|
The
Purpose of Metis Rights
5. R. v. Van der Peet concemed status Indians.
In that context only, Lamer CJ described the purpose of s. 35(1):
the aboriginal rights recognized and affirmed
by s. 35(1) are best understood as, first, the means by which the Constitution
recognizes the fact that prior to the arrival of Europeans in North America
the land was already occupied by distinctive aboriginal societies, and
as, second, the means by which that prior occupation is reconciled with
the assertion of Crown sovereignty over Canadian territory. The content
of aboriginal rights must be directed at fulfilling both of these purposes...
R. v. Van der Peet, [1996] 2 S.C.R. 507, at para.
4
6. Van der Peet's
antecedents and progeny - Sparrow, Gladstone, Adamsand Coté
-- also concemed status Indians. Lamer CJ recognized ( Van der
Peet, para. 67) that the purpose of aboriginal rights he stated "is
not necessarily determinative of the manner in which the aboriginal rights
of the Metis are defined" because "the history of the Metis, and the
reasons underlying their inclusion in the protection
given by s. 35, are quite distinct from those of other aboriginal peoples
in Canada".
R. v. Sparrow, [1990]
1 S.C.R. 1075, R. v. Gladstone, [196] 2 S.C.R. 723,
R. v. Adams, [1996] 3 S.C.R. 101, R. v. Cote, [1996] 3 S.C.R.
139
7. Accordingly, in adjudicating Metis aboriginal
rights under s. 35, this Court is required to expound an incompletely
manufactured constitutional doctrine where many gaps necessarily exist.
8. In the Provincial Judges Reference and Secession
Reference, the Supreme Court made an important
departure for constitutional adjudication which, like this case, advances
legal doctrine into significantly uncharted domains. The Court noted
that "certain underlying principles infuse our Constitution and breathe
life into it." The Court continued:
The principles assist in the interpretation
of the text and the delineation of spheres of jurisdiction, the scope
of rights and obligations, and the role of our political institutions....
Given the existence of these underlying
constitutional principles, what use may the Court make of them? ...
In the Provincial Judges Reference, at para. 104, we detemmined
that the preamble "invites the courts to tum those principles into the
premises of a constitutional argument that culminates in the filling
of gaps in the express temms of the constitutional text".
Underlying constitutional principles may
in certain circumstances give rise to substantive legal obligations
(have "full legal force", as we described it in the Patriation Reference,
supra, at p. 845), which constitute substantive limitations upon
govemment action. These principles may give rise to very abstract and
general obligations, or they may be more specific and precise in nature.
The principles are not merely descriptive, but are also invested with
a powerful nommative force, and are binding upon both courts and govemments.
"In other words", as this Court confimed in the Manitoba Language
Rights Reference, supra, at p. 752, "in the process of Constitutional
adjudication, the Court may have regard to unwritten postulates which
fomm the very foundation of the Constitution of Canada.
Reference Re Secession of Quebec, [1998]
2 S.C.R. 217, at paras. 50-4
Reference Re Provincial Judges, [1997]
3 S.C.R. 3
9. The purposes of sec. 35(1) identified as
relevant to status Indians in Van der Peet, its antecedents and progeny,
are infused by underlying constitutional principles. These principles
can give rise to other purposes in other contexts. These principles
can identify the purposes, and interpret the scope, of Metis aboriginal
rights protected by s. 35(1).
10. Principles. The underlying
constitutional principles relevant to this case are: aboriginal persistence,
multi-nationality and inter-societal justice.
11. (A) Aboriginal persistence. When
British colonizers encountered aboriginal nations in North America,
British policy was to leave aboriginal nations to live apart as distinct
societies. The aboriginal societies were not absorbed into colonial
society.
12. This policy applied equally to the distinctive
Metis societies that formed in the 17th,18th and 19th centuries across
present-day Canada. Regarding Rupert's Land, the huge territory granted
to the Hudson's Bay Company in 1670, the Company's Governor, Sir George
Simpson, testified before the British House of Commons in 1857:
[Mr. Grogan] What privileges or rights
do the native Indians possess strictly applicable to themselves? -[Simpson]
They are perfectly at liberty to do what they please; we never restrain
Indians.
Mr. Groan] Is there any difference between their
position and that of the half-breeds? - [Simpson] None at all. Thev
hunt and fish. and live as they please....
[Lord Stanley] You exercise no authority
whatever over the Indian tribes? [Simpson] None at all ...
[Mr. Bell] Do you mean that, possessing
the right of soil over the whole of Rupert's Land, you do not consider
that you possess any jurisdiction over the inhabitants of that soil?
-[Simpson] No, I am not aware that we do. We exercise none, whatever
right we possess under our charter.
House of Commons, Report of the Select
Committee on the Hudson 's Bay Co . ( 1857)
Minutes of Evidence at 91-2, emphasis added. (discussed
in Kent McNeil, Aboriginal Rights in Canada: From Title to Land to
Territorial Sovereignty (1998), 5 Tulsa J. Comp. & Int'1 L.
253, 295)
13. The principle of aboriginal persistence
inspires Constitution Act, 1982, s. 35 by attuning the constitutional
framework flowing from it to the policy to promote the continuance of
distinct aboriginal societies.
14. (B) Multi-nationality. The
assertion of British sovereignty in the new world was accompanied by
a constitutional regime that regulated the relations between the Aboriginal
nations and colonial societies. As explained by Professor Slattery,
the doctrine of aboriginal rights
is a distinctive body of custom
generated by the intensive relations between indigenous peoples and
the British Crown in the seventeenth and eighteenth centuries. This
body of custom coalesced into a branch of British imperial law, as the
Crown gradually extended its protective sphere in North America. Upon
the emergence of Canada as an independent federation, it became part
of the fundamental Canadian common law that underpins the Constitution.
Brian Slattery, Making Sense of Aboriginal
and Treaty Rights (2000), 79 Can. Bar Rev. 196
15. The principle of multi-nationality inspires the
doctrine of aboriginal rights by attuning the constitutional framework
flowing from it to the practical requirements of promoting good inter-societal
relations within a single multi-national state. The principle informs
institutions designed to regulate the intercourse between the various
societies inter se, and
also between each nation and the State.
16. The multi-nationality principle is probably
responsible for the compulsion both Judges below felt to comment on
the need for negotiations, rather than blunt criminal prosecution, to
recognize and affirm the existing aboriginal rights of the Ontario Metis.
17. (C) Inter-societal justice. Reconciliation
of aboriginal societies to the sovereignty of the Crown is predicated
upon basic principles of inter-societal justice. This principle will
not allow s. 35(1) to be interpreted in a manner that simply perpetuates
historical injustices visited on aboriginal people in colonial times.
It calls for a new departure, leading to a
just settlement for aboriginal societies.
R. v. Coté, [1996]
3 S.C.R. 139, at para. 53 ("therespondent's proposed interpretation
risks undermining the very purpose of s. 35(1) by perpetuating the historical
injustice suffered by aboriginal peoples at the hands of colonizers
who failed to respect the distinctive cultures of pre-existing aboriginal
societies.")
R. v. Sparrow, [1990]
I S.C.R. 1075, at para. 54, citing Lyon, An Essay on Constitutional
Interpretation (1988), 26 Osg. H.L.J. 95 ("Section 35 calls for
a just settlement for aboriginal peoples. It renounces the old rules
of the game ...")
Royal Proclamation (Oct.
7, 1763) ("And whereas it is just and reasonable, and essential
to Our Interests and the Security of Our Colonies ..." emphasis added.
The fundamental tenets of British policy then follow.)
Dumont v. Canada, [1988]
3 C.N.L.R. 39 (Man. C.A.) (per O'Sullivan, J.A.: "it is evident that
since the advent of the age of nationalism and democracy world society
has failed to develop satisfactory rules for the recognition of communal
minority rights and for the balancing of such rights with the common
good of society as a whole [...] it is in the development of law to
deal with claims of "peoples" that lies the best hope of achieving justice
and harmony in a world full of minority groups.")
18. The principle of inter-societal justice inspires
the doctrine of aboriginal rights by attuning the constitutional amework
flowing from it to the need to modify customs, practices and rules that
cannot be justified, taking into account the subjective perspectives
of the various societies, and the objective requirements of the multi-national
state.
19. The principle inter-societal justice is probably
responsible for this important injunction of the Supreme Court of Canada:
Courts adjudicating aboriginal rights
claims must, therefore, be sensitive to the aboriginal perspective,
but they must also be aware that aboriginal rights exist within the
general legal system of Canada. To quote again Walters, at p. 413: 'a
morally and politically defensible conception of aboriginal rights will
incorporate both [aboriginal and non-aboriginal] legal perspectives'.
R. v. Van der Peet, [1996]
2 S.C.R. 507, at para. 49
|
