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NATIONAL ABORIGINAL FORESTRY ASSOCIATION |
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An intervention submitted to the Royal Commission on Aboriginal Peoples by the National Aboriginal Forestry Association
Ottawa, Ontario
July, 1993
In this intervention, NAFA wishes to draw the Royal Commission's attention to the decisions in some of the most significant cases dealing with access to natural resources that have come before the courts in recent years. Our purpose is to demonstrate that Aboriginal peoples' access to resources has been affirmed and improved in important ways over the last 20 years, but that the recognition received falls short of Aboriginal peoples' aspirations. Provinces remain reluctant to accept Aboriginal people as partners in forest resource management of traditional lands. Important issues remain, many of which could be resolved if both governments and Aboriginal peoples were to recognize each others concerns and cooperate on a pragmatic basis.
The existence of aboriginal title in Canada was confirmed by the Supreme Court of Canada (S.C.C.) in 1973 in Calder v. A.G. British Columbia, Although the Court was evenly divided on whether the Royal Proclamation of 1763 applied in British Columbia, or whether aboriginal title to the land in question had been extinguished by Colonial laws, there was agreement that aboriginal title exists as a legal right derived from historic occupation and possession of tribal lands, where not extinguished by appropriate legislation. That is to say aboriginal title does not depend exclusively on the Proclamation.
In Guerin (1985) and succeeding cases, the Supreme Court has referred to aboriginal title in land as sub generis, or unique. Aboriginal people have been found to have rights of occupancy, possession and use, but not ultimate ownership. This flows from early decisions of the Supreme Court of the United States, relied upon in Canada, to the effect that the European discoverer nations had the right to claim sovereignty over newly "discovered" lands even though they were quite aware that those lands were already inhabited. Bartlett (1991:5) described the aboriginal title that is recognized by Canadian courts as "a pragmatic accommodation of the facts of European settlement and aboriginal occupation of the land". This is an issue which perhaps will be re-examined by the courts in the future. The reason for noting it here is that it has led to recognition of the Crown's special fiduciary responsibilities to Aboriginal people.
In the Queen v. Sparrow (1990), a case involving an alleged violation of a food fishing licence by an Aboriginal fisherman in British Columbia, the Court held that there was an aboriginal right to fish, that the Crown's intention must be clear and plain if it intends to extinguish an aboriginal right, and that aboriginal rights cannot be eliminated by regulation. The S.C.C. also concluded that aboriginal rights still existing in 1982, when they became constitutionally protected, should be interpreted flexibly to allow their evolution over time.
In British Columbia, most of which remains uncovered by treaties, the extent of aboriginal title in traditional lands, including control over the forest resources, remains to be determined through the treaty negotiation process. An important step was taken on June 25, 1993 which appears to have removed a backward step taken in 1991. The decision of the B.C. Supreme Court in the land claim case of the Gitksan and Wet'suwet'en, Delgamuukw v. R., was partly overturned. The original decision had included the judgment that all aboriginal rights had been extinguished by pre- Confederation colonial legislation. Although the split decision of the B.C. Court of Appeal did not recognize aboriginal ownership or proprietary rights to the traditional lands in question, it did recognize unextinguished non-exclusive aboriginal rights of use and occupation of a special nature. The eventual extent of these rights awaits further definition by the courts or the negotiation of land claim settlements.
In addition to cases involving aboriginal rights in non-treaty parts of Canada, there have been a number of key cases that have affirmed aboriginal interests in natural resource uses protected by treaty. Two significant cases involved the recognition of certain peace agreements between the British military and aboriginal groups as treaties. These were Simon v. R. in 1985 in Nova Scotia and R. v. Sioui in 1990 in Quebec. In the first case, a Micmac's right to hunt was recognized, and in the second, the Hurons' right to practice their religion and customs in their tradition area, now a provincial park, were preserved. As Bartlett (1991:47) has pointed out, both these cases affirmed the S.C.C.'s position that where there is doubt in interpretation of treaties and statutes the issue should be resolved in favour of the Aboriginal people.
Treaty rights concerning hunting and fishing and the application of federal or provincial regulations have been confirmed or clarified in a number of court cases that need not be explored in detail here. We note only two cases to show that judicial interpretations of treaty rights are not cut and dried and, in some instances, are still evolving. An example of the first category is found in the 1990 Horseman decision. In this case a Treaty 8 Indian had killed a grizzly bear in self-defence while hunting for food. Later he obtained a grizzly bear hunting licence and sold the bear skin. Questions before the S.C.C. were whether the section of the Alberta Wildlife Act prohibiting sale of wildlife without a licence applies to Treaty 8 Indians and whether the 1930 Natural Resources Transfer Agreement restricted the hunting rights of Treaty 8 Indians to hunting for food. Treaty 8 affirmed the Indians' right "to pursue their usual vocations of hunting, trapping and fishing .... subject to such regulations that may from time to time be made by the Government of the country". In a four to three decision the S.C.C. held that the Resources Transfer Agreement had diminished the original treaty right that included hunting for commercial purposes to one that provided for hunting only for "food". Therefore, the section of the Wildlife Act prohibiting sale of wildlife products without a licence applied to the Indian. The dissenting position argued that treaties and statutes relating to Indians should be given a fair and liberal construction in favour of the Indians and that, keeping in mind the commitment made to the Indians in treaty negotiations, the term hunting "for food" in the Transfer Agreement should be understood to include the right to exchange meat or skins for other subsistence items. In this scenario the Wildlife Act would not apply to Mr. Horseman.
Alberta uses the decision in this case to continue to justify its position that Indian treaty rights to wildlife are restricted to hunting for family food supplies. Unfortunately, Alberta's position exemplifies the minimalist approach that has plagued relations between governments and Aboriginal peoples for so long.
Another recent case involving alleged infractions of the Fisheries Act and Regulations demonstrates how the decision of the S.C.C. in Sparrow has begun to influence interpretation of treaty rights. In Bombay v. R. (1993) two Treaty 3 Indians were charged with fishing out of season, fishing with a prohibited net, and selling fish out of season. In appealing their convictions, the Bombays relied on s. 35(1) of the Constitution Act, 1982, to protect their existing treaty rights and on the Sparrow decision that laid down the requirement that a legislative or regulatory infringement on aboriginal rights must be justified. The Court adopted the view that the Sparrow decision relating to aboriginal rights is also applicable to treaty rights. Consequently, the Ontario Court of Appeal quashed the convictions, noting that the Crown had not made a specific effort to justify its legislation and regulations. This case demonstrates that the Sparrow principle requiring justification of restrictions to aboriginal rights also applies to treaty rights, including those that go beyond fishing merely for food.
In Guerin the S.C.C. established that the Crown has a trust-like fiduciary responsibility to Indians in the disposal of lands reserved for their use. Although the case was restricted to the leasing of lands that were part of an Indian reserve and dealt in detail with the federal government's obligations under the Indian Act, comments in Mr. Justice Dickson's judgment suggest that the Crown's fiduciary duties extend beyond status Indians and their reserve lands. He noted that, in his opinion, Indian interest in reserve land and unrecognized aboriginal title in traditional tribal lands is the same. That is to say, the Indian interest in the land is a legal right predating the Royal Proclamation, the Indian Act, or other legislative provision. The fiduciary responsibilities of government to Indians respecting reserve lands might therefore extend to aboriginal rights in traditional lands in Canada, if not extinguished by treaty or legislation with a clear intent.
This turned out to be the situation as determined by the S.C.C. in Sparrow. In this case, the Court determined that the Government has a trust-like fiduciary relationship with Aboriginal people and that this fiduciary duty is incorporated in S.35(1) of the Constitution Act, 1982 that recognizes and affirms existing aboriginal and treaty rights. The Court also determined that any restriction of aboriginal rights must have a valid objective and be justified. It found that restrictions of aboriginal rights to fish could be justified if their objective was the conservation of the resource. It went on to indicate that conservation measures should be designed to have as little effect as possible on aboriginal rights; that aboriginal groups to be affected by conservation measures should be consulted about the proposed measure; and that where expropriation of a right occurs, fair compensation should be available.
Although the 1991 Delgamuukw decision of the B.C. Supreme Court has just been superseded by the Appeal Court, it did confirm the fiduciary obligations of the Crown to include protection of aboriginal sustenance uses of unoccupied Crown lands. Aboriginal activities given a degree of protection would include such things as hunting and gathering; harvesting wood for buildings, canoes, totems and firewood; and maintaining sacred and ceremonial places. That decision has been strongly criticized, however, in that it did not provide for the evolution of aboriginal rights over time as had been recognized by the S.C.C. in Sparrow.
As Bartlett (1991) has pointed out, the S.C.C. has extended the Crown's fiduciary obligations to include surrenders of aboriginal title in non-reserve lands. In the Bear Island Foundation v. A.G. Ontario (1991) case dealing with the land claim of the Teme-Augama Anishnabai in Ontario, the Court determined that the Crown had failed to fulfil some of its obligations under arrangements subsequent to a treaty and therefore had breached its fiduciary obligations. The Crown's fiduciary duties extend, therefore, to Indian reserves, aboriginal rights in non-treaty areas and surrenders of aboriginal title in non-reserve lands.
The Crown's fiduciary obligations to Aboriginal peoples has been explored by a number of experts. Turpel (1992) described the implications as "nothing short of vast". She suggests that in Sparrow, the S.C.C. has recognized a general constitutional fiduciary responsibility of the Crown in all types of relations with Aboriginal peoples. The responsibilities extend to all Aboriginal peoples, not only those identified as Indians. The provincial governments as well as the federal government are bound by the responsibility.
Noting that resource development is a major objective of provinces, Bartlett (1991:35) argues that, where aboriginal title has not been extinguished ". . . the changed constitutional setting in Canada, and in particular the enactment of the Constitution Act, 1982, now requires an accommodation between aboriginal title and resource development if development is to proceed". He also argues that where treaty land and resources entitlements have not been fulfilled, the Aboriginal people involved should be successful in obtaining injunctions to prevent provincial disposal of resources pending completion of treaty obligations. NAFA submits that the same requirement for accommodation exists between treaty rights for hunting and fishing on traditional lands and resource development if the resource development is to proceed.
The determination of the Crown's fiduciary duty to Aboriginal people has led to improved access to fish and wildlife resources and has had some influence on the way provinces manage forests. One important legal decision dealing with Indian treaty rights to resources off reserves was made in British Columbia in 1989. In Claxton v. Saanichton Marina Ltd. the British Columbia Court of Appeal upheld an Indian's right "to carry on fisheries as formally" according to treaty. The case involved the licensing of a firm by British Columbia to build and operate a marina in an ocean bay traditionally used by a band that had entered one of the Douglas treaties on Vancouver Island. Bartlett (1991) quoted the judgment as stating:
There is no question that if the licence of occupation derogates from the treaty right of the Indians, it is of no force and effect. The province cannot act to contravene the treaty rights of Indians, nor can it authorize others to do so.
The implications of this decision with respect to a forest industry operating in the traditional hunting and fishing area of treaty Indians is not clear cut. Logging would certainly disrupt wildlife habitat and populations. Depending on the nature of the logging operation (its size, shape, degree of clearcutting, recent logging history of nearby areas, etc.) the disruption might be severe and last for many years. On the other hand, with careful planning taking wildlife habitat requirements into consideration, disruptions could be minimal and only of a temporary nature. For some species it could even be beneficial. With respect to aboriginal or treaty rights to hunt, trap and fish on traditional lands that have not become "occupied" for other uses, a court would decide, in all likelihood, that an area was "occupied" during a logging operation and perhaps for a short period thereafter. While an aboriginal right of use would have been infringed upon, it would not have been extinguished; nor would treaty rights have been abrogated. If, however, the damage to wildlife habitat were to persist long after logging operations had ceased and the area had reverted to "unoccupied" status, another issue arises. The aboriginal or treaty right to hunt and fish as usual implies the right to find the wildlife resources about as plentiful as they had been before the logging disturbance. If it were otherwise, the treaty right would be empty and the honour of the Crown not upheld.
The implication is that before licensing an area for timber harvesting, a province has a fiduciary responsibility to ensure that forest management plans are in place to integrate the traditional resource use requirements of the local Aboriginal people with the timber management objectives of the province and the licensee. According to the Sparrow decision, that fiduciary responsibility also includes the requirement to consult with the Aboriginal people involved and to ensure that impacts on their forest uses are kept to a minimum.
In Sparrow the S.C.C. gave only limited guidance on what it meant in saying that a government's justification analysis of proposed regulations should include the question of consultation with Aboriginal groups to be affected. The judgment said simply that "Aboriginal peoples, with their history of conservation-consciousness and interdependence with natural resources, would surely be expected, at the least, to be informed..." At the same time, however, the Court said that the justification analysis should include the question of whether there was as little infringement as possible in order to achieve the desired result of the regulation. NAFA submits that it would be difficult to ensure the latter without full consultations for the following reasons. First, the S.C.C.'s provisions for justifying governmental regulations would extend to the justification of industrial development plans on Crown lands, including forest management plans. Second, merely being informed of proposed resource exploitation plan on traditional lands would be inadequate to any Canadian community, especially Aboriginal communities. The latter see themselves as part of the environment, dependent on its productivity of wildlife, particular species of trees, medicinal plants, etc., as well as special sites of cultural and spiritual significance. Government could not comprehend these values without full two-way consultations.
As we shall outline through examples, many provincial governments and industrial firms have begun this process of consultation. Nevertheless, Aboriginal communities feel that the consultation process does not go far enough. They believe that their treaty or aboriginal rights should be recognized to the extent that they should be included as partners in decision making. Aboriginal peoples' rights to traditional lands are sub generis or unique. They go beyond the concerns of any Canadian interest group or stakeholder. Aboriginal communities feel that their special interests can be fully recognized only if provinces were to invite the communities to participate fully in a decision-making process.
The provinces, on the other hand, are jealous of their jurisdiction over natural resources. There is the rub. Provinces insist that their ultimate jurisdiction be recognized. NAFA proposes that decision-making roles can be shared with Aboriginal communities. Once objectives and broad management principles have been agreed upon, the issue of final authority is less problematic and authority can be shared. We will describe examples where governments have taken steps to involve Aboriginal groups in decision-making without losing their ultimate control.
Finally, a word of caution. There have been occasions when provinces have attempted proactive policies respecting Aboriginal people only to have them overturned by the courts. In Manitoba, for example, the province initiated a policy in the 1980's to give Indian bands priority in the licensing of rice harvesting in northern lakes where rice had been introduced artificially. This attempt to assist Indians was successfully challenged in court under the Charter of Human Rights in 1988. Provincial governments are faced with competing interests from all sides and cannot always find ways to respond fully to aboriginal interests.
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