POLI 478 Lecture Notes - Lecture 10: Sui Generis, Aboriginal Title, Frank Iacobucci
12 Jun 2018
School
Department
Course
Professor
Aboriginal Rights
Two relevant sections:
1) Constitution Act 1982, s. 35: not part of Charter
• Recognizes + affirms existing aboriginal + treaty rights of aboriginal peoples of Canada
o Aoigial peoples iludes Idia, Iuit, Métis
o Teat ights expanded: includes rights that now exist by way of land claims
agreements (or may be so acquired)
• Aboriginal + treaty rights guaranteed equally to male + female persons
o Longstanding dispute re. role of women in formal indigenous organizations (e.g. NWAC
v. Canada, 1994)
2) Charter s. 25: itepetie poisio, doest atiulate e ights
• Guarantee that Charter rights should not be construed to abrogate or derogate any aboriginal,
treaty, or other related rights
o Includes rights + freedoms recognized by Royal Proclamation of Oct 7, 1763 and rights
which exist through land claims agreements
Key issues in aboriginal rights cases:
• ‘efeee to eistig ights + those auied though lad lais sees to liit judicial
expansion of rights: frozen rights theory?
• Evidentiary questions: some aboriginal rights not documented
o What is the role of oral history for proving pre-1982 rights?
• Rights limitations: putting aboriginal rights in s.35 means they are not subject to s.1 (Hogg)
• Interaction with Charter rights
Key cases in Aboriginal rights litigation
R v. Sparrow (1990): first s.35 case decided by Supreme Court.
Sparrow arrested + charged in BC for fishing with an oversized net – argued that he had aboriginal right
to fish which could not be infringed by provincial regulations.
• SCC adopted s.35(1) approach similar to its Charter appoah: puposie, lieal, geeous
construction + interpretation of rights
o Eistig aoigial ights ot fied: ust e itepeted fleil to peit eolutio
over time
o Aboriginal rights = sui generis: unique, inherently different from Western legal traditions
• Crown did have power to extinguish certain aboriginal rights (those which did not exist pre-
1982): but high burden to demonstrate extinguishment
o Mere fact of regulating aboriginal rights ≠ extinguishment: explicit declaration required
▪ Extinguishment = executive function
o However, Court recognized that aboriginal rights could be regulated
• No explicit authorization for courts to assess legitimacy of restrictive legislation (unlike s.1) – but
SCC still developed Sparrow test to measure rights regulation
o 1) Does legislation interfere with an existing aboriginal right?
o 2) If yes, 2-part justification test:
▪ Is there a valid legislative objective?
▪ Is interference consistent with aitaiig hoou of the Co i dealig
with aboriginal peoples?
• Cout did ot atuall issue judget o “paos situatio: etued ase to tial out
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