Indigenous-related rights are both domestic and international rights granted or given to Indigenous Peoples by the Crown or the United Nations. They are not Immemorial rights. International Indigenous-related rights will be discussed on another website page.
The Crown, and therefore the Government of Canada, has never recognized sovereign Indigenous Immemorial rights. The Crown has always decided what rights Indigenous Peoples in Canada will be permitted. The Crown uses its assumed sovereignty to grant Indigenous-related rights. They are granted-by, defined-by and defended-by the Crown, its government institutions and the rule of law in Canada using a Framework of Colonization.
Indigenous-related rights are actually an extension of the Crown’s jurisdiction and function to replace sovereign Immemorial rights to Indigenous lands, resources and peoples. They are part of the colonization process. Indigenous-related rights create an alternate rights regime that works with Crown-Delegated Jurisdictions to assimilate Indigenous Peoples in Canada.
Indigenous-related rights include:
- Fiduciary rights;
- Constitutional rights;
- Treaty rights;
- Aboriginal rights;
- Aboriginal title; and,
- Self-Government.
A fiduciary duty involves trust. In the case of the Crown and Indigenous Peoples, the fiduciary duty is a holding in trust of Indigenous rights, land, resources, and peoples on behalf of Indigenous Peoples. The Crown’s fiduciary duty includes an element of ensuring actions undertaken by the Crown and its subjects which affect Indigenous rights, lands, resources or peoples are honourable.
The Crown’s fiduciary duty first arose with the Royal Proclamation of 17631 when the Crown placed itself between settlers and Indians with regard to the acquiring of land. Section 91(24) of the British North America Act (1867), and then section 91(24) of the Constitution Act (1982), gave control of Indians (Indigenous Peoples) and Indian lands to the federal government transferring the Crown’s fiduciary duty to the Government of Canada. Parliament later gave the Government of Canada sole discretion to decide where Indigenous interests best lie for Indigenous lands through the Indian Act.2
This created an exclusive federal jurisdiction in which the federal government is responsible for providing programs and services to Indigenous communities that most communities in Canada receive from provincial and municipal levels of government. These program and services include education, health and social services, roads, housing, water and waste management, governance, and more. The federal government’s responsibility includes funding for Indigenous services and programs.3
Fiduciary duties became enforceable in 1984 with the Supreme Court of Canada’s Guerin decision.4 When that occurred, fiduciary duty also became a right to the fiduciary duty, a Fiduciary right. These duties, and subsequent Fiduciary rights, are not limited to the Crown’s management of reserve lands and resources. They extend to the Crown’s decision making and legislative authority over all lands and resources subject to Aboriginal rights and title.5 Further, fiduciary duties and the right to fiduciary duties are present when any Indigenous interest is involved and the Crown is exercising its discretionary authority.6
The Crown’s fiduciary duties and Indigenous Fiduciary rights are defined by and found in the part of the rule of law referred to as common law (court decisions). We know the Canadian rule of law excludes Indigenous sovereignty while protecting Crown sovereignty, raising Crown rights above Immemorial rights. As a result, for example, the Crown’s right to develop land almost always takes priority over the Indigenous Fiduciary right to have the Crown ensure an Indigenous decision to preserve the land is respected. Consequently, Fiduciary rights granted to Indigenous Peoples are ‘less-than’ Immemorial rights.
Fiduciary duties for indigenous land, resources and peoples is part of Indigenous sovereignty, not Crown sovereignty. Indigenous nations in Canada have a sovereign Immemorial right to provide services, programs, and land management for their peoples. Definitions for these Indigenous fiduciary duties and roles are found within sovereign Immemorial rights held by Indigenous rights holders. To recognize and reconcile with Indigenous fiduciary duties, consultation of community-based rights-holders must be undertaken to retrieve Indigenous fiduciary definitions for the self-determination of Indigenous roles.
Rights in Canada are protected by their inclusion into the rule of law (constitutional, legislative, and common law). When the Government of Canada included section 35 into the Constitution Act in 1982,7 they created constitutional law that recognized Aboriginal peoples, Treaty rights, and Aboriginal rights. The protection of section 35 rights was placed within section 25.8
At the same time in 1982, the Government of Canada retained section 91(24) in the Constitution Act, which does not recognize Indigenous sovereignty and the Immemorial right of Indigenous Peoples to manage their traditional territories, resources, or peoples. The exclusion of Indigenous sovereignty and Immemorial rights in Canada through section 91(24) extends to the rest of the, including section 25 and 35.
To be clear, section 35 excludes Indigenous sovereignty, Immemorial rights, law, and jurisdiction.
Section 35 creates Treaty rights that are not Indigenous sovereignty or Immemorial rights-based. Treaty rights exclude pre-existing Indigenous sovereignty and limit Immemorial rights to traditional territories (see below). In this regard, Treaty rights under section 35 are ‘less than’ Immemorial rights. Treaty rights are protected and treaty limitations are enforced by the Canadian judiciary system which excludes Indigenous law, Immemorial rights, and sovereignty.
Since section 91(24) does not recognize Indigenous sovereignty or Immemorial rights, by definition Aboriginal rights created in section 35 are based on Crown sovereignty and rights to the exclusion of Indigenous sovereignty and Immemorial rights. Aboriginal rights under section 35 are a ‘new class’ of rights introduced into Canada in 1982. In fact, there were no Aboriginal rights in 1982 and the class was empty. Aboriginal rights must be proven in court by something called the ‘integral to the distinctive culture test’9 before they are a recognized section 35 Aboriginal rights. The rule of law that defines and protects new Aboriginal rights has evolved in Canada’s court system that is biased against Immemorial rights.
There are a number of Aboriginal rights now guaranteed under section 35, including self-government. However, all Aboriginal rights under section 35 are ‘less-than’ Immemorial rights because they are created to the exclusion of Indigenous sovereignty, Immemorial rights, laws, and jurisdiction.
When the Crown delegated its authority into section 35, it created an ‘alternate rights regime’ containing Aboriginal and Treaty rights. The true rights regime of Indigenous Peoples is Immemorial rights which contains ‘Our Rights’ and rights of ‘The Land’. The alternate rights regime in section 35 replaces Immemorial rights domestically10 and works outside of international concepts of self-determination.
Section 35 has one more important caveat to mention, it defined Indigenous Peoples in Canada as First Nation, Inuit, and Métis ‘Aboriginal’ peoples. In doing so, the Government of Canada created a three-group distinction of peoples. However, these distinctions of Aboriginal peoples are not based on the pre-existing sovereignty of Indigenous nations who already had their ‘distinct peoples’. This is important since these distinctions of First Nation, Inuit, and Métis are not recognized by international law as sovereign Indigenous Peoples entitled to the international right of self-determination.
If we put the whole of section 35 together with its Treaty rights, Aboriginal rights, and three-group peoples distinction of Aboriginal peoples, section 35 created a new class of ‘Aboriginal citizen’ with an alternate rights regime. New citizens are called Aboriginal peoples and have three ethnic groups, First Nations, Inuit, and Métis peoples. Rights of these new citizens are protected by section 25. These new Aboriginal citizens have:
- A right to self-government in place of the international right to self-determination;
- Treaty rights and Aboriginal title in place of Indigenous sovereignty over land and resources; and,
- Aboriginal rights in place of Immemorial rights.
At some point in the future, non-Indigenous and Indigenous Peoples will need to renew the Constitution Act to reflect a relationship based in Indigenous sovereignty-based self-determination, a relationship without the Doctrine of Discovery and sections 25, 35, and 91(24). When that time comes, Indigenous Peoples in Canada may choose an option for internal self-determination. If they do, Indigenous Peoples and Canada will need to work together to constitutionally include ‘Indigenous citizens’ and their Immemorial rights to sovereignty, law, and jurisdiction. Immemorial rights must be defined by Indigenous Peoples. To receive that definition, community-based rights-holders will need to be consulted by the Government of Canada.
The making of treaties created Treaty rights for Indigenous Peoples apart from the residual (or permanent) rights to sovereignty over land and peoples. Treaty rights are ‘pencilled’ into a treaty. They are guaranteed in section 35 of the Constitution Act and defined by the common law portion (court decisions) of the rule of law.
Canada recognizes its treaties with Indigenous Peoples as domestic agreements with no international status11 – no grounding in Indigenous sovereignty. As such, Treaty rights under section 35 are restricted to what is pencilled into the agreement with the extinguishment (or failure to recognize) of all other residual sovereign-based land rights. Treaties remove Immemorial rights with this extinguishment, resulting in Treaty rights that are ‘less-than’ sovereign Immemorial rights to land and resources. All treaties are interpreted by, and Treaty rights are defined by, the Canadian rule of law.
For simplicity, Canada’s treaties with Indigenous Peoples can be loosely put into 4 groups:
1. Pre-confederation Treaties;
2. Post-confederation Treaties;
3. Modern Treaties; and,
4. Unsettled Claims.
Treaties can be further categorized as:
1. Friendship Treaties;
2. Surrender Treaties;
3. Land Claims with Self-Government Agreements; and,
4. Bilateral Agreements (Right-specific).
In words from the Report of the Royal Commission Aboriginal Peoples (1996), the intent of the Treaty process was:
“The Crown asked First Nations to share their lands with settlers, and First Nations did so on the condition that they would retain adequate land and resources to ensure the wellbeing of their nations. The Indian parties understood they would continue to maintain their traditional governments, their laws and their customs and to co-operate as necessary with the Crown. There was substantive agreement that the treaties established an economic partnership from which both parties would benefit.”12
The Crown has always understood treaties as the instrument by which ‘Aboriginal title’ to land is voluntarily extinguished. Aboriginal title should not be confused with Indigenous sovereignty over land and resources. Most Indigenous Peoples in Canada do not understand the Crown removed their sovereign right to control their traditional territories with the Doctrine of Discovery ‘before’ Canada was confederated in 1867. The Aboriginal title that can be claimed by Indigenous Peoples after confederation is the right to occupy and use the land, not resources, until it is developed by the Crown.
“Although Canadian law allows for the surrender of Aboriginal title [under section 35] to the Crown, this does not mean that it is surrenderable under Aboriginal law [Indigenous law]. Leroy Little Bear has explained that Aboriginal peoples generally did not have a concept of land ownership that would have included authority to transfer absolute title to the Crown. They received their land from the Creator, subject to certain conditions, including an obligation to share it with plants and animals. Moreover, the land belongs not just to living Aboriginal persons, but to past and future generations as well.”13
The Treaty process has had a number of fundamental problems. Some of which are:14
1. Only the Crown's version of Treaty negotiations and agreements was recorded in accounts of negotiations and in the written texts. One of the exceptions to this is a pencilled copy of the verbal account of Treaty 3 called the Paypom Treaty.15
2. The Crown failed to establish the necessary laws to uphold most pre- and post-confederation treaties;
3. Most pre- and post-confederation Treaty promises were unfulfilled and legislation frequently overwrote Treaty promises; and,
4. For most of Canada’s history, no effective office in government was given responsibility for fulfilling Crown Treaty commitments.
4. Treaty Rights Discrimination:
All of Canada’s treaties were made under the Doctrine of Discovery. Treaties were negotiated by the Crown from a position in which the Crown ‘controlled’ everything and attempted to give as little control or benefit as possible to Indigenous Peoples. As a result, we have a myriad of treaties and agreements that have created wildly inconsistent Treaty rights from one Indigenous nation to the next.
A reasonable question to ask would be, when the hard bargaining allowed under assumed sovereignty16 during a consultation process resulted in less Treaty rights to one Indigenous nation than another, was there discrimination or a violation of rights? If the answer is no, does it result in discrimination or a violation of rights when the Doctrine of Discovery is removed?” Keep in mind, the exercise would need to be done using provincial, federal, and international rights instruments. The answer is, “Yes.”
“In the past, governments and courts in Canada have often considered these treaties instruments of surrender rather than compacts of co-existence and mutual benefit. This is the spirit of colonialism, the agenda of a society that believes it has no more need for friends because of its apparent wealth, power and superiority. The spirit of the treaties, by contrast, is the spirit of a time when the ancestors of today's Canadians needed friends and found them.”17
The Government of Canada will need to reassess treaties and Treaty rights in the context of Indigenous sovereignty, without the Doctrine of Discovery. That sovereignty will need to be defined by Immemorial rights, international rights, and self-determination. However, there is no data base on the Immemorial rights of Indigenous Peoples within various Indigenous nations.
The TRC’s final report calls on the Government of Canada to renew or establish Treaty relationships with Indigenous Peoples.18 To accomplish this, the Government of Canada will need to consult community-based Immemorial rights holders to ensure treaties respect and affirm these rights equally between treaty nations.
We have already seen (see above) that Aboriginal rights created by section 35 are defined by a system based on the Doctrine of Discovery and are part of an alternate rights regime that replaces Immemorial rights. Aboriginal rights under section 35 are therefore by definition ‘less-than’ their counterpart Immemorial rights. However, this does not diminish the importance of the protection section 35 provides to Aboriginal rights in the interim as Indigenous Peoples move toward the Doctrine of Discovery’s removal from their relationship with the Crown.
The duty of the Crown to consult and accommodate Indigenous Peoples flows from the Crown’s assumed sovereignty over lands and resources.19 The duty is now an Aboriginal right under section 35.20 It was defined by common law (court decisions) and the bulk of Aboriginal law (non-Indigenous law related to Indigenous people) governing it is still in common law. We will use the Aboriginal right to consultation as an example of the disconnect between Aboriginal and Immemorial rights:
Indigenous Peoples understand their right to consultation in terms of Immemorial rights where, among other things:
1. ‘Our Rights’ and ‘The Land’ will be protected; and
2. There will be an agreement.
However, common law for the Aboriginal right to consultation indicates:
1. Aboriginal rights recognized under section 35 can be infringed upon or denied when required;21 and,
2. The Aboriginal right to consultation is the Crown’s commitment to a process with no duty to reach an agreement.22
As an Aboriginal right, the constitutional right to consultation is ‘less-than’ its counterpart Immemorial right to consultation. The same is true for other section 35 Aboriginal rights including: Self-government, fishing, hunting, and etc.
2. Extinguishing Aboriginal Rights:
Immemorial rights are given by the Creator and have no end. Aboriginal rights can be removed (extinguished) from Indigenous Peoples by the Crown in one of four ways:
1. The removal of section 35 from the Constitution Act. This can be done without First Nation consent following resolutions from the House of Commons, the Senate, and two-thirds of provincial legislatures representing more than fifty percent of Canada’s population;23
2. The Indian Act provides a mechanism to extinguish First Nation status, and therefore Aboriginal rights, through bloodline dilution;24
3. Treaties and land claims execute a voluntary surrender of Aboriginal rights and title;25 and,
4. Legislation prior to 1982.26,27
Indigenous Immemorial rights cannot be extinguished by the Crown and the Crown’s assumed sovereignty only exists in the eyes of the Doctrine of Discovery. As indigenous Peoples take their sovereign places in Canada, the Government of Canada and Indigenous Peoples will need to renew their relationship with the inclusion of Immemorial rights into the Constitution Act and the rest of the rule of law.
Indigenous Peoples in Canada are sovereign and that sovereignty predates the Crown in Canada. The authority of that sovereignty extends over their communities and traditional territories. That jurisdictional authority is defined by their Immemorial rights, including rights to land. In this, Indigenous Peoples have a sovereign, underlying title to their traditional territories, an ‘Indigenous title’.
2. An Aboriginal Right of Aboriginal Title:
The Crown assumed sovereignty in Canada through the Doctrine of Discovery. At the time sovereignty was assumed, the Crown acquired underlying title to Indigenous land but it was burdened by the pre-existing legal right of Indigenous Peoples to use and occupy their land.28,29 This pre-existing legal right is referred to as ‘Aboriginal title.’ Aboriginal title is an Aboriginal right protected under section 35 of the Constitution Act:
“Where title is asserted, but has not yet been established, s. 35 of the Constitution Act, 1982 requires the Crown to consult with the group asserting title and, if appropriate, accommodate its interests;” and,
“Once Aboriginal title is established, s. 35 of the Constitution Act, 1982 permits incursions on it only with the consent of the Aboriginal group or if they are justified by a compelling and substantial public purpose and are not inconsistent with the Crown’s fiduciary duty to the Aboriginal group; for purposes of determining the validity of provincial legislative incursions on lands held under Aboriginal title, this framework displaces the doctrine of interjurisdictional immunity.”30
The following quote places the Doctrine of Discovery and Aboriginal title into perspective.
“The land rights of Indigenous peoples have never been recognized by the European-based system of international law as having priority over the rights of colonizing states; and although international law has undergone dramatic shifts in terms of recognizing human rights, there has never been an attempt to revisit the injustice inherent in the notion of sovereignty based on the Doctrine of Discovery. Consequently, Indigenous peoples have been forced to deal with judicial systems that are wedded to an archaic and racist principle of papal law…. Sovereignty is presumed to reside in the Crown, and thus the Crown has the right to own Native land. Native peoples are regarded as having an Aboriginal claim on land, but this claim is not equivalent to ownership. Aboriginal title relates to rights of occupation and use, not underlying title. Thus, all Aboriginal land rights are limited in Canada. Any land right can be contravened if the government deems such a move necessary for economic or other reason.… Regardless of the negotiations and payment of compensation that are now by convention considered to be necessary components of the process of extinguishing Aboriginal rights, the fact that extinguishment is possible, and that limits on alienability continue to be imposed on Native peoples, underscore the Crown’s preemptive rights that are founded in the Doctrine of Discovery.”31 [emphasis added]
The Crown must consult Indigenous communities on Immemorial rights to recognize and reconcile with Indigenous sovereignty over traditional territories as Indigenous people mpove forward with self-determination.
Indigenous self-government in Canada was actually started with the Indian Act when it was first brought into legislation in 1876. The band governance system in the Indian Act was part of a profoundly racist forced assimilation system in Canada commonly referred to as cultural genocide. The band governance system replaced pre-existing sovereign Indigenous governance systems.32
It was first suggested by Canadian government officials that Indigenous Peoples had an Aboriginal right to self-government in 1983.33 In 1995, the Government of Canada recognized the inherent right of self-government as an existing Aboriginal right under section 35.34 That right includes limited jurisdiction over services that benefit citizens and communities. Service jurisdiction areas include: Agriculture, health, education, government, policing, social services and child welfare.
Some First Nation communities are moving away from the Indian Act governance system towards self-government under section 35 using alternate legislation enacted by the federal government.35 Unfortunately, section 35 is part of an alternate rights regime. Consequently, self-government under section 35 replaces sovereign self-determination bringing Indigenous Peoples back under the authority of the Crown into a governance model scheme similar to the Indian Act.36
The underlying reason for the denial of self-determination by the Government of Canada seems to centre around a belief that Indigenous Peoples do not have legitimate authority to be considered nations.
“One such modern variant, evident in the more complex politics of the last three decades and very much current today, is that Aboriginal peoples constitute an interest group, one among many in a pluralistic society. They, along with the labour movement, the agricultural lobby, or any other interest group are to be listened to respectfully, but their demands are subject to the political agenda and trade-offs of the day. They are not seen as having legitimate political authority, as being nations entitled to treatment as nations.37 [Emphasis Added]
1. (1763) The Royal Proclamation of 1763, October 1763. https://caid.ca/RoyalPro010208.pdf
2. Guerin v. Canada, [1984] 2 SCR 335, at p. 383. https://caid.ca/GueDec1984.pdf
“Through the confirmation of the Indian Act of the historic responsibility which the Crown has undertaken, to act on behalf of the Indians so as to protect their interests and transactions with third parties, Parliament has conferred upon the Crown a discretion to decide for itself where the Indians' best interest really lie.” [Emphasis Added]
3. (2011) Status Report of the Auditor General of Canada to the House of Commons, Chapter 4: Programs for First Nations on Reserves, Office of the Auditor General of Canada, p. 2. Cat. no. FA1-10/2011-4E-PDF ISBN: 978-1-100-18326-8 https://caid.ca/RepAugGenCanCh4_2011.pdf
“Most of the services provided to communities throughout Canada are the responsibility of provincial and municipal governments, but this is not the case on reserves. Under the Constitution Act, 1867, the federal government has exclusive authority to legislate on matters pertaining to “Indians, and Lands reserved for Indians.” INAC has been the main federal organization exercising this authority. While the federal government has funded the delivery of many programs and services, it has not clearly defined the type and level of services it supports.” [Emphasis Added]
4. Guerin v. Canada, [1984] 2 SCR 335. https://caid.ca/GueDec1984.pdf
5. (1999) Morellato, M., The Crown’s Fiduciary Obligation Towards Aboriginal Peoples. Blake, Cassels & Graydon LLP. https://caid.ca/CroFiduDut1999.pdf
6. (2008) McNeil, K., Fiduciary Obligations and Aboriginal Peoples, In Berryman, J. B., Gillen, M. R., and Woodman, F., eds., The Law of Trusts: A Contextual Approach, 2nd Edition. Toronto, ON: Emond Montgomery, 2008. p. 907-976, p. 963. https://caid.ca/FidOblAboPeo2015.pdf
“In the Wewaykum Decision (below), the Supreme Court attempted to provide some guidance regarding the circumstances in which fiduciary obligations may be present. More specifically, the court held that fiduciary obligations are present where there is a cognizable Aboriginal interest in relation to which the Crown is exercising discretionary authority.” [Emphasis Added]
7. (1982) Constitution Act. https://caid.ca/ConstAct010208.pdf
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.
(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.
8. (1982) Constitution Act. https://caid.ca/ConstAct010208.pdf
25. “The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including
(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and
(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.”
9. R. v. Vanderpeet, [1996] 2 S.C.R. 507, at para. 46. https://caid.ca/VanDec1996.pdf
“In light of the suggestion of Sparrow, supra, and the purposes underlying s. 35(1), the following test should be used to identify whether an applicant has established an aboriginal right protected by s. 35(1): in order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right.” [Emphasis Added]
10. (2008) Corntassel, J., Toward Sustainable Self-Determination: Rethinking the Contemporary Indigenous Rights Discourse. Alternatives 33: p. 105-132, at p. 111. https://caid.ca/TowSusSelDet2008.pdf
“Unfortunately, in the contemporary rights discourse, “Indigeneity is legitimized and negotiated only as a set of state-derived individual rights aggregated into a community social context – a very different concept than that of collective rights pre-existing and independent of the state.” Framing of indigenous rights by states and global institutions persists as indigenous peoples confront the illusion of inclusion in global forums such as the UN Permanent Forum on Indigenous Issues.” [Emphasis Added]
11. (1998) Cassidy, J., Sovereignty of Aboriginal Peoples. Ind Int’s & Comp L. Rev. 9.1: p. 65-119, at p. 95. https://caid.ca/SovIndPeo1998.pdf
“Perhaps more importantly, the international status of such treaties has been denied. ' Rather, they have been perceived as domestic "agreements between Crown and native subjects" in the case of Canadian agreements and "Crown and non-subjects" in the case of the Treaty of Waitangi.” [Emphasis Added]
12. (1996) Report of the Royal Commission on Aboriginal Peoples. Volume 1: Looking Forward, Looking Back. Part One: The Relationship in Historical Perspective. Chapter 6, Stage Three: Displacement and Assimilation; 5. Differing Assumptions and Understandings. Canada Communication Group — Publishing, Ottawa, Ontario K1A 0S9. https://caid.ca/RRCAP1.6.pdf
13. (2002) McNeil, K., Extinguishment of Aboriginal Tile in Canada: Treaties, Legislation, and Judicial Decision. p.3. https://caid.ca/ExtAboTitCan2002.pdf
14. (1996) Report of the Royal Commission on Aboriginal Peoples. Volume 1: Looking Forward, Looking Back. Part One: The Relationship in Historical Perspective. Chapter 6, Stage Three: Displacement and Assimilation; 6. Nonfulfillment of Treaties. Canada Communication Group — Publishing, Ottawa, Ontario K1A 0S9. https://caid.ca/RRCAP1.6.pdf
15. (1873) Paypom Treaty. https://caid.ca/paypom010208.pdf
16. Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, at para 42. https://caid.ca/HaidaDec010208.pdf
“Mere hard bargaining, however, will not offend an Aboriginal people’s right to be consulted.”
17. (1996) Report of the Royal Commission on Aboriginal Peoples. Volume 1: Looking Forward, Looking Back. Part One: The Relationship in Historical Perspective. Chapter 6, Stage Three: Displacement and Assimilation; 7. Restoring the Spirit of the Treaties. Canada Communication Group — Publishing, Ottawa, Ontario K1A 0S9. https://caid.ca/RRCAP1.6.pdf
18. (2015) Truth and Reconciliation Commission of Canada: Calls to Action, at para 45. iv. https://caid.ca/TRCFinCal2015.pdf
45. “We call upon the Government of Canada, on behalf of all Canadians, to jointly develop with Aboriginal peoples a Royal Proclamation of Reconciliation to be issued by the Crown. The proclamation would build on the Royal Proclamation of 1763 and the Treaty of Niagara of 1764, and reaffirm the nation-to-nation relationship between Aboriginal peoples and the Crown. The proclamation would include, but not be limited to, the following commitments:
iv. Renew or establish Treaty relationships based on principles of mutual recognition, mutual respect, and shared responsibility for maintaining those relationships into the future.” [Emphasis Added]
19. Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, at para 53. https://caid.ca/HaidaDec010208.pdf
“However, the duty to consult and accommodate, as discussed above, flows from the Crown’s assumption of sovereignty over lands and resources formerly held by the Aboriginal group.” [Emphasis Added]
20. Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, at para 20. https://caid.ca/HaidaDec010208.pdf
“Where treaties remain to be concluded, the honour of the Crown requires negotiations leading to a just settlement of Aboriginal claims: R. v. Sparrow, [1990] 1 S.C.R. 1075, at pp. 1105-6. Treaties serve to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty, and to define Aboriginal rights guaranteed by s. 35 of the Constitution Act, 1982. Section 35 represents a promise of rights recognition, and “[i]t is always assumed that the Crown intends to fulfill its promises” (Badger, supra, at para. 41). This promise is realized and sovereignty claims reconciled through the process of honourable negotiation. It is a corollary of s. 35 that the Crown act honourably in defining the rights it guarantees and in reconciling them with other rights and interests. This, in turn, implies a duty to consult and, if appropriate, accommodate.” [Emphasis Added]
21. R. v. Sparrow, [1990] 1 SCR 1075, at p. 1109. https://caid.ca/Sparrow020908.pdf
“Rights that are recognized and affirmed are not absolute. Federal legislative powers continue, including, of course, the right to legislate with respect to Indians pursuant to s. 91(24) of the Constitution Act, 1867. These powers must, however, now be read together with s. 35(1). In other words, federal power must be reconciled with federal duty and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies aboriginal rights.” [Emphasis Added]
22. Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, at para 42. https://caid.ca/HaidaDec010208.pdf
“However, there is no duty to agree; rather, the commitment is to a meaningful process of consultation. As for Aboriginal claimants, they must not frustrate the Crown’s reasonable good faith attempts, nor should they take unreasonable positions to thwart government from making decisions or acting in cases where, despite meaningful consultation, agreement is not reached:” [Emphasis Added]
23. (1982) McNeil, Kent. The Constitutional Rights of the Aboriginal Peoples of Canada. Supreme Court Law Review Vol. 4. p. 255-265. https://caid.ca/ConRigAboPeo1982.pdf
“The inadequacy of the provision for consultation with the aboriginal peoples highlights the major weakness of the constitutional entrenchment of their rights. Although now protected against infringement by Parliament or by as provincial legislature acting unilaterally, they can still be taken away at any time by a constitutional amendment authorized by resolutions of the Senate, the House of Commons, and the legislatures of two-thirds of the provinces having a combined population of at least fifty percent of the population of all the provinces. The consent of the aboriginal peoples is not required, and after the initial constitutional conference provided for in section 37 they would not even have to be consulted. Given the power the other participants have over their rights, the weakness of the bargaining position of the aboriginal peoples at the conference is obvious. Ultimately, therefore, the fate of their rights will depend on the level of public awareness of the legal and historical bases of those rights, and the degree to which the people of Canada expect their elected representatives to deal justly and fairly with the aboriginal peoples.” [Emphasis Added]
24. (1985) Indian Act 1985, S. 6(1)(f), 6(2) & 7(1)(b). https://caid.ca/IndAct010208.pdf
Personal Note: These sections of the Indian Act grant Aboriginal status and rights based on a person being “full-blood,” s.6(1)(f); “half-blood,” 6(2); and, “quarter blood,” 7(1)(b). Full- and half-blooded people are granted full status and rights whereas quarter bloods are granted rights but no status. Thus the Crown defines that only people with ½ blood or more are Aboriginal. These statutes provide a mechanism to extinguish Aboriginal people as a race in Canada while creating a new ‘Aboriginal’ ethnic minority without claims to traditional lands and resources.
25. (1993) Umbrella Final Agreement, Council of Yukon First Nations. Section 2.5.1.2. https://caid.ca/AgrCouYukIndUFA1993.pdf
“that Yukon First Nation and all persons eligible to be Yukon Indian People it represents, as of the Effective Date of that Yukon First Nation’s Final Agreement, cede, release and surrender to Her Majesty the Queen in Right of Canada all their aboriginal claims, rights, titles and interests in and to Category A and Category B Settlement Land and waters therein, to the extent that those claims, rights, titles and interests are inconsistent or in conflict with any provision of a Settlement Agreement;” [Emphasis Added]
26. (2002) McNeil, K., Extinguishment of Aboriginal Tile in Canada: Treaties, Legislation, and Judicial Decision. p.1. https://caid.ca/ExtAboTitCan2002.pdf
“However, the constitutional entrenchment of Aboriginal title and other Aboriginal and treaty rights in 1982 has meant that they are no longer subject to legislative extinguishment, even by Parliament.” [Emphasis Added]
27. Chippewas of Sarnia Band v. Canada (Attorney General) [2000], 51 O.R. (3d) 641. https://caid.ca/ChiSarDec2000.pdf
28 . Guerin v. R., [1984] 2 S.C.R. 335, p. 379. https://caid.ca/GueDec1984.pdf
“In the St. Catherine’s Milling case, supra, the Privy Council held that the Indians had a “personal and usufructuary right” in the lands which they had traditionally occupied. Lord Watson said that “there has been all along vested in the Crown a substantial and paramount estate, underlying the Indian tile, which became a plenum dominium whenever the title was surrendered or otherwise extinguished” (at p. 55). He reiterated this idea, stating that the Crown “has all along had a present proprietary estate in the land, upon which the Indian title was a mere burden” (at p. 58).”
29. Tsilhqot’in Nation v. British Columbia, [2014] SCC 44, at para. 12. https://caid.ca/TsiDec2014.pdf
“He held that the Crown acquired radical or underlying title to all the land in British Columbia at the time of sovereignty. However, this title was burdened by the “pre-existing legal right” of Aboriginal people based on their use and occupation of the land prior to European arrival.”
30. Tsilhqot’in Nation v. British Columbia, [2014] SCC 44, at para. 2. https://caid.ca/TsiDec2014.pdf
31. (2010) Reid, Jennifer. The Doctrine of Discovery in Canadian Law. The Canadian Journal of Native Studies 30(2): p351-352. https://caid.ca/CanDocDis2010.pdf
32. (2003) McNeil, Kent. "Challenging Legislative Infringements of the Inherent Aboriginal Right of Self-Government." Windsor Yearbook of Access to Justice 22: 329-361, p.329. https://caid.ca/ChaLegInfInhAbo2003.pdf
“The Parliament of Canada exercised its s.91(24) legislative authority over "Indians, and Lands reserved for the Indians" when it enacted the Indian Act in 1876. Through this Act and its precursors, the Canadian government imposed the band governance system on First Nations. Although traditional forms of Aboriginal government were not abolished by the imposition of this system, there can be no doubt that the capacity of Aboriginal governments was impaired and the inherent right of self-government of at least some First Nations was infringed.” [Emphasis Added]
33. (1983) Indian Self-Government in Canada. House of Commons, Report of the Special Committee on Indian Self-Government (Penner Report), p.43. https://caid.ca/PennerRep1983.pdf
“According to traditional constitutional interpretation prior to the recognition and affirmation of ‘existing aboriginal and treaty rights’ in the Constitution Act, 1982, all primary legislative powers were deemed to be vested either in Parliament or in provincial legislatures. The inclusion of existing aboriginal and treaty rights in the Constitution may have altered this situation. If, as many assert, the right to self-government exists as an aboriginal right, there could be a substantial re-ordering of powers. Indian governments may have implicit legislative powers that are now unrecognized.” [Emphasis Added]
34. (1995) Aboriginal Self-Government: The Government of Canada’s Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government. Minister of Public Works and Government Services Canada, Ottawa, Ontario, Catalogue No. R32-155/1-1995 https://caid.ca/AboSelGov1995.pdf
35. (2014) First Nations Elections Act. https://caid.ca/FirNatEleAct2014.pdf
36. (2018) King, H, & Pasternak, S., A Special Report, Canada’s Emerging Indigenous Rights Framework: A Critical Analysis, p. 4. Yellowhead Institute, Toronto, Ontario. https://caid.ca/CanEmeRigFra2018.pdf
“Our analysis reveals that the Rights Framework expresses a clear and coherent set of goals, which aim to suppress Indigenous self-determination within Canadian Confederation. These goals have been ordered into legislation and policy in a manner that guides First Nations towards a narrow model of “self-government” outside of the Indian Act. And remarkably, though labelled as new and transformational, the model reflects older and largely discredited approaches.”
37. (1996) Report of the Royal Commission on Aboriginal Peoples. Volume 1: Looking Forward Looking Back. Part Two: False Assumptions and a Failed Relationship. Chapter 8, 4. New False Assumptions. Canada Communication Group — Publishing, Ottawa, Ontario K1A 0S9. https://caid.ca/RRCAP1.8.pdf
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