The Environment and Aboriginal Rights - LawNow Magazine

The Environment and Aboriginal Rights

In my inaugural column for LawNow (here) I suggested five reasons that environmental law can be challenging to understand. One of those reasons was that it requires some understanding of Aboriginal law, a complex subject in its own right.

Even if I were up to the task, it would be impossible to provide even an overview of Aboriginal law in a short column such as this. Instead, I will look at five things that I think give some context to the discussion.

First, Aboriginal people have rights that pre-date the formation of Canada. Some of these rights exist because of their prior occupation of the land. Some exist, or are at least first recognised, because of the Royal Proclamation, 1763, issued by King George III of England following the Seven Years War with France. This Proclamation defined the relationship between the British government and Aboriginal people who then lived in the areas being settled by the British. It is cited as being the basis for the proposition that Canadian governments must deal with First Nations as one nation to another, not as a government to its subjects.  Under the Proclamation, Aboriginal land remains Aboriginal land unless it is “ceded” (meaning conquered or surrendered) or purchased.  Vast areas of Canada are unceded.

..relations between Canada’s Aboriginal and non-Aboriginal peoples are complex, evolving and dynamic. There are ongoing debates in society and in the courts about the nature and extent of Aboriginal rights. Second, Aboriginal people (defined as Indian, Inuit and Métis peoples), collectively, have rights that are enshrined in Canada’s Constitution. This includes section 25 of the Constitution Act, 1982 which says that the Charter of Rights and Freedoms does not remove any rights of aboriginal people, including any rights that originate in the Proclamation of 1763. Section 35 begins by saying that the “existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed”. Aboriginal people are then given a right to participate in any discussions about amending these provisions or altering the federal government’s constitutional authority over Aboriginal matters.

Third, Aboriginal rights are affected by treaties made both before and after Confederation. What the treaty that applies to the area says is important. The treaties are not all the same and they do not cover all land in Canada.  In the Maritime Provinces “peace and friendship” treaties were signed before Confederation but rights to land were not given up. Between 1871 and 1921, eleven treaties (called the “numbered treaties”) were signed, covering land from Ontario to Alberta and taking in the north-east section of British Columbia and the western part of the Canadian North. The rights of Aboriginal people in the majority of British Columbia not covered by any treaty and the areas of Canada covered by the numbered treaties are not the same. In any area, to understand Aboriginal rights to protect land, and what the obligations of government are, you must determine if a treaty is in place and what it says. When the Treaty was created can be important. For example, Treaty 8, covering most of northern Alberta and smaller adjacent areas in British Columbia and Saskatchewan, was signed in 1899 after the federal government passed the North West Irrigation Act to promote settlement in 1895. All the other numbered treaties were signed prior to 1895. The result is that aboriginal peoples who are parties to Treaty 8 have a clearer claim to certain water rights than do those peoples subject to the other seven numbered treaties.

Fourth, the Supreme Court of Canada has ruled upon the existence, extent and nature of the rights of aboriginal people in a number of important cases.  At the risk of over-simplifying, the following are some of the principles that have emerged from the cases between the 1970s and today:

  • Aboriginal title to land is a unique concept. It’s a communal right, not an individual one. If established, it brings with it a variety of rights related to the land, including the rights to use and occupy the land and to participate in decisions about what happens on the land;
  • Even if title isn’t established, Aboriginal groups may have rights to continue their traditional uses of the land which could include hunting and fishing. Anything that makes those activities impossible (such as resource development) could be banned;
  • Aboriginal rights are not absolute. Legislation can infringe on Aboriginal rights if the objectives of the legislation are valid (such as environmental protection, preservation of species at risk, resource development or settlement);
  • Establishing title requires historical proof of continuous occupation of the land but it can still be established by nomadic groups;
  • The Crown has an ongoing duty to consult with Aboriginal groups during environmental assessment processes;
  • The “honour of the Crown” must always be upheld and this requires consultation with and accommodation of First Nations even before Aboriginal title is proven;
  • The constitutional obligation to consult is the Crown’s responsibility, not the responsibility of any group proposing a development;
  • Once Aboriginal title is proven, unless there is a compelling public purpose, consent must be obtained to do anything on the land that would otherwise interfere with the rights of First Nation that hold title.

..Aboriginal people (defined as Indian, Inuit and Métis peoples), collectively, have rights that are enshrined in Canada’s Constitution. Fifth, relations between Canada’s Aboriginal and non-Aboriginal peoples are complex, evolving and dynamic. There are ongoing debates in society and in the courts about the nature and extent of Aboriginal rights. Treaty and land claims negotiations are still taking place. There are debates about the appropriate extent of resource and commercial development, even between and within Aboriginal groups. There are concerns about drinking water quality in many Aboriginal communities and debate over whose responsibility it is to correct the problems.  There are significant differences in wealth between Aboriginal groups. High unemployment and significant poverty plague many communities.

Canada has not yet fully dealt with or implemented the recommendations of the Truth and Reconciliation Commission, made in 2015 (available here), whose report began with the words “For over a century, the central goals of Canada’s Aboriginal policy were to eliminate Aboriginal governments; ignore Aboriginal rights; terminate the Treaties; and,  through  a  process  of  assimilation,  cause  Aboriginal  peoples  to  cease  to  exist  as  distinct  legal,  social,  cultural,  religious,  and  racial  entities  in  Canada.”

All of these factors affect the claims to rights that are made and the resulting complexity of the interactions between Aboriginal and environmental law.




Jeff Surtees
Jeff Surtees
Jeff Surtees, BComm, JD, LLM, is the Executive Director of the Centre for Public Legal Education Alberta.

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