Canada’s courts and Indigenous rights

2017-08-23

in Canada, Economics, History, Law, The environment, The outdoors

One privilege during my time at U of T was to take Peter Russell’s class on Canada’s history as a series of incomplete conquests in 2013.

He taught the class for several years running to a mixed group of undergrads and grad students, using it partly to help him refine the new history of Canada he was writing.

That book has now been released: Canada’s Odyssey: A Country Based on Incomplete Conquests.

The paper I wrote for the class was called “The judiciary in the lead: Aboriginal politics in Canada’s
post-Charter era
“. Russell addresses the subject in the finished book:

The Supreme Court of Canada, as the Powley case demonstrates, continues to be a major player in the resurgence of aboriginal peoples. This is true in other common law countries with colonized native peoples within. The high courts of Australia, New Zealand, and the United States are now playing an important role in shaping the rights of Indigenous peoples in their countries. Indeed the Supreme Court of Canada’s decision in Calder, which was instrumental in changing Canada’s Aboriginal policy in the 1970s, was the crucial precedent in the Australian High Court’s Mabo decision, which changed Australian policy in the 1990s. For Indigenous peoples, as small minorities within democratic countries, resorting to the courts to vindicate rights and defend interests makes good sense, especially when the courts are rooted in the common law tradition of judicial independence and law development, and their judges are no longer soaked in the racism of earlier settler generations. The courts in all four common law countries, in varying degrees, have been relatively liberal in responding to the legal claims of Aboriginal peoples. Their decisions have often been out front of elected politicians, forcing changes in the policies of their governments. But their agency as instruments of full decolonization is limited. They are still the “white man’s courts,” not only in their composition, but also in the justices’ belief that Indigenous peoples are subject to the overriding sovereignty of the settler state.

The Supreme Court of Canada has made its most important contributions to advancing Aboriginal rights in decisions relating to native title. The Court’s 1997 decision in Delgamuukw confirmed that native title was one of the existing Aboriginal rights recognized in section 35 of the Constitution Act, 1982, and spelled out some of its features. Native title is communal, rather than individual. It confers on the society that it has full ownership of the land and its resources, including subsurface minerals. That was the good news. But much of the Court’s treatment of native or Aboriginal title has dealt with its limitations. First, Aboriginal people cannot sell any part of their lands on the private market; native title land can only be sold to the Crown — that is, the Government of Canada. A second limitation smacks of paternalism: the Aboriginal people that hold native title can develop the land in non-traditional ways, providing a development does not undermine their historical attachment to the land. The Supreme Court gave two examples of what it would not allow a native community to do to its own lands: strip-mine a hunting ground or pave over a burial ground for a parking lot. A third limitation underlines the continuing colonialism in the Court’s thinking. In common law, native title is understood as a “burden” on the Crown’s sovereignty, and in discharging the Crown’s — that is, the federal or provincial government’s — responsibilities to the larger community, there might be compelling and substantial circumstances that could make an infringement of native title justifiable. Chief Justice Lamer, who wrote the principal majority opinion, asserted somewhat casually that “the development of agriculture, forestry, mining, hydroelectric power, and general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations” — any of these — “can justify the infringement of aboriginal title.” The Court’s purpose in fashioning this new law, the chief justice explained, was “to reconcile the pre-existence of aboriginal society with the sovereignty of the Crown.”

A duty to consult native owners and try to accomodate their interests before pushing through projects on their lands might be better than nothing, but it is still a far cry from affirming Aboriginal peoples’ constitutional right to protect and develop their lands and resources.

Russell, Peter. Canada’s Odyssey: A Country Based on Incomplete Conquests University of Toronto Press, 2017. p. 434–6

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