Aboriginal Rights & Borrows’s “Frozen Rights in Canada: Constitutional Interpretation and the Trickster”SOC 3762: Law, Justice, & Indigenous Peoples
The Ultimate Controversy of Treaty History•Of all the controversies of Canada’s treaty history, the one that created a fundamental internal contradiction for Canada was the fact that…•…the Crown didn’t finish the job!•There are no historical “land cession” treaties for the areas in yellow & green2
Sorting Things OutAboriginal title•The question of Indigenous groups’ ongoing possession of their traditional territory•Concerns those groups who did not sign historical “land surrender” treaties (even though these treaties are themselves controversial and questionable)•Calder v. British Columbia (AG), : Aboriginal title can exist independently of treaties, statute, proclamations, etc. (It’s inherent!)Treaty rights•Not to be confused with Aboriginal rights! Treaty rights are any kind of rights sourced in treaty agreements•Can concern any number of things: hunting, fishing, trapping, education, healthcare, etc.3Aboriginal rights•Concerns rights to specific practices (e.g. hunting, fishing, etc.) which do not amount to full blown exclusive title over territory, and which are not sourced in treaties.•An extension of inherence: rights recognized as existing independent of treaties, statute, proclamations
“Inherent” Rights and Title•The term “inherent” is key: it’s essentially the opposite of the legal positivistapproach•Legal positivism: “in any legal system, whether a given norm is legally valid, and hence whether it forms part of the law of that system, depends on its sources, not its merits” (Gardner 2001, p.199)•E.g. Recall 1897 JCPC decision: treaties were just political promises; it was beyond the courts’ purview to enforce them, unless a valid legal source said otherwise, like legislation put in place by the sovereign•i.e. “Injusticiability”: declaring something injusticiable means that it can’t be decided by the courts, it is a political question rather than a legal question.•Not just for treaties: in the past, unsympathetic judges & legal scholars were inclined to argue that Aboriginal title over their own Indigenous territories didn’t exist unless the Crown (i.e. the sovereign) saidthat it existed—even though many Indigenous groups didn’t sign “land cession” treaties!4•Inherence undoes this: the courts no longer depend solely on Crown statute to recognize Indigenous rights or title to their own land. They can now recognize such rights as inherently existing, based on Indigenous peoples’ prior occupation of the land.
Where Did Inherence Come From?•Calder v. British Columbia (AG),  SCR 313•With the Calderdecision, Aboriginal title represented an Indigenous legal interest in the land that would once againbe recognized as existing independently of treaties, legislation, or the Royal Proclamation, 1763•i.e. Aboriginal title isn’t dependent on these in order to gain recognition. The courts