Aboriginal and Indigenous Law: Recent developments of importance

This article was provided by Olthuis Kleer Townshend LLP

This year, there was one very significant Supreme Court of Canada decision that touched on Aboriginal rights and Indigenous law. In Renvoi à la Cour d'appel du Québec relatif à la Loi concernant les enfants, les jeunes et les familles des Premières Nations, des Inuits et des Métis (“the C-92 reference”), the Supreme Court of Canada upheld An Act respecting First Nations, Inuit and Métis children youth and families, as a valid exercise of Parliament’s power under s. 91(24).  This decision is an important win for the many First Nations across Canada who are using the Act as a tool to facilitate the exercise of their own inherent rights to self-government. 

Alongside this, there were several significant appellate and trial level decisions, including R. v. Montour and White; The Nuchatlaht v. British Columbia; Chippewas of Nawash Unceded First Nation v. Canada; and Takuhikan c. Procureur général du Québec, among others.

In this update, I focus[1] on the implications of the C-92 reference and lower court decisions released in the last year on the role of Indigenous law and law-making in the jurisprudence governing section 35 of the Constitution Act, 1982; the status of UNDRIP in Canadian law; and Aboriginal title.

Indigenous law, jurisdiction and section 35 doctrine

One emerging trend this year is the increasing role of Indigenous law (the law of Indigenous peoples themselves, arising from their inherent rights) in shaping the doctrines of Aboriginal law (the Canadian law doctrines that apply to Indigenous peoples). 

The C-92 Reference

In the C-92 reference, the Supreme Court of Canada was asked to decide whether the An Act Respecting First Nations, Inuit and Métis children, youth and families, SC 2019 c 24 (“the Act”) was ultra vires (beyond the powers of Canada).  

The Act is a federal statute which attempts to address the grossly disproportionate overrepresentation of Indigenous children in the child welfare system by supporting Indigenous peoples in exercising their inherent jurisdiction over their children and families.  Addressing this overrepresentation was a major focus of the Truth and Reconciliation Commission (TRC) Report.[2]  TRC Call to Action Four specifically called on the federal government to “enact Aboriginal child-welfare legislation that establishes national standards for Aboriginal child apprehension and custody cases.”[3]

The Act has three key components.

First, it affirms that Indigenous people hold an inherent right of self-government in relation to child and family services that is protected by s. 35 of the Constitution Act, 1982,[4] and provides a framework for Indigenous peoples to exercise their jurisdiction over child and family services if and when they choose.

Second, it establishes federal standards for child and family services across Canada, which apply to both provincial/territorial and Indigenous laws.[5]

Finally, it sets out a mechanism to deal with conflicts between Indigenous laws, federal laws and provincial/territorial laws.  Generally, if there is no conflict, all three systems of law apply. If certain conditions are met, the Act says Indigenous laws will “have the force of federal law” – which means they prevail over provincial/territorial laws if there is a conflict.[6]   If there is a conflict between an Indigenous law and a federal law, the Indigenous law prevails except in relation to the federal minimum standards set by the Act and the Canada Human Rights Act.[7]

The Attorney General of Quebec brought a reference asking the court whether the Act was outside Parliament’s jurisdiction and reached too far into provincial jurisdiction.  He also argued that s. 8 and 18 to 26 of the Act were invalid because they were an attempt to unilaterally amend s. 35 of the Constitution Act,1982 by creating a right to self-government where the courts had not declared one and where none existed. Both Canada and many Indigenous interveners argued at the Supreme Court for a robust vision of section 35 that included self-government and Indigenous law-making power. 

The Supreme Court held that the Act fell entirely within Parliament’s power over “Indians and Lands Reserved for Indians” pursuant to section 91(24) of the Constitution Act, 1867. But the Supreme Court decided not to address whether section 35 includes a right to self-government in child and family services.[8] However, its reasons sent a signal that it may be open to arguments about a section 35 right to self-government in this area in the future.  The Court noted its own decision in R v. Pamajewon had found that  “self‑government, insofar as they exist, ‘cannot be framed in excessively general terms’ and cannot extend to a matter — for example, the regulation of gambling — that is not an integral part of the distinctive culture of the First Nations in question.”[9]  It then went onto note that “the Court has never had to consider a matter as fundamental to the culture and identity of Indigenous peoples as the field of child and family services.”[10]  In my view, this sends a signal that section 35 may include, at minimum, law-making powers over areas that are core parts of Indigenous peoples’ culture and identity.

R v. Montour and White

In R. v. Montour and White, the Quebec Superior Court went significantly further, holding that a major change was necessary to refocus the test for s. 35 Aboriginal rights around protecting Indigenous laws and legal systems.

The current test for establishing section 35 Aboriginal rights in Canadian law was set out by the Supreme Court of Canada in R v. Van der Peet. The Van der Peet test says that “in order to be an aboriginal right an activity must be an element of a practice, custom or tradition [that was] integral to the distinctive culture of the aboriginal group claiming the right” before contact with Europeans.[11]

This test has been criticized – justifiably, in my view – for its troubling assumptions and harmful effects. For example, it puts mainstream courts in the position of deciding what was truly integral to Indigenous Nations before contact with Europeans – a question which many Canadian courts and judges lack the experience and institutional competence to properly determine.[12] The Van der Peet test encourages reliance on stereotypes about what makes an Indigenous Nation “what it was” prior to contact,[13] and treats cultures as a conglomerate of parts, some of which are integral and some of which are not, rather than as inter-dependent systems.[14] It has the effect of “freezing rights” in a way that “ignore[s] the dynamic nature of [Indigenous]” peoples and their laws.[15]  And framing the test around the moment of contact with Europeans suggests this moment has some particular significance, which seems racist and Euro-centric. This test has led to body of case law about section 35 Aboriginal rights focused almost exclusively on recognizing site-specific harvesting rights, rather than other fundamental rights that belong to Indigenous peoples because they are Peoples – like rights to self-government, self-determination and law-making.[16] 

The Van der Peet test also creates some confusion in the legal doctrine. Prior to the Crown’s assertion of sovereignty, Indigenous Nations were self-governing political entities with complete sovereignty and jurisdiction.[17] When the British asserted sovereignty in what is now Canada, the common law preserved these customary legal orders and the rights and responsibilities they created as common law rights.[18]  Section 35(1) states that the “existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”  In Delgamuukw, the Court held that the effect of section 35(1) was to constitutionalize all common law Aboriginal rights.[19]  However, according to Van der Peet, only customs, practices and traditions that are sufficiently “integral” to Indigenous cultures prior to contact are in fact, protected by section 35.  In other words, the Van der Peet test likely does not capture a significant number of Aboriginal rights, arising from Indigenous legal systems, that Delgamuukw has suggested should be protected under section 35.   It is hard to know how to square these two approaches.

In Montour and White, the Quebec Superior Court swept aside the Van der Peet test, in favour of a new approach rooted in Indigenous law. The Court explained that it was justified in departing from Van der Peet because (1) the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) and the federal United Nations Declarations on the Rights of Indigenous Peoples Act, SC 2021, c 14 (“UNDRIP Act”) had introduced a new legal issue about the test’s conformity with UNDRIP,[20] and (2) that there had been fundamental changes in the “parameters of the debate” around Aboriginal rights, arising from UNDRIP, the TRC and other events.[21]

In light of this, the Court proposed a new three-part test for identifying s. 35 Aboriginal rights: first, the Court must identify the collective right that an applicant invokes; second, the applicant will have to prove that the this right is protected by the  traditional legal system of their community; and third, the applicant will have to show that the practice or activity at issue in the litigation is an exercise of that right.[22] The Court did not define “traditional legal system”, but suggested that historical evidence, evidence about oral tradition, or evidence from a Chief testifying about “his deep knowledge of his culture” could all be relevant to determining if a right is part of the legal tradition of an Indigenous society.[23]  The Quebec Superior Court’s approach picks up elements of former Chief Justice McLachlin’s dissent in Van der Peet, which noted that “s. 35(1) recognizes not only prior Aboriginal occupation, but also a prior legal regime which persists, absent extinguishment.”[24]

The Quebec Superior Court went onto suggest that some “generic rights” could fit within this new approach. “Generic rights” are those rights that all Indigenous peoples hold if they can satisfy certain criteria, and which have essentially the same content no matter which Indigenous people holds them.  Aboriginal title is an example.[25] The Quebec Superior Court said there is a strong presumption that generic rights are part of the traditional legal system of Indigenous Nations.[26]  The Court found that a right to freely pursue economic development is one generic right that should be presumed to be part of the traditional legal system of Indigenous Nations.[27] 

The Quebec Superior Court’s focus on Indigenous law rather than specific pre-contact practices offers some useful improvements on the Van der Peet test. It is less Eurocentric. It focuses on Indigenous peoples as peoples – and their sovereignty and inherent jurisdiction that survived the imposition of the Crown’s authority upon them.  It drops the bizarre focus of the Van der Peet test on the moment of contact with Europeans.  And it resolves some doctrinal confusion about the proper basis for section 35 rights.

However, the new test also poses some risks, especially for Indigenous peoples whose traditional legal systems have been most heavily impacted by colonialism, and who may therefore find it more difficult to prove in court what their traditional laws are. For this reason, it is important to remember that Indigenous peoples’ inherent law-making authority and jurisdiction is a living entity: it is manifested in the law Indigenous peoples develop and rely on today, not just in their laws as they existed in the past.

The decision in Montour and White has been appealed to the Quebec Court of Appeal. This trial decision raises other significant legal issues, such as the legal status of the Covenant Chain Treaty and the obligations it imposes on the Crown.  As a result, the new approach proposed by the Quebec Superior Court may ultimately be considered by the Supreme Court of Canada.

The status of UNDRIP In Canadian law 

In the C-92 Reference, the Supreme Court of Canada also staked out a new position on the status of UNDRIP in Canadian law. The Court explained that UNDRIP had been “implemented into the country’s positive law” by the UNDRIP Act.[28] The Court explained that the mechanism for this implementation was section 4(1) of the federal United Nations Declaration of Indigenous Peoples Act, which states that UNDRIP is a “universal international human rights instrument with application in Canadian law.” 

The Court did not give a detailed explanation of its conclusion on the status of UNDRIP.  However, it appears to be suggesting that this provision has implemented UNDRIP into Canadian law as if it were a federal statute.  This is a major development in the law.   

Before this case, it was not at all clear that UNDRIP was enforceable in Canadian courts as if it were domestic law. There were some cases that had used UNDRIP as an aid to interpret domestic statutes, and to help interpret the scope of s. 35 of the Constitution.[29]  A  British Columbia Supreme Court case released shortly before the C-92 reference had considered the effect of British Columbia’s Declaration on the Rights of Indigenous Peoples Act, SBC 2019 c 44 and had come to the conclusion that UNDRIP had not been implemented into domestic law by that legislation.[30] The Supreme Court of Canada’s decision makes clear that UNDRIP is already part of Canadian domestic law, and suggests that at least in some circumstances, the rights set out in UNDRIP will be justiciable in Canadian courts as if they were statutory rights.

The Court did not fully tease out the implications of its comments on the status of UNDRIP. For example, the reasons were silent on the extent to which UNDRIP will bind the federal and provincial crowns. This remains to be worked out in future cases.  

Aboriginal Title

Two important Aboriginal title decisions were released this year, Chippewas of Nawash, from the Ontario Court of Appeal, and Nuchatlaht, from the British Columbia Supreme Court. Both have important implications for future Aboriginal title claims, particularly for Indigenous Nations whose territories and title claims include water spaces.

Chippewas of Nawash Unceded First Nation v Canada

The Chippewas of Nawash Unceded First Nation and the Saugeen First Nation (together, known as the Saugeen Ojibway Nation) claim Aboriginal title to the portions of the beds of Lake Huron and Georgian Bay that fell within their Territory.  Their claim was dismissed at trial.[31]  The Ontario Court of Appeal allowed their appeal in part, sending the case back to the trial judge for determination of whether the test for Aboriginal title was met to a smaller portion of the Saugeen Ojibway Nation’s territory.[32]

This case has several important implications.

First, it confirms that the test for establishing Aboriginal title to water spaces is essentially the same as the for establishing title to lands.  Claimants must show that they exclusively occupied the claim area at the time of the assertion of Crown sovereignty.[33] The trial judge had applied the test for Aboriginal rights set out in Van der Peet, on the logic that the plaintiff First Nations were seeking a novel kind of right that had not yet been recognized in Canadian law. The Court of Appeal clarified that the Tsilhqot’in test for Aboriginal title should be applied to title claims to waters and submerged lands.[34] 

This aspect of the decision offers First Nations seeking to bring claims for Aboriginal title to their water territories some level of clarity on the test they have to meet. But, beyond the basic legal framework, important questions remain. The courts have not yet addressed the kind of evidence that will be sufficient to make out a claim to water spaces.  Water spaces have different uses than lands.  While they can be traveled and fished, it would be rare for those uses to leave a robust archaeological record hundreds of years after the fact, the way that similar kinds of activities might leave a record on the lands. But water spaces are just as central and significant to many First Nations as the lands of their territory. Moving forward, courts will have to grapple with how to apply the Tsilhqot’in test to water territories in a way that does not make it functionally impossible to establish title to these spaces.   

A second important question raised in the case –whether Aboriginal title to navigable waters is legally possible at common law – remains unanswered. Ontario argued Aboriginal title cannot exist in navigable waters because it is incompatible with the public right of navigation—an old common law right that members of the public may freely pass over the waters. How to reconcile these rights was one of the major issues on appeal.

The Ontario Court of Appeal said it could not determine whether and how Aboriginal title can co-exist with the public right of navigation until after the trial judge has considered whether Aboriginal title was made out to a lesser portion of the claim area.[35]  This decision is strange, since there would be little point in sending the claim back to the trial judge if Aboriginal title to water spaces is not possible in Canadian law. The decision to return the matter to the trial judge suggests that, at least in some circumstances and in some places in the country, it must be possible to hold Aboriginal title to navigable waters. Further guidance on this point is needed from the appellate courts.

Finally, the Court of Appeal’s decision signals that trial judges must consider not only whether Aboriginal title is established to the entire claim area, but also whether the evidence can permit the trial judge to declare Aboriginal title to some portion of that claim area. This is a practical result for First Nations, who cannot be expected to plead and argue all the different permutations of boundaries for a declaration of title that the evidence might be able to support.

Nuchatlaht v British Columbia

In Nuchatlaht v British Columbia, the Nuchatlaht people claimed Aboriginal title of a 201 square km portion of their territory on Nootka Island, on the west coast of Vancouver Island.  The British Columbia Supreme Court dismissed their claim on the basis that they had not proven sufficient occupation of the claim area.[36]  However, as in Chippewas of Nawash, that was not the end of the matter. The Court invited the plaintiffs to set a further hearing to discuss the procedure to be followed to determine whether they could obtain a declaration of Aboriginal title to smaller areas.[37]

There are two particularly notable elements of this decision. First, it provided a helpful gloss on the test for Aboriginal title. The Supreme Court of Canada has said that, to establish Aboriginal title, the claimant must show that they exclusively occupied the land in question prior to the assertion of Crown sovereignty over the lands in question.[38] This requires consideration of three lenses: whether the occupation was sufficient to ground title; where present occupation is relied on, whether there is continuity between that present occupation and occupation back in time; and whether the occupation was exclusive.[39]  In Nuchahtlaht, the Court clarified that the exclusivity lens should focus only on whether the claimant had the capacity to exclude other Indigenous groups, not whether they could have also excluded western colonizers or explorers.[40]

This approach makes sense. If the goal of Aboriginal title is to recognize Indigenous Nations’ rights in the lands they historically occupied, there is no reason to require them to prove that, when Crown asserted sovereignty, they could have repelled the British army from their lands and waters. Such a test would be impossible to meet and would essentially endorse colonization by conquest.  The Nuchahtlaht court recognized this risk, noting that “to interpret [the test] otherwise would be to indirectly incorporate the doctrine of terra nullius (the idea that the land was legally vacant, despite the presence of Indigenous peoples) into the test for Aboriginal title.”[41]

Second, like Chippewas of Nawash, this case highlights some of the difficulties of establishing sufficient occupation. The Plaintiffs in Nuchatlaht advanced their claim to title on a territorial basis. They chose to claim a relatively small portion of territory, and did not claim the waters, foreshore and submerged lands they regularly used. To prove title, they relied heavily on what was understood by the Nuchatlaht and their neighbours to be the boundaries of their territory in 1846, the time the Crown was found to have asserted sovereignty in British Columbia.  Within this area were a number of Nuchatlaht village sites and culturally modified trees.[42] They also relied on evidence of Nuchatlaht laws governing how territory was owned and regulated.[43] Despite this evidence, the Court did not draw an inference that the claim area was used in a manner capable of grounding Aboriginal title.[44] The Court’s reasoning seems to suggest that Indigenous claimants have to prove extensive use of each area claimed in order to get a declaration of title. Arguably, this relies on the “postage stamp” approach to Aboriginal title that the Supreme Court of Canada rejected in Tsilhqot’in.

Krista Nerland is an associate at OKT. Her practice focuses on litigation related to Aboriginal rights, Aboriginal title, and treaty rights; human rights and discrimination; and advancing Indigenous jurisdiction. Krista has particular expertise in appellate litigation and has appeared at all levels of court, including the Supreme Court of Canada.