise).66
This question leads to a crucial distinction between Aboriginal peoples and
“minorities.” The existence of such a distinction is a hotly debated issue. Most
theorists who consider the possibility of group rights treat the issue as a question
of whether “minorities” should have such rights, frequently using Aboriginal
peoples as the paradigmatic example of a minority. 7 In so doing, they ignore a
fundamental distinction, which, generally speaking, that non-Aboriginal com-
munities have consented to a liberal individualist political model or ideal, while
Aboriginal groups have not.
Most minority groups in Canada are the result of immigration, itself a form
of consent to the liberal individualist political structure. For many immigrants,
such a political system was a major reason for entering Canadian society. For
other immigrants, it was an acceptable condition of pursuing economic oppor-
tunity on this continent. Of course any minority group (or individual) is free to
reject liberal individualism and attempt to convince others to change the polit-
ical system, or to emigrate, but such a group or individual cannot claim that they
have been politically compelled to live according to liberal individualist
premises.
Aboriginal communities, on the other hand, have not in any comparable
way consented to be part of a liberal individualist social structure. It might be
argued that treaties signed between the Crown and various Aboriginal groups
comprise such consent. However, the factual circumstances surrounding treaties
simply do not allow them to be held up as some sort of consent to the liberal
individualist ground-rules of European society. While the wording of many trea-
ties refers to the Indians as “His Majesty’s subjects,” Aboriginals often saw this
64Svensson, ibid. at 432; Boldt & Long, ibid. at 336-39.
65N. Glazer, “Individual Rights Against Group Rights” in E. Kamenka & A. Tay, eds, Human
Rights: Ideas and Ideologies (London: E. Arnold, 1978) 87.
“It is important to remember throughout, that, unlike in a situation of apartheid, Aboriginal per-
sons are at any time free to reject or abandon Aboriginal culture and assimilate into liberal indi-
vidualist Canadian society.
67See, e.g., Van Dyke, supra, note 53 at 28-30; Svensson, supra, note 50 at 438; NV. Kymlicka,
“Liberalism, Individualism, and Minority Rights,” in Hutchinson & Green, eds, supra, note 55,
181.
1991]
ABORIGINAL GROUP RIGHTS
as of little practical significance. The facts surrounding various treaties differ,
but there are numerous examples of Aboriginals insisting on preservation of the
central aspects of their way of life. For example, on the occasion of one band’s
signing of Treaty 9,68 as recorded by the official report signed by the Treaty
Commissioners,
Missabay, the recognized chief of the band, then spoke, expressing the fears of the
Indians that, if they signed the treaty, they would be compelled to reside upon the
reserve set apart for them, and would be deprived of the fishing and hunting priv-
ileges which they now enjoy.
On being informed that their fears were groundless, as their present manner
of making their livelihood would in no way be interfered with, the Indians talked
the matter among themselves …. The next morning … the chief spoke, stating that
… they were prepared to sign, as they believed that nothing but good was
intended. 69
The Supreme Court of Canada has recently reviewed the context in which
certain treaties were made and commented on the expectations of the parties:
An examination of the historical background leading to the negotiations for Treaty
No. 8 and the other numbered treaties leads inevitably to the conclusion that the
hunting rights reserved by the Treaty included hunting for commercial purposes.
The Indians wished to protect the hunting rights which they possessed before the
Treaty came into effect and the Federal Government wished to protect the native
economy which was based upon those hunting rights. It can be seen that the Indi-
ans ceded title to the Treaty 8 lands on the condition that they could reserve exclu-
sively to themselves “their usual vocations of hunting, trapping and fishing
throughout the tracts surrendered.” 70
The treaties therefore cannot be seen as some form of consent to a new, individ-
ualist way of life. Indeed, opting for an individualist approach was never an
issue in the negotiations.
The distinction between Aboriginal and non-Aboriginal communities,
based on a conception of consent or acceptance, means that it is plausible to
allow group rights for Aboriginals bui not for other non-Aboriginal groups. It
is not necessary to develop theories about how, “within liberalism,” it is possible
to identify and distinguish groups that are deserving of group rights from groups
that are not so deserving. Recognition of Aboriginal group rights does not nec-
essarily mean that “a Pandora’s box has been opened from which all sorts of
68The James Bay Treaty: Treaty No. 9 (Ottawa: Government Printing Bureau, 1906).
691bid. at 5.
70R. v. Horseman, [1990] 1 S.C.R. 901 at 928, [1990] 3 C.N.L.R. 95 at 100. The Court went
on to find that treaty rights had subsequently been unilaterally abridged by the federal government
in 1930. See also R. Price, ed., The Spirit of the Alberta Indian Treaties (Toronto: Butterworth,
1979); R. Fumoleau, As Long As This Land Shall Last: A History of Treaty 8 and Treaty 11,
1870-1939 (Toronto: McClelland and Stewart, 1975).
REVUE DE DROIT DE McGILL
[Vol. 36
groupings might spring, demanding rights.”‘” On the other hand, the failure to
recognize that Aboriginals are in a unique position distinct from “minorities”
may have that result.
It is of course possible to think that Aboriginal groups can come to adopt
liberal individualism by compulsion rather than by voluntary acceptance, or
through some combination of the two. Much of historical Canadian Indian pol-
icy was based on such an assumption. However, a judicial interpretation of s.
35(1) of the Constitution using liberal individualist premises, when such prem-
ises have not been accepted by Aboriginals, would also amount to compulsion.
In such a case, the relevant decisions would be in the hands of non-Aboriginal
judges. Such court decisions, for example decisions involving hunting and fish-
ing rights, would affect the basic ground rules for the everyday life of many
Aboriginal groups, and would be implemented with force, if necessary.
There are those who maintain that it is legitimate for the Canadian state to
impose liberal individualist premises upon Aboriginals.72 There obviously
would be some irony in the imposition of “freedom of choice.” However, such
a position to some degree inevitably follows from the emphasis on individual
freedom, above all.
One also must ask whether the imposition of liberal individualism through
s. 35(1) would be successful. Certainly, proponents of that position might rea-
sonably assume that such imposition could be maintained for a lengthy period.
However, a review of the historical experience with such policies does not hold
much hope for its success.
A historical review of past attempts to assimilate Aboriginals serves two
purposes. First, it clearly establishes that Aboriginals did not live according to
liberal individualist assumptions. Secondly, it demonstrates the extreme diffi-
culty in imposing such a world view, and suggests the futility, or at least the
riskiness, of such an attempt.
A clear cycle occurred in Canadian history, stretching over a period of a
hundred years, in which state coercion was consistently applied in an attempt
to incorporate Aboriginals into a liberal society. The duration and intensity of
the compulsion may well have exceeded the attempt to impose communism on
Eastem Europe. Nevertheless, when the question was finally explicitly put to
Aboriginal societies in 1969, the rejection of liberal individualism was unequiv-
ocal.7″ The 1982 constitutional amendment was the first step down a different
criteria for identifying groups deserving of rights as a group.
71Van Dyke, supra, note 53 at 31-32. Van Dyke tries to avoid this Pandora’s box by providing
72Schwartz, supra, note 4 at 40.
73 See, generally, S.M. Weaver, Making Canadian Indian Policy: The Hidden Agenda 1968-1970
(Toronto: University of Toronto Press, 1981).
1991]
ABORIGINAL GROUP RIGHTS
road. Although the s. 15 equality provisions of the proposed constitution guar-
anteed them freedom from discrimination as individuals, Aboriginal groups
fought for and achieved further recognition of their rights as “peoples.”
2.
The Attempted Imposition of Liberal Individualism
The attempted imposition of liberal individualism onto Aboriginal peoples
was part of an explicit, comprehensive government policy in place as early as
1850. It was centrally administered in an active and determined manner, and
backed by legal sanctions. The policy had a number of aspects. The approach
was gradualist, and claimed to protect Indians from white exploitation while it
took effect, but it was never doubted that the ultimate goal was assimilation.
Education was one of the elements of the policy, used to wean younger individ-
uals away from their culture. Central social features of Aboriginal cultures were
prohibited. Incentives were put in place to induce potential leaders to abandon
Aboriginal culture. Meanwhile, political representation of traditional viewpoints
was prevented and prohibited, as was the use of lawyers to directly enforce such
legal rights as Aboriginal peoples possessed.
The assimilationism of Indian policy was explicit throughout. Indian Com-
missioner Hayter Reed reported in 1889 that, “[tihe policy of destroying the
tribal or communist system is assailed in every possible way and every effort
made to implant a spirit of individual responsibility, instead.”’74
Duncan Campbell Scott, who negotiated a number of treaties on behalf of
the federal government, and who for decades was the leading architect of Cana-
dian Indian policy (including the years 1913 to 1932 when he was Deputy
Superintendent of Indian Affairs) wrote in 1914 that:
[tihe happiest future for the Indian race is absorption into the general population,
and this is the object of policy of our government. The great forces of intermar-
riage and education will finally overcome the lingering traces of native custom and
tradition.75
In 1920, Scott addressed a parliamentary committee regarding proposed legis-
lation which would allow him unilaterally to strip an Indian of Indian status:
I want to get rid of the Indian problem. I do not think as a matter of fact, that this
country ought to continuously protect a class of people who are able to stand
alone. That is my whole point … Our object is to continue until there is not a single
Indian in Canada that has not been absorbed into the body politic, and there is no
Indian question, and no Indian Department, and that is the whole object of this
Bill.
76
Treaties & Historical Research Center, Indian & Northern Affairs, 1978) at 89.
74J. Leslie & R. Maguire, eds, The Historical Development of the Indian Act, 2d ed. (Ottawa:
75E.B. Titley, A Narrow Vision: Duncan Campbell Scott and the Administration of Indian Affairs
76Leslie & Maguire, supra, note 74 at 114.
in Canada (Vancouver: University of British Columbia Press, 1986) at 34.
McGILL LAW JOURNAL
[Vol. 36
Education was a major tool in this program. Indian Commissioner Hayter
Reed, in implementing the plans for residential schools, instructed in 1889 that:
every effort should be directed against anything calculated to keep fresh in the
memories of children habits and associations which it is one of the main objects
of industrial institutions [residential schools] to obliterate. 77
In 1894 regulations were passed to compel Indian attendance at school.78 Res-
idential schools were favoured because, as Deputy Superintendent Frank Pedley
observed in 1903, they secured “the removal of the pupils from the retrogressive
influence of home life.”’79
Important Aboriginal cultural practices were prohibited as part of the over-
all program of assimilation. In 1884, the Indian Act8” was amended to make the
potlatch and certain dances subject to a prison sentence. Potlatches were com-
munity gatherings in which a host distributed gifts, often in very substantial
quantities, with elaborate ritual and ceremony. Missionaries saw them as pagan
and immoral occasions. However, another important factor in their prohibition
was that “the Victorian idea of progress, which encouraged the individual accu-
mulation of material goods, was the direct antithesis of the values implicit in the
potlatch.”‘” On the prairies, traditional dance festivals were seen as incompat-
ible with farming because they took time away from the harvest. To discourage
participation in these festivals, Indians were prevented from leaving their
reserves unless they received a special pass from the Indian agent.”2
Another part of the overall strategy was to induce leading Indian individ-
uals to abandon their culture. This occurred mainly through “enfranchisement,”
in which an Indian relinquished Indian status and became a citizen. 3 As early
as 1857, the Act for the Gradual Civilization of the Indian Tribes in the Can-
adas 4 specified that an adult male Indian who was of good character and fluent
in English or French would be eligible for enfranchisement, and as an induce-
ment, could be offered up to fifty acres of the Band’s reserve land in fee simple
and a share of band funds.8 5 Enfranchisement of an Aboriginal against his or her
will was authorized by legislation for the periods 1920-1922 and 1933-1951.86
77TifItley, supra, note 75 at 78.
78Leslie & Maguire, supra, note 74 at 97.
79Tftley, supra, note 75 at 76. See generally, C. Haig-Brown, Resistance and Renewal: Surviving
the Indian Residential School (Vancouver: Tillacum Library, 1988).
80R.S.C. 1985, c. I-5 [hereinafter Indian Act], previously R.S.C. 1952, c. 149.
81 Titley, supra, note 75 at 163.
821bid. at 165.
83S. Imai & K. Laird, “The Indian Status Question: A Problem of Definitions” (1982) Can. Legal
Aid Bulletin 113 at 115.
84S.C. 1857, c. 26, ss I, VII, X.
85Titley, supra, note 75 at 4.
86Leslie & Maguire, supra, note 74 at 115, 124, 151.
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ABORIGINAL GROUP RIGHTS
When the legislation for forcible enfranchisement was introduced, Scott wrote
that the purpose was,
that [Indians] may eventually be merged in the general body of citizenship. If this
in any way conflicts with the aspirations of Indians whose faces are set against
ultimate destiny, it can only be regretted.87
While this massive assimilation effort was being implemented, Indians
were denied any method by which they could use the political process to resist.
Indians were not allowed to vote in federal elections until 1960.88 More impor-
tantly, the formation of Indian associations for political purposes was stifled, by
means including the passage of legislation for that very purpose.
The official response to efforts by Indian activist F.O. Loft is an example.
Loft’s political efforts were an important early challenge to official policy. Loft
began organizing the “League of Indians of Canada” in 1918 as a national
Indian political body. Scott soon began using his staff to spy on and discredit
Loft, and instigated a police investigation with the intention of finding some
pretence for the laying of criminal charges. When Loft began having unprece-
dented political success, Scott in 1920 initiated the process to have Loft enfran-
chised against his will. The process was never completed, due to changes in the
legislation. 9
Similarly, when the tribes of the Iroquois Confederacy in the Great Lakes
area, known collectively as the Six Nations, carried out a sustained and effective
campaign in the 1920’s for recognition of the sovereignty they had never form-
ally relinquished, including a high profile appeal to the League of Nations
which severely embarrassed Canada,9 Scott’s response was to obtain an Order-
in-Council unilaterally abolishing the traditional hereditary council and impos-
ing an elected council.9″ The resulting elections were boycotted by a majority
of the constituents, resulting in a compliant council, whose meetings were pre-
sided over by the local Indian superintendent.92
In 1914, the Allied Tribes of British Columbia was formed as an organi-
zation of coastal and interior Indians primarily to advance the land claims of
British Columbia Indians. The organization began a highly effective lobbying
effort. Eventually, a joint committee of the Senate and House of Commons was
created to investigate the claims. However, the committee’s report concluded
that the entire issue of the land claims was attributable to the “mischievous” agi-
87Letter From Scott to David S. Hill (11 June 1921) as cited in Titley, supra, note 75 at 116.
88 Canada Elections Act, S.C. 1960, c. 39, s. 14. Compare Canada Elections Act, R.S.C. 1952,
c. 23, ss 14(2)(e) & 14(4).
89Supra, note 75 at 105.
9See, ibid., c. 7.
9tlbid. at 126.
921bid.
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tation by “designing white men” such as the legal counsel for the Indians.93 The
result was the adoption of s. 141 of the Indian Act, which prohibited the solic-
itation or collection of funds from Indians in order to pursue claims on their
behalf, a prohibition which was in effect from 1927 to 1951. 9’
While being denied input through the political process, Indians were also
prevented from litigating, or even investigating their legal rights. On one occa-
sion Scott instructed his staff to investigate lawyers hired by the Six Nations and
stated that “[w]hat I want to do is to squelch these gentlemen at the start.” 95 He
also sought to have another lawyer advising the Six Nations deported.96 On
occasion, the government refused to allow Bands to use Band funds to hire law-
yers. 97
This combination of educational, cultural, political and legal measures rep-
resented a textbook example of imposition of the values embodied in the polit-
ical theory of liberal individualism. There were almost no limits on the mea-
sures which were available to ensure that the dominant ideology was accepted.
Success ought to have been assured. However, that was not to be.
3.
The Rejection of Liberal Individualism
In 1969, the Liberal government of Prime Minister Trudeau began a major
revision of Indian policy, which laid out the full liberal individualist pro-
gramme, while at the same time creating a consultation process so that the
Indian community had the opportunity to respond. The Statement of the Govern-
ment of Canada on Indian Policy, 1969,98 known as the White Paper, asserted
that “[t]his Government believes in equality. It believes that all men and women
have equal rights.” It further stated that “the anomaly of treaties between groups
within society and the government of that society will require that these treaties
be reviewed to see how they can be equitably ended.” Aboriginal land title was
rejected as a basis for claims. 9 In defending the White Paper, Prime Minister
Trudeau stated that “the time is now to decide whether the Indians will be a race
apart in Canada or whether it [sic] will be Canadians of full status.”‘ 0
931bid. at 156.
941bid. at 157.
9 5Ibid. at 117.
961bid. at 130.
971bid. at 96 and see Chisholm v. R., [1948] 3 D.L.R. 797, [1948] Ex. C.R. 370.
98Department of Indian Affairs & Northern Development, Statement of the Government of Can-
ada on Indian Policy, 1969 (Ottawa: Queen’s Printer, 1969).
99Weaver, supra, note 73 at 167.
“The speech is reproduced in P.A. Cumming & N.H. Mickenberg, eds, Native Rights in Can-
ada (Toronto: Indian-Eskimo Association of Canada in Association with General Publishing, 1972)
at 331.
1991]
ABORIGINAL GROUP RIGHTS
The White Paper was strongly rejected by Indian leaders. An important
cause for complaint was that the radical nature of the White Paper came as a sur-
prise and did not reflect the consultation process. However, the substance of the
White Paper was also clearly unacceptable. The National Indian Brotherhood,
the major national Indian organization, declared that the White Paper would
lead to “the destruction of a Nation of People by legislation and cultural gen-
ocide.”” According to Weaver,
[t]he White Paper became the single most powerful catalyst of the Indian nation-
alist movement, launching it into a determined force for nativism –
a reaffirma-
tion of a unique cultural heritage and identity. Ironically, the White Paper had pre-
cipitated ‘new problems’ because it gave Indians cause to organize against the
government and reassert their separateness, precisely the results Davey [Trudeau’s
adviser] had tried to avoid. 2
Not long thereafter, Indian leader George Manuel felt moved to announce that
[a]t this point in our struggle for survival, the Indian peoples of North America are
entitled to declare a victory. We have survived. 0 3
When Trudeau’s government initiated a new constitutional amendment
process in 1980, the native communities began organizing to obtain separate
constitutional recognition. Their goal was clearly to ensure group rights. The
submissions of all three national Aboriginal organizations to the Special Joint
Committee studying constitutional amendment included a proposed section
which stated that “[W]ithin the Canadian federation, the Aboriginal peoples of
Canada shall have the right to self-determination” and which committed all lev-
els of government to negotiate constitutional rights in a number of fields “so as
to ensure the distinct cultural, economic and linguistic identities of the Aborig-
inal peoples of Canada.”‘0 4 Thus, despite a century of subjection to liberal indi-
vidualist policies, Aboriginal groups remained determined to find an alternative
solution. 5
What can be concluded from this history? A legal interpretation of s. 35(1)
based on liberal individualist premises conflicts with existing Aboriginal reali-
101Weaver, supra, note 73 at 174.
’02Ibid. at 171.
103Haig-Brown, supra, note 79 at 132.
104D.E. Sanders, “Aboriginal Peoples and the Constitution” (1981) 19 Alta. L. Rev. 410 at 422.
The three organizations were the National Indian Brotherhood, the Native Council of Canada, and
the Inuit Tapirisat.
’05However, according to a former assistant deputy minister of Indian Affairs and Northern
Development writing in 1984, “the Canadian government is still deliberately and systematically
committed to implementing its 1969 White Paper proposals” (D. Nicholson, “Indian Government
in Federal Policy: An Insider’s Views” in L. Little Bear, M. Boldt & A. Long, eds, Pathways to
Self-Determination: Canadian Indians and the Canadian State (Toronto: University of Toronto
Press, 1984) 59 at 60).
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ties. It is doubtful whether such an interpretation, when implemented as law,
will be capable of responding to social needs in the long run.
IV. Legal Recognition of Aboriginal Group Rights in S. 35(1)
A. The Legal Basis for Aboriginal Group Rights
There are a number of legal grounds for concluding that the most accurate
interpretation of the s. 35(1) constitutional affirmation of Aboriginal and treaty
rights is anchored in group rights. We will argue that the prevailing statutory
structure governing such rights, the legal concepts of Aboriginal rights recog-
nized by the courts, and the text of s. 35(1) provide such grounds.
1.
The Existing Legislative Structures
An examination of the legal structure applied to Indian peoples confirms
that their rights have been recognized as group rights.The Royal Proclamation
of 1763,” while not legislation, has been recognized as having the force of leg-
islation and represents one of the first bridges between the Aboriginal and
English legal systems. The Royal Proclamation recognized certain lands as
Indian territories and provided that lands in those territories could only be pur-
chased from Indians consenting as a group “at some public Meeting or Assem-
bly of the said Indians.”‘ “c7
The system created by the Indian Act, which was imposed even in the
absence of a treaty, is based in part on the group nature of rights held by Abo-
riginals. The system established for reserves is an example. The Indian Act pro-
vides in s. 2(1) that a reserve is “a tract of land, the legal title to which is vested
in Her Majesty, that has been set apart by Her Majesty for the use and benefit
of a band.” A “band” is (in part) defined as “a body of Indians. …..
An individual member of a Band derives very few individual rights from
the reserve. He or she does not have, as a matter of right, the option to reside
on the reserve unless the Band Council specifically grants that right. In fact, the
individual can be barred from entering the reserve by the Council.’ Further-
more, since electoral status depends on residence on the reserve (s. 77) the indi-
vidual Band member also is not guaranteed the right to vote in elections of the
Band’s chief and council. Similarly, a non-resident is not entitled to vote on
whether some or all of the reserve should be surrendered to the Crown (s. 39).
Thus, even important individual political rights with respect to the reserve are
subordinate to the collective will. Such a structure cannot easily be explained
16Reprinted in R.S.C. 1985, App. II, No I [hereinafter Royal Proclamation].
01Ibid.
108Joe et al. v. Findlay et al., [1981] 3 W.W.R. 60, 122 D.L.R. (3d) 377 (C.A.).
1991]
ABORIGINAL GROUP RIGHTS
by a theory of individual rights, or of group rights seen as derivative of individ-
ual rights.
2.
The Prevailing Legal Concepts
There is comparatively little discussion in decided cases of the group
nature of Aboriginal and treaty rights. One important factor for such lack of dis-
cussion, at least in the area of hunting, fishing and trapping rights, is that for
many decades the issues have been litigated as a result of charges laid against
particular individuals. While the result was that issues regarding group rights
were not brought into focus, the cases do lend support to the claim that Aborig-
inal and treaty rights include rights of the group.
The group nature of treaty rights was an issue in R. v. Pawis,1 an action
brought by a number of individual Indians to enforce a treaty. The issue of
whether an individual could take action on the treaty was raised. The court con-
cluded that:
Although each individual Ojibway Indian was to benefit from the Treaty, it seems
to me that the language used therein precludes the idea that each individual was
a party to the contract and had therefore the status to sue personally and individ-
ually for an alleged breach thereof. Since the Treaty was negotiated and entered
into with the Ojibway Indians taken as a group, it seems to me that an action based
on the Treaty, alleging breach of the promise subscribed therein toward the group,
could only be instituted by the contracting party itself, that is to say, the group.
The manner in which the concept of Aboriginal title became legally recog-
nized in Canada is in itself evidence of the group nature of the rights. Mr. Justice
Judson stated in the groundbreaking Canadian case, Calder v. A.G. British
Columbia:
Although I think it is clear that Indian title in British Columbia cannot owe its ori-
gin to the Proclamation of 1763, the fact is that when the settlers came, the Indians
were there, organized in societies and occupying the land as their forefathers had
done for centuries. This is what Indian title means …. 1
Clearly, an important factor in the court’s mind for recognizing Aboriginal
rights was that Aboriginal peoples were living in “organized … societies…” 2
109(1979), [1980] 2 F.C. 18, 102 D.L.R. (3d) 602 (T.D.).
“0bid. at 30; But see the remarks of Mahoney J. in R. v. Blackfoot Band of Indians, [1982] 4
W.W.R. 230 at 238,3 C.N.L.R. 53 (F.C.T.D.) [hereinafter Blackfoot Band]. However, the sole issue
in Blackfoot Band was whether a treaty benefit should be distributed per capita, or per stirpes. In
fact, either mode of distribution would have been consistent with a group rights theory of the treaty.
See also G.S. Lester, “Do Treaty Indians Have a Corporate Personality? A Note on the Pawis,
Blackfoot, and Bear Island Cases” [1990] 1 C.N.L.R. 1. Lester argues that a treaty has the effect
of incorporating the Aboriginal group by Royal Prerogative.
“‘[1973] S.C.R. 313 at 328, 34 D.L.R. (3d) 145 [hereinafter cited to S.C.R.].
2Ibid.
1
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One would expect that rights recognized because Aboriginals were “organized
in societies” would be primarily group rights rather than individual rights. In
Sparrow the Supreme Court has recognized this in a general way, observing that
“[flishing rights are not traditional property rights. They are rights held by a col-
lective and are in keeping with the culture and existence of that group., 3
3.
The Text of S. 35(1)
The rights recognized in s. 35(1) are referred to as rights of “peoples.” The
word “peoples” is used in the Constitution Act, 1982 only with respect to Abo-
riginal peoples. All other rights are variously ascribed to “everyone,”‘” 4 “every
citizen,””.5 “any person,””.6 “every individual,””.7 “any member of the public”” 8
and “citizens of Canada.”.. 9 Is the term “peoples” of legal significance?
It could be argued that the term does not necessarily have any special sig-
nificance and can be given an individualist interpretation, equivalent to “Abo-
riginal persons,” in line with other references in the Constitution. This objection
ultimately is not convincing. The very uniqueness in the Constitution of the
term “peoples,” and the fact that it is used repeatedly but only with respect to
Aboriginals, suggests a special meaning. 20 The word “peoples” itself suggests
a group. S. 35(2) states that “aboriginal peoples of Canada includes the Indian,
Inuit and Metis peoples of Canada,” a rather bizarre wording if individual per-
sons was the intended meaning.
It could also be argued that the reference to “persons” in s. 35(4) demon-
strates that the rights referred to in s. 35(1) are those of individuals.12 ‘ However,
s. 35(4) is clearly intended as a qualification of s. 35(1). Had “persons” been
intended, it surely would have been employed in the primary wording of s.
35(1). Furthermore, as noted earlier, it is probably the case that some Aboriginal
rights are individual rights, and this subsection simply means that such individ-
ual Aboriginal rights are guaranteed equally, while Aboriginal group rights must
be administered impartially as between genders.
The term “peoples” occurs nowhere else in Canadian law, and there is
therefore little domestic assistance in fleshing out the concept. However, the
” 3Supra, note 7 at 182.
“4E.g., Charter, ss 2, 11 & 12.
“‘E.g., ibid., ss 3 & 6.
” 6E.g., ibid., s. 11.
‘ 7E.g., ibid., s. 15.
“‘E.g., ibid., s. 20.
” 9E.g., ibid., s. 23.
120The term “peoples” is also applied to Aboriginals in ss 25 and 37.1(2) of the Constitution.
121S. 35(4) states that “[n]otwithstanding any other provision of this Act, the aboriginal and
treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.”
1991]
ABORIGINAL GROUP RIGHTS
term as a legal concept is commonly used in international law and its meaning
in that context is relevant to the interpretation of s. 35(1) as a group right.
This reference to international law may be met with certain objections. It
could be argued that reference to international law is precluded by the word
“existing” in s. 35(1) since that word would prevent any reference to interna-
tional law which would add to existing Aboriginal and treaty rights. However,
as argued by McNeil and Slattery, the fact that a right has not been specifically
recognized does not mean that it did not previously exist. Furthermore, the word
“existing” should not be interpreted to mean that the evolution of an existing
right is arrested.’
Secondly, it could be objected that international law is simply not relevant
since it is not clear, as a matter of international law, that Aboriginals have been
recognized as “peoples.””lu However, it does not follow that the concepts or gen-
eral obligations of international law relating to “peoples” are irrelevant. In 1976,
Canada ratified the International Covenant on Civil and Political Rights 24 and
the International Covenant on Economic, Social and Cultural Rights,2 both of
which provide specific rights to “peoples.”‘2 6 These Covenants are relevant as
aids to interpreting domestic law.
As a general rule, international law obligations such as those of the Cov-
enants do not have the force of law within Canada unless they are implemented
by domestic legislation. 7 Consideration is therefore required as to whether s.
35(1) has the effect of implementing the Covenants so as to make those conven-
tions part of the law of the land. There are good reasons to think that s. 35(1)
has that effect. The drafters of s. 35(1), who surely were aware of Canada’s obli-
gations under the International Covenants, likely departed from the more indi-
vidualistic words used elsewhere in the Act for that reason.
122K. McNeil, “The Constitutional Rights of the Aboriginal Peoples of Canada” (1982) 4 Sup.
Ct L. Rev. 255 at 259; B. Slattery, “The Hidden Constitution: Aboriginal Rights In Canada” (1984)
32 Am. J. of Comp. Law 361 at 378. In Sparrow, supra, note 7 at 1091-94, the Supreme Court
rejected the argument that existing rights had been frozen according to the regulations in force in
1982 and stated, “[e]xisting suggests that those rights are affirmed in a contemporary form rather
than in their primieval simplicity and rigour.”
123R.L. Barsh, “Indigenous Peoples: An Emerging Object of International Law” (1986) 80 Am.
J. Int. L. 369; see also R.L. Barsh, “Indigenous North America and Contemporary International
Law” (1983) 62 Ore. L. Rev. 73 at 80.
12419 December 1966,999 U.N.T.S. 171, No. 14668, Annex to GA Res. 2200A, 21 U.N. GAOR,
Supp. No. 16, p. 49, U.N. Doc. A/6316 (1966).
12516 December 1966, 993 U.N.T.S. 3, No. 14531, Annex to GA Res. 2200A, 21 U.N. GAOR,
Supp. No. 16, p. 52, U.N. Doc. A/6316 (1966).
126M. Cohen & A.F. Bayefsky, “The Canadian Charter of Rights and Freedoms and Public Inter-
national Law” (1983) 61 Can. Bar Rev. 265 at 285; Y Dinstein, “Collective Human Rights of Peo-
ples and Minorities” (1976) 25 Int. & Comp. L.Q. 102 at 106.
127Cohen & Bayefsky, ibid. at 294.
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However, even assuming that s. 35(1) does not have the effect of imple-
menting the Covenants, and the Covenants are thus not formally part of internal
Canadian law, a rule of construction of statutes which states that Parliament and
the legislatures are presumed not to intend to act in violation of Canada’s inter-
national legal obligations is potentially applicable.’28 An interpretation of s.
35(1) which is consistent with the international rights of “peoples” would thus
be superior to one which was not. 29
If international law is relevant, what does it tell us about the rights of “peo-
ples?” The first and still the clearest right of peoples in international law, as
stated in both International Covenants, is that “[a]ll peoples have the right to
self-determination.”‘ 30 However, the actual meaning of the right to self-
determination in international law is highly contentious.’ Some assert that the
right necessarily includes the right to form a sovereign nation, if desired. 32 Oth-
ers argue for a much more limited content. For example, at a recent seminar
organized by the United Nations Working Group on Indigenous Populations,
representatives of the Canadian government argued that self-determination, in
an external sovereignty sense, does not apply in international law to enclave
populations within non-colonial states, but agreed that “practical forms of self-
government within the framework of the state” are necessary and possible.’33
It is beyond the scope of this paper to explore the specific content of the
right to self-determination, but it can hardly be denied that it is a group right.
Indeed, the United Nations Human Rights Committee has rejected applications
brought by individuals claiming a violation of self-determination.”
In summary, a consideration of the text of s. 35(1) suggests that the “abo-
riginal and treaty rights” protected therein are group rights rather than individ-
ual rights. Consideration of international law points to these s. 35(1) rights as
including the right to self-determination. However, whether or not s. 35(1)
121bid. at 295.
1291t is arguable that this presumption is possible only if the statute under consideration is, on
its face, ambiguous. Whether or not there is such a precondition, the use of the term “peoples”
would appear to be ambiguous. S. 35(1) therefore seems an appropriate subject for application of
the rule of construction. Ibid. at 298.
54, 69 at 73-76, 85-86; G. Nettheim, “‘Peoples’ and ‘Populations’ –
Rights of Peoples” in Crawford, ed., supra, note 54, 107 at 118.
130Dinstein, supra, note 126; Crawford, supra, note 54 at 164.
131D. Makinson, “Rights of Peoples: Point of View of a Logician,” in Crawford, ed., supra, note
Indigenous Peoples and the
132R.L. Barsh, “Indigenous Peoples and the Right to Self-determination in International Law”
in B. Hocking, ed., International Law and Aboriginal Human Rights (Sydney, Australia: Law
Book, 1988) 68 at 71.
133E.-I.A. Daes, “On the Relations between Indigenous Peoples and States” (1989) 11 Without
Prejudice 41 at 48.
134Crawford, supra, note 54 at 164-65.
1991]
ABORIGINAL GROUP RIGHTS
rights include the right of self-determination, international law concepts
strongly suggest that “peoples” rights are group rights.
B. The Content of Aboriginal Group Rights
Certain conclusions follow when a right exists in a group, rather than in
individuals. First, acceptance of a group as a bearer of rights implies recognition
of certain specific rights in that group. We call this the principle of “necessary
rights.” For example, the right to exist as a group, or to put it another way, the
right to preserve itself.’35 Secondly, the group to which the right is attached has
the authority and inevitably bears the political responsibility for administering
that right as between the members of the group. This is the principle of “internal
authority.” Thirdly, the exercise of the group right must be coordinated with per-
sons or other groups who are not members of the group. This is the principle
of “external relations.”
These three principles of group rights can be applied to Aboriginal rights
in many contexts. We will briefly explore these principles in the context of hunt-
ing, fishing and trapping rights. This particular area is chosen as an example
because of its centrality to Aboriginal history and to environmental relations. It
is probable that these principles apply as well to other areas of native law.
1.
Necessary Rights
Johnston has argued that a corollary to the existence of Aboriginal group
rights is the right of group self-preservation. She applies this principle to reserve
lands, arguing that because of the central role that reserve lands play in the pres-
ervation of Aboriginal groups, the federal government’s power under the Indian
Act to expropriate reserve lands conflicts with this basic group right.’36
Similarly, there are many situations where hunting, fishing or trapping
practices are essential to Aboriginal identity as a separate group. The preserva-
tion of those practices would then be included in the right of group self-
preservation. The idea that hunting is essential to “Indianness” is not a novel
one. The concept has been accepted by the courts in a somewhat different con-
text, dealing with the federal/provincial division of powers. In R. v. Dick, Mr.
Justice Lambert of the British Columbia Court of Appeal opined, in dissent, that
killing fish and animals for food and other uses gives shape and meaning to the
lives of the members of the Alkali Lake Band. It is at the centre of what they do
and what they are…. 137
(1989) 2 Can. J. L. & Juris. 19 at 34.
135D.M. Johnston, “Native Rights as Collective Rights: A Question of Group Self-Preservation”
136Ibid. at 32.
137(1983), 3 C.C.C. (3d) 481 at 491, [1983] 2 C.N.L.R. 134, aff’d [1985] 2 S.C.R. 309, [1985]
4 C.N.L.R. 55 [hereinafter Dick cited to C.C.C.].
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I think it is worth adding that I have derived some sense of the nature of Indianness
from the fact that the Indians in Alberta, Saskatchewan and Manitoba have the
right to hunt and fish for food at all seasons of the year. … I think that those rights
are characteristics of Indianness, at least for those Indians .. 138
It may be necessary to develop principles that recognize other aspects of
“Indianness” protected as part of the group rights in s. 35(1). Obviously, this
would be a complicated and difficult task. Nevertheless, s. 35(1) requires the
court to undertake such an enterprise, particularly in the areas of hunting, fish-
ing and trapping.
2.
Internal Authority
Our review of Indian ecological management systems demonstrated that
group administration of Aboriginal hunting, fishing and trapping survives and
operates effectively. Consequently, the principle of internal authority seems nat-
urally and easily applicable. S. 35(1), properly understood, protects these time-
honoured systems as part of the group right. Such recognition has a number of
implications.
A crucial first step is coming to terms with the unwritten nature of Abo-
riginal ecological management systems. Furthermore, these systems are not
governed by Western practices of “positive” law, in which a clearly definable
authority issues specific rules. Therefore, Canadian legal institutions, including
legislatures, courts, and administrative tribunals, will be required to demonstrate
the willingness and flexibility to recognize a different system of law.
Zion has pointed out the analogy between Aboriginal systems of norms
and the English common law, which Blackstone defined as a collection of
“maxims and customs” of antiquity.’39 However, searching out the “Indian com-
mon law” requires diligence and sensitivity. Such common law is not found in
reported cases. As Zion noted:
The infrastructure is important because it is the law. The religious outlook [ani-
mism, or a holistic relationship to the environment] and the interlocking pattern of
families and Elders constitute the court, the flow of law. Legal relationships are
family and religious relationships, and the law operates in accordance with the
structure found. 140
138Ibid. at 493. Lambert J.A., in dissent, took note of the fact that “[t]he meat was shared out
among Band members in accordance with the institutional practices of the Shuswap People” (supra
at 490). The Supreme Court of Canada spoke approvingly of his views, although it decided the case
on a different point (see supra).
139J.W. Zion, “Searching for Indian Common Law” in B.W. Morse & G.R. Woodman, eds,
140Ibid. at 128.
Indigenous Law and the State (Holland: Foris Publications, 1988) 121 at 124-25.
1991]
ABORIGINAL GROUP RIGHTS
Identifying Aboriginal law, therefore, has many practical implications.
Evidentiary rules may have to be changed to allow elders to testify directly as
to the norms which govern situations. Judicial bodies will have to learn to
understand and recognize community decisions reached in a consensual proc-
ess. The courts will have to recognize that internal authority may be adminis-
tered without using the discourse of individual “rights.” Some of these changes
will require legislation.
Alternatively, it may be possible for Aboriginal societies to codify the
norms and practices of traditional ecological management. Grant describes the
long consultative process through which the Gitksan and Wet’suwet’en peoples
of British Columbia codified their traditional fishery management practices. For
example, they adopted their own definition of law:
A social norm is legal if its neglect or infraction is regularly met, in threat or in
fact, by the application of physical force, ostracism or shame by an individual or
group possessing a socially recognized privilege of so acting. 141
Fishing by-laws such as those adopted by the Gitksan and Wet’suwet’en have
been increasingly upheld by Canadian courts. 4
3.
External Relations
In the Aboriginal ecological management context, the principle of external
relations has a number of specific implications because of two additional fac-
tors: the sensitivity of the resource and Aboriginal priority to it.
A group right to conduct a particular activity (such as hunting, fishing and
trapping) is meaningless when the object of that right (the deer stock and the
deer’s habitat, the fish stock and the fish habitat) is subject to damage or deple-
tion by external individuals or groups, unless the group has some means to pro-
tect that stock or habitat from those external factors.
In Claxton, a treaty with an Indian band that stated “we are at liberty to …
carry on our fisheries as formerly.”‘143 The Court ruled that this was sufficient
grounds to prevent construction of a marina in the relevant bay, which would
have had the effect of destroying part of the fishery. Similarly, a group right to
hunt over a particular territory, a right which is found in many treaties, includes
the right to restrict access to outside hunters where such influx would endanger
14P.R. Grant, “Recognition of Traditional Laws in State Courts and the Formulation of State
Legislation” in Morse & Woodman, eds, supra, note 139, 259 at 260.
142See R. v. Lewis, [1989] 4 C.N.L.R. 133 (B.C. Cy Ct.); R. v. Nikal, [1989] 4 C.N.L.R. 143
(B.C. Cy Ct.); R. v. Ward (1989), 93 N.B.R. (2d) 370, [1989] 2 C.N.L.R. 142 (C.A.). Note, how-
ever, that these by-laws were passed under delegated powers under the Indian Act. We argue that
such laws have legal force independent of the Indian Act.
143Supra, note 47 at 81.
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[Vol. 36
the stock of wildlife. The second factor which adds content to the principle of
external relations is the existence of Aboriginal priority. The Supreme Court has
recognized in Sparrow that the special nature of treaty and Aboriginal rights
gives Aboriginals priority or preferred access to resources when needed for
food. This may require limits on the extent to which non-group members have
access to the resource. Theoretically, such limits could be imposed on non-
Aboriginals by the relevant Aboriginal group itself, or by the provincial or fed-
eral government. If the provincial or federal government declines to acknowl-
edge sole Aboriginal authority for such purpose, such a government would
nevertheless be required, as a practical necessity, to work in partnership with the
Aboriginal group in order to achieve the result.
C. The Effect of Sparrow
This article has argued that a proper interpretation of s. 35(1) would
include group rights and that group rights in the context of Aboriginal environ-
mental relations would entail the recognition and protection of Aboriginal eco-
logical management systems as detailed above. In Sparrow, the Supreme Court
set out a framework for the application of s. 35(1). In this final section we will
examine this framework and its possible application in the context of environ-
mental rights.
The Supreme Court’s decision in Sparrow is consistent with the group
rights approach to s. 35(1) we have outlined. As noted earlier, the Court asserted
that the Aboriginal fishing rights which were at issue in the case
are rights held by a collective and are in keeping with the culture and existence
of that group….
While it is impossible to give an easy definition of fishing rights, it is pos-
sible, and, indeed, crucial, to be sensitive to the aboriginal perspective itself on the
meaning of the rights at stake.'”
The Court then set out an analytical framework for determining whether
legislation conflicts with s. 35(1) Aboriginal rights. As a first step in this frame-
work, it must be determined whether the limiting legislation constitutes a prima
facie infringement of the right. If so, the second step requires the government
to justify the regulation. This second step itself comprises two parts, the first
determining whether the regulation has a valid legislative objective, and the sec-
ond determining whether the regulation is consistent with the government’s spe-
cial fiduciary duty to Aboriginals.
In the first step, the tests as to whether there has been an infringement are,
first, “is the limitation unreasonable?”, or secondly, “does the regulation impose
undue hardship?”, or thirdly, “does the regulation deny to the holders of the
‘”Supra, note 7 at 1112.
1991]
ABORIGINAL GROUP RIGHTS
right their preferred means of exercising that right?”‘ 45 Although not specifically
considered by the court at this step, the group nature of the right would be sig-
nificant in determining whether or not infringement has occurred.
If Aboriginal harvesting is a largely group-based activity, then interference
with the group aspects of the activity would constitute infringement. Any gov-
ernment system which licenses or permits hunting or trapping would constitute
an infringement if the system did not follow the group’s internal allocation sys-
tem. The British Columbia Supreme Court, in applying the Sparrow decision,
has noted that
the aboriginal right includes the right, not the privilege but the right, to follow the
directions of the traditional leaders of the band in conducting the fishery, the place
of fishery and the method of fishery, and the right not to be required to choose
between an employee or representative of the Department of Fisheries and the tra-
ditional leaders of the Wet’suwet’en people. 146
A system which permitted outsiders, such as sporthunters, access to these
resources would conflict with the local management system and thus constitute
a prima facie infringement.
Once a prima facie infringement of Aboriginal or treaty rights has been
demonstrated, the second step of the analysis requires the government to then
justify the regulation. In the justification analysis, the first of the two parts
requires the government to show a valid legislative object. “Conservation” is
accepted by the Court as a valid object.
The analysis then proceeds to the second part of the justification issue. The
general principle governing this part is that,
the honour of the Crown is at stake in dealings with aboriginal peoples. The spe-
cial trust relationship and the responsibility of the government vis-a-vis aborigi-
nals must be the first consideration in determining whether the legislation or action
in question can be justified. 147
Applying this principle in Sparrow, the Court focussed on an allocation
question: assuming the condition of the fish population is such that it is safe to
harvest, who has priority for the available fish? The Court ruled that Aboriginals
must.be given top priority for their food requirements. 48 In addition, the Court
identified further questions to be addressed within the analysis of justification,
such as “whether there has been as little infringement as possible in order to
effect the desired result,” and “whether the aboriginal group in question has
1451bid.
146R. v. Nikal, [1991] 1 C.N.L.R. 162 at 167.
147Supra, note 7 at 1115-16.
1481bid. at 1116.
REVUE DE DROIT DE McGILL
[Vol. 36
been consulted with respect to the conservation measures being imple-
mented.”14 9
Finally, the Court recognized that questions of management also arise,
although it did not pursue them in detail. 0 A regulatory scheme which transfers
decision-making power from the Aboriginal group to regulatory officials would
clearly contravene the principle of internal authority. In addition, by weakening
local management systems, it would contravene the principle of group self-
preservation. It is hard to imagine how the “special trust relationship” can have
any substance if it does not include protection for the group nature of the Abo-
riginal right, which is such an essential characteristic of the right.
It is possible to construct an interpretation of Sparrow which downplays
the group nature of Aboriginal rights, and the role of Aboriginal management
systems. For example, the Court stated that
the objective of this requirement [the Aboriginal priority for food] is not to under-
mine Parliament’s ability and responsibility with respect to creating and adminis-
tering overall conservation and management plans regarding the salmon fishery.
The objective is rather to guarantee that those plans treat aboriginal peoples in a
way ensuring that their rights are taken seriously.’ 51
This could be taken to mean that the government’s jurisdiction over manage-
ment remains unchanged, with the possible exception that Aboriginal rights be
considered and factored into the plans, and Aboriginal peoples have input. Such
an interpretation would leave all authority with Parliament, giving Aboriginal
peoples no more than the right to be consulted. This would require minimal con-
sideration of Aboriginal group rights, and little respect for Aboriginal manage-
ment systems.
Such a reading of Sparrow is neither necessary nor consistent with the
principles on which the decision is based. The Court emphasized Parliament’s
responsibility for “overall” management.’52 Such “overall” responsibility does
not preclude the continued existence of Aboriginal management systems, which
could be incorporated into general plans. Accommodation would accomplish
the conservation objective and respect the trust relationship. Therefore, where
a viable Aboriginal management system exists, the government arguably must
accommodate it rather than displace it. Indeed, the Court specifically notes that
the objective of “the conservation and management of our resources is consist-
ent with aboriginal beliefs and practices, and, indeed, with the enhancement of
aboriginal rights.”’53
14 91bid. at 1119.
‘150Ibid. at 1116.
151Ibid at 1119.
1521bid.
’53Ibid. at 1115.
1991]
ABORIGINAL GROUP RIGHTS
On the basis of Sparrow, it would seem that an Aboriginal local manage-
ment system, in appropriate circumstances, is the preferried means of conserva-
tion. If coherent evidence was brought before a court demonstrating an existing,
viable and effective traditional Aboriginal management system (whether written
or unwritten) it is difficult to see how a government could successfully justify
externally imposed legislation (which infringed on Aboriginal or treaty rights),
since legislation then would not constitute the method of attaining its objective
(such as conservation) with “as little infringement as possible.”‘” To comply
with s. 35(1), the government should be required to integrate Aboriginal ecolog-
ical management systems into environmental protection programs. 55
Conclusion
The Canadian legal and political system has always recognized that Abo-
riginal communities are separate and unique. Part of that uniqueness lies in the
special relationship that Aboriginal peoples have cultivated with their environ-
ment over the centuries. Section 35(1) of the Constitution Act confirms the
uniqueness of Aboriginal communities. It will also require a re-evaluation of the
approach taken with respect to Aboriginal and treaty rights in the past, and a fur-
ther elaboration of those rights. A sensible and sensitive interpretation of the
Aboriginal and treaty rights will guarantee for Aboriginal peoples the ability to
sustain and develop their environmental understandings, as a group, for the ben-
efit of themselves, the environment, and the rest of Canadian society.
at 1119.
“%41bid.
155The principle could even be extended to those situations where an Aboriginal management
system had once existed, but is now weakened, for example, through long imposition of external
regulation. In such a case, the special trust relationship would require the government to repair such
a system, by incorporating and encouraging it, for example, by providing an important role to local
elders. The principle may even be applicable to situations where an Aboriginal management system
is all but defunct. In such a case, externally administered conservation measures may be allowed,
but on a time limited basis so that if Aboriginal systems revive, they can again be accorded
primacy.