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Chapter 7: Conflicts and Constitutions: The 1980s

The federal government has a claims policy that they brought into place after the Calder case, and that claims policy was hollow. It was empty. It meant nothing. Still, the Gitksan and Wet’suwet’en entered into one of their phases of trying to resolve the land question in the mid-70s, and in 1977 qualified for federal funding to prepare negotiations…. Beginning in 1977, a tremendous amount of work was done, work that built on what was done before and took it even further. A base was built to prepare for negotiations.

—Medig’m Gyamk (Neil Sterritt), Gitksan, 1992, It Doesn’t Matter What the Judge Said.¹

The Master’s Tools: The Comprehensive Claims Policy

Before a land claim could be considered for negotiation under the federal government’s Comprehensive Claims Policy, Aboriginal “claimants” had to first “qualify” by presenting specific evidence to the federal government of Canada, and to the provincial governments. According to the terms and definitions set out in the Calder decision, to be eligible, a claimant group would have to prove that their ancestors were members of an organized society who had occupied and used specific lands and resources before Europeans arrived; and, that the present claimants continue to occupy these same lands, and to use these same resources today.

Aboriginal peoples and their supporters set about doing research to demonstrate that their territories had borders that could be delineated and transformed into lines on maps; and that their villages, their hunting, fishing and gathering spots, and their sacred sites, could be represented by Xs on those same maps. Feasting and potlatching, increasingly transmuted into nouns, appeared on administrative flow charts, representations of governments, complete with bureaucrats and pawns. Continually contested and negotiated processes for resolving disputes were written down and codified into written laws. Oral histories, songs, dances and prayers were documented and edited; tape recorded and word processed. Stories and memories were burned onto film.

Using the masters’ tools to destroy the master’s house,² reappropriating colonial schemes, converting them into resources for cultural survival, are strategies that oppressed people have honed for centuries. Mapping can be a profoundly powerful political act of naming, or re-naming what is yours, in your own language. Documenting hunting, fishing, gathering and food processing can be a way of seeing what television and schools have tried to render invisible. Graphing structures of government can reveal another potential for feasting systems that have been changing and adapting for thousands of years. Trying to understand the underlying philosophies of laws can help to create alternative visions of justice. Recording the knowledge of elderly people whose embodied histories may die with them is, in the contemporary world, an important part of safeguarding their unique experiences and wisdom for the benefit of all of humankind.

Aboriginal peoples in Canada in the 1970s, like Indigenous people around the world, were actively engaged in a decolonization movement that included efforts to liberate themselves politically and culturally from years of being told, and sometimes believing, that they had no right to dreams of self-determination, and no possibility of realizing them. They were digging out from under over 100 years of colonial domination, emerging sometimes from generations of institutionalization in residential schools, and prisons. For the Gitksan and Wet’suwet’en, and other Aboriginal peoples in Canada, having access to resources through the Comprehensive Claims Policy provided the necessary material resources that enabled people to become more deeply engaged in learning or re-learning their languages, their histories, their subsistence technologies and practices; and reflecting on their traditional and contemporary cultures. With the pragmatic determination of their ancestors, they tried to represent and translate themselves through images and languages that “others” might understand, without sacrificing their own dignity and integrity. As they sought to interrupt the historical monologue, and to initiate dialogue, these resources helped their voices to be heard, often for the first time, by non-Aboriginal Canadians.

The financial support provided by the federal government to prepare comprehensive claims submissions, and the implied promise that these claims would be taken seriously and responded to honourably, were integrated into the Aboriginal movement for decolonization: imperfectly and unevenly, and within the confines shaped by power relations, of course. But reappropriated they were.

The comprehensive claims process moved very slowly through the Office of Native Claims during the 1970s and 1980s.³ The federal government’s guidelines allowed it to negotiate only one claim at a time in each province or territory. In British Columbia, where the provincial government refused to participate on the grounds that no Aboriginal rights ever did or ever would exist in this province, the entire process was stalled. The Nishga claim, supported by the accumulated documentation of over 100 years of constant petitioning and preparing for litigation, had been filed first and lay dormant. All other First Nations knew that their claims would not even be considered until after the Nishga’s was settled.

While the comprehensive claims process in B.C. was stuck in this logjam in front of the bottleneck built by the provincial and federal governments, the pace at which the exploitation of natural resources was proceeding accelerated, and profits from the forests and the seas flowed into corporate bank accounts unimpeded, except by political resistance. Many people feared that, by the time First Nations got to the table, there would be no resources left to negotiate. Throughout the 1980s, various B.C. First Nations mounted campaigns of civil disobedience. They and their supporters temporarily halted industry and transportation across their lands, and applied—sometimes successfully—to the courts for injunctions to halt development until their claims were heard and adjudicated.⁴

Title on the Baker Lake Tundra: Lower Peaks than Mexico

The exigencies of survival dictated a society composed of small, scattered groups. The band itself had no political hierarchy; that existed only at the camp level….

Major decisions all involved the hunt, conducted at the camp level, and were made by the oldest hunters. Neither individuals, camps nor bands claimed or recognized exclusive rights over a particular territory…. There is no evidence or reason to infer that the Inuit’s nomadic ways, relationship to the land and social and political order changed from prehistoric (circa 1610) times until their settlement (circa 1950).

—Justice Mahoney, Federal Court of Canada, 1980, Reasons for Judgment in The Hamlet of Baker Lake et al v. Minister of Indian Affairs and Northern Development.⁵

Meanwhile, in northern Canada, a case that would establish important precedents in the area of Aboriginal law was winding its way through the maze of trials and appeals. The “Baker Lake case” had been launched in the Federal Court of Canada, Trial Division, in 1979. The Plaintiffs were the Hamlet of Baker Lake, the Baker Lake Hunters and Trappers Association, the Inuit Tapirisat of Canada, and individual Inuit living, hunting and fishing in the Baker Lake area of the Northwest Territories. The Defendants were the Attorney General of Canada and the Minister of Indian Affairs and Northern Development in Right of Her Majesty the Queen, and a consortium of mining companies. The plaintiffs asked the court for an order restraining the government from issuing land use and prospecting permits, granting mining leases and recording mining claims which would allow mining activities in the Baker Lake area, and for an order restraining the defendant mining companies from carrying on such activities there. They also asked for a declaration that the lands comprising the Baker Lake area are subject to the Aboriginal right and title of the Inuit residing in or near that area, to hunt and fish in these territories.

In their initial pleadings, the government defendants admitted that the Plaintiffs and their predecessors had occupied and used the Baker Lake area since time immemorial. They withdrew this admission during the trial. The mining companies denied that Aboriginal title had existed either before or after Europeans arrived in the region. Both the government and the mining companies argued that if Aboriginal title ever existed it was entirely extinguished by the Royal Charter of 1670 that granted the territory—then known as “Rupert’s Land”—to Canada, or by subsequent legislation.

Judge Mahoney found the evidence of the Inuit elders about their ways of life and religious beliefs, and that of Superintendent Dent of the Royal Canadian Mounted Police “complementary,” in so far as both described daily life within small hunting groups.⁶ The principal conclusion the judge took from this evidence was that, prior to moving into settlements in the early 1950s, the Baker Lake Inuit were, in his words, “nomads.” In his imagination, this meant they had no strong ties to specific, delineated tracts of land, or “civilized” concepts of private property.

Expert witnesses Dr. Elmer Harp Jr., Professor Emeritus of Archaeology at Dartmouth College, Hanover, New Hampshire, and Dr. J. V. Wright, head of the Scientific division of the Archaeological Survey of Canada, particularly impressed Justice Mahoney with their detailed and recognizably “scientific” evidence, and with the fact that they agreed with each other, as Mahoney did with them, on the fundamental issue of classification within the familiar social evolutionary framework: the Inuit were nomadic hunters, not settled horticulturists and therefore were low on the scale of evolutionary human development.⁷ Justice Mahoney concluded that “those encampments of two or three families were the units described by the Inuit witnesses, encountered by Inspector Dent in the mid-1950s, by Norton in 1762, and discovered to have existed in the Thule period.”⁸

Justice Mahoney was less impressed by the expert evidence of Dr. Milton Freeman, whom he described as “a social anthropologist, which is to say that he is neither an archaeologist nor a linguist; he studies the social behaviour of people in the context of their society or culture.”⁹ On the stand, Dr. Freeman elaborated on the nature of “band level societies,” a term he had not used in his affidavit. The Crown and the mining companies objected to his testimony following his statement that the small hunting units described by both Inuit elders and local non-Inuit observers are “units of a much larger coherent organized society and very much interacting, interdependent, mutually dependent on interaction with other units within the society…this all constitutes a very coherent society which anthropologists have no problem in identifying….”¹⁰ Freeman tried to explain that, while the Baker Lake Inuit may have hunted and camped in small family groupings during particular seasons, at other times they joined together with similar bands in large gatherings for the purposes of trade and exchange, ceremony, ritual, resolution of disputes, organization of government, and documentation of significant historical developments through oral history. The Baker Lake Inuit live sometimes in small bands; and at other times, in larger groupings. Freeman challenged simplistic classifications that rule out those concrete aspects of Indigenous life which do not fit neatly into abstract European theoretical categories.

Mahoney dismissed Freeman’s evidence on a technical point: Rule 482 of the Rules of Evidence requires that an expert witness’ testimony be laid out in an affidavit first, in order for the opposing lawyers to have adequate opportunity to review the expert opinion report and prepare for cross examination.¹¹ Freeman had stated in his affidavit that he would discuss the relationship between the Inuit and their environment. When Freeman described Inuit culture, Mahoney ruled that “this was not what was promised” in the affidavit, apparently understanding “environment” to include only the physical or natural landscape, but excluding human social, political and economic organization. Dr. Freeman was engaging in “persuasive arguments” on these issues, unbecoming to a scientist, the judge said.

Mahoney was similarly unimpressed by Dr. Peter Usher’s evidence. Usher holds a Ph.D. in Geography. Quoting the Shorter Oxford Dictionary definition of geography as the “science that describes the earth’s surface, its form and physical features, its natural and political divisions, its climates, productions etc.,” Mahoney concluded that Dr. Usher’s evidence didn’t fall within his field of expertise. Mahoney wrote: “Dr. Usher’s evidence had more the ring of a convinced advocate than a dispassionate professional…. Neither his formal training as a geographer nor his experience in and with the Arctic and Inuit qualify him to form opinions on political, sociological, behavioural, psychological and nutritional matters admissible as expert evidence in a court of law.”¹²

More experts testified. Wildlife biologists, ethnologists, and experts on animal behaviour were called to the stand by both parties. Those called by the plaintiffs supported the Inuit hunters’ claims that the caribou herds were declining and being driven away by mining activities. Those called by the government and mining companies discounted the Inuits’ evidence, saying their knowledge reflected only their simple lived experiences and was therefore particular and limited, and should not be taken as seriously as the theories of “scientific experts.” These non-Inuit experts claimed to base their knowledge on scientific surveys that reached far beyond the immediate area of Baker Lake, and produced results that could be generalized and tested against universal, law-like theories. They claimed the causes of the caribou herds’ decline were multiple and complex.

Justice Mahoney ruled that “on the balance of probabilities…activities associated with mining exploration are not a significant factor in the caribou population decline.”¹³ In summary, Mahoney, like judges before and after him, preferred to rely on his own “common sense” interpretation of Native testimony, supported by carefully chosen “factual” confirmation by “ordinary white people,” and professionals selectively labelled “scientists” by a judge. Testimony by well educated and well respected—by the criteria of western scholarship—scholars of “softer sciences” like anthropology or social geography, was rejected.

Assessed from another perspective, it could be argued that evidence that supported the representation of Baker Lake Inuit societies as “high enough” on the scale of social development set by the Re: Southern Rhodesia test to have had “property usages and conceptions that could be continued under the British regime,”¹⁴ was rejected in favour of images of small bands of nomads lacking political or social cohesion whom the same judgment had described as “so low on the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or legal ideas of civilized society.”¹⁵ Expert witnesses whose testimony supported the former were dismissed as unprofessional “advocates” of Aboriginal political causes, while those whose interpretation supported the latter where respected as “scholarly experts.” This evaluation was made by the court, and not by the standards of their respective professions.

On the legal source of Inuit Aboriginal title, Justice Mahoney set out a four-point test which he said the plaintiffs must prove to establish an Aboriginal title cognizable in common law:

(1) That they and their ancestors were members of an organized society.

(2) That the organized society occupied the specific territory over which they assert the Aboriginal title.

(3) That the occupation was to the exclusion of other organized societies.

(4) That the occupation was an established fact at the time sovereignty was asserted by England.¹⁶

The first criteria was drawn directly from the test in Re: Southern Rhodesia. Mahoney enforced this by referring as well to Haldane’s decision in Amodu Tijani v. Nigeria about acknowledging differences between Indigenous property systems. Accordingly, Mahoney argued that different property regimes represented different stages of social evolutionary development. The Baker Lake Inuit passed Mahoney’s test, but only just. Unlike the Nishga, who the Supreme Court of Canada found had “developed their cultures to higher peaks” than any other Indigenous peoples north of Mexico, Mahoney classified the Baker Lake Inuit as less advanced on the evolutionary scale. Mahoney wrote: “The fact is that the aboriginal Inuit had an organized society. It was not a society with very elaborate institutions but it was a society organized to exploit the resources available on the barrens and essential to sustain human life there. That was about all they could do: hunt and fish and survive.”¹⁷

On the question of extinguishment, Mahoney ruled that neither the Royal Charter of the Hudson’s Bay Company, nor admission of Rupert’s Land into Canadian confederation had extinguished the common law Aboriginal title the Inuit held. Neither, he found, had legislation subsequent to 1870 had the effect of extinguishment. However, the unextinguished rights that Mahoney “found” were extremely limited. He argued that Aboriginal title could not have been proprietary because then the Crown would have formally extinguished it. His conclusion, in summary, was that the plaintiffs were entitled to a declaration that they have an Aboriginal right only to hunt and fish on the lands in question. “The aboriginal right asserted here encompasses only the right to hunt and fish as their ancestors did,” Judge Mahoney wrote.

When the Calder case went to court in 1969 the trial took four days. No fully articulated “legal test” existed at the time and judges saw the question of Aboriginal title as a factual matter to be determined on the basis of empirical evidence of actual historic occupation and use of ancestral lands.¹⁸ Such a test requires minimal evidentiary support, is relatively uncomplicated, and accessible to common sense reasoning and understanding. The straightforward arguments and the evidence required to prove historical use and occupation, in its simplicity, was also difficult for the Crown to dispute. However, only Aboriginal peoples, and not non-Aboriginals, are required to prove long term use and occupation, rather than pre-existing ownership and historical title, to establish legal ownership of land. And, the use and occupancy test suffered from being based on the demand that Aboriginal people demonstrate how their property systems were similar enough to be considered equal to British ones.

This is another double bind: if Aboriginal people emphasize the similarities between their land tenure systems and British ones, the courts may look more favourably on their claims because they appear familiar, but then the Aboriginal litigants sacrifice the opportunity to demonstrate the cultural uniqueness and ongoing validity of their own relationships to land, and surrender to the colonizer’s language and legal concepts. If, on the other hand, Aboriginal peoples emphasize the differences between their relationships to land and those of British-derived cultures, they risk them being classified as too different to be understood as equal. Heads, the Crown wins. Tails, Indians lose.

Justice Mahoney’s 1980 decision in The Hamlet of Baker Lake v. Minister of Indian Affairs and Northern Development, and his articulation of a precise, but complex, legal test for Aboriginal plaintiffs to meet, therefore marks an important turning point in this story: the recognition, and construction, of complexity around the legal Aboriginal title issue. The intricacies of diverse Indigenous relationships to land are complex and interesting. However, the historical/legal questions at stake remained the same: were Aboriginal peoples here when Europeans arrived? Did they live in organized societies with property laws? Were their rights lawfully extinguished according to British, Aboriginal or International law?

The Baker Lake test set the terms of legal and anthropological research questions for a decade to come.¹⁹ The important knowledge required to understand and participate in the legal struggle for recognition of Aboriginal title and rights increasingly became the task of specialists like lawyers, consultants, Aboriginal Elders and a small coterie of First Nations leaders. Increasingly, ordinary people, Aboriginal and not, were ushered out of decision-making roles and into fund-raising and public education in support of litigation.

The Evolution of the Dedicated White People Band at Bear Island

To conclude, in 1763, George III, with the advice of his United Kingdom Ministers, did not grant ownership of vast tracts of land to Indian bands…when a war had just been fought to acquire those lands….

At that time, Europeans did not consider Indians to be equal to themselves and it is inconceivable that the King would have made such vast grants to undefined bands, thus restricting his European subjects from occupying these lands in the future except at great expense.

—Justice Steele, Supreme Court of Ontario, 1989, Reasons for Judgment, in Attorney-General of Ontario v. Bear Island Foundation et al.

In the 1989 case of The Attorney-General for the Province of Ontario (the plaintiffs) vs. the Bear Island Foundation and Gary Potts, William Twain and Maurice McKenzie Jr. on behalf of themselves and on behalf of all other members of the Teme-agama Anishnabay, and the Temagami Band of Indians (the defendants), ²⁰ referred to as “the Bear Island case,” the Crown claimed unencumbered title to 4000 square miles of land in Northern Ontario. The defendants, Bear Island et al, argued that Crown title was burdened by Aboriginal title recognized by the Royal Proclamation of 1763, and by unfulfilled obligations under the Robinson-Huron Treaty signed in 1860. The Crown wanted the court to relieve them of this burden so that development could proceed unencumbered. The Bear Island trial remains the longest recorded civil hearing in Ontario history, lasting for 120 days.²¹

Like Judge Mahoney, Justice Steele was not impressed by the expert witnesses supplied by the Bear Island defendants, calling them “a small, dedicated and well meaning group of white people…[who]…in order to meet the aspirations of the current Indian defendants has pieced together a history from written documents, archaeology and analogy to other bands, and then added to that history a study of physical features and other times, together with limited pieces of oral tradition.”²²

Justice Steele ruled that the evidence presented did not, to his satisfaction, prove that the Teme-agama Anishnabay were members of an organized society in 1763.²³ He went on to conclude that, since neither the French nor the English considered Indians as equal to Europeans in the eighteenth century, the Crown’s representatives who drafted and signed the written agreement could not have intended for the Royal Proclamation of 1763 to recognize Aboriginal title as the basis of any legitimate legal or political rights.

The Bear Island case illustrates an example of a conservative, archaic approach to the interpretation of history in the context of Aboriginal rights litigation. During the 1970s and 1980s, Canadian courts wrestled with the problem of how to interpret history in the context of Aboriginal rights litigation. The results varied, and were often contradictory. In 1973 when the decision in the Calder case was arrived at, Justice Hall had commented that historical documents “must be approached in the light of present-day research and knowledge disregarding ancient concepts formulated when understanding of the customs and culture of our original people was rudimentary and incomplete and when they were thought to be wholly without cohesion, laws or culture, in effect a subhuman species.” Similarly, in 1977 in the case of Kruger and Manuel v. The Queen,²⁴ then Chief Justice Dickson of the Supreme Court of Canada argued that traditional legal approaches may not be adequate to the task at hand since “claims to aboriginal title are woven with history, legend, politics and moral obligations.”²⁵ The idea that judges must be conscious of historical context when interpreting legal precedents, was offered again in 1985 in the Simon v. R.²⁶ case, when the Supreme Court of Canada overruled a decision by Justice Patterson in R. v. Syliboy made in 1929. In that case, Patterson had found that a particular agreement between the Crown and the Micmac in 1752 was not a treaty representing the “unconstrained Act of independent powers,” but rather an agreement “between a civilized power and savages.” The 1985 Supreme Court of Canada decision stated that “It should be noted that the language used by Patterson J…²⁷ reflects the biases and prejudices of another era in our history. Such language is no longer acceptable in Canadian law, and, indeed, is inconsistent with a growing sensitivity to native rights in Canada.”²⁸

However, in 1985, the very same year that Chief Justice Dickson of the Supreme Court of Canada issued this caution, in the Supreme Court of Ontario, Justice Steele handed down his decision in the Bear Island case using language and reasoning that resembled Patterson’s 1929 ruling in both theory and substance. On appeal, in 1991, the Supreme Court of Canada rejected Steele’s finding that the Teme-agama Anishnabay had “failed to prove that their ancestors were an organized band level society in 1763.” However, they simultaneously ruled that they were unable to find any “palpable and overriding error” in Steele’s findings of facts, although they did not necessarily agree “with all the legal findings based on those facts.”²⁹

Legal scholar Joel Fortune asked the obvious question: “How is it possible to distinguish Steele J.’s ‘correct’ determination of the facts from his ‘incorrect’ finding that the Teme-amaga Anishnabay did not constitute an organized society in 1763?”³⁰ Fortune answered his own question by concluding that the Supreme Court of Canada’s Bear Island decision is an illustration of “the judicial reluctance to acknowledge openly that a legal outcome may rest on a question of historical interpretation.”

The Bear Island judgment refashioned the Baker Lake test into a more complex three-part test, adding requirements for proof of the nature of Aboriginal rights enjoyed prior to the relevant date, as well as evidence of a system of land-holding and a system of social rules and customs. And, the Bear Island test added, this continuity of exclusive occupation must be evident up to the date of commencement of the court action. Therefore, the Bear Island claimants had to prove exclusive occupation from the eighteenth century until the time they started their claims action in the late twentieth century. This set a precedent whereby all Aboriginal claimants could be asked to show that they had excluded not only other Indigenous peoples from their territories from the time of European contact until the filing of their writ in a contemporary court, but that they had also kept well-armed European explorers, miners, traders, settlers and police off their lands.

In a practice that speaks to the uniquely autocratic prerogative of law, the legal tests for Aboriginal rights have been constructed and/or elaborated upon during the course of trials, and articulated by judges post hoc³¹ in reasons for judgment, often in response to evidence and testimony presented for the first time in the particular trial being judged. Thus, claimants enter into a trial prepared to meet a test enunciated in a previous case, and find their arguments and evidence evaluated on the basis of criteria that emerge in situ. These criteria, in turn, influence the arguments lawyers advance and the kinds of evidence and expert witnesses they bring forward to support their arguments in a subsequent case. The tests have, therefore, shaped the research and testimony sought from anthropologists, archaeologists and other expert witnesses employed in the litigation process.

The evidentiary requirements for legal proof of Aboriginal title have correspondingly expanded exponentially, and, with them, the role and importance of anthropologists and other expert witnesses. The “land use and occupancy” studies that were previously required to establish long term, prior occupancy, now had to be supplemented by research into cosmology, language, spirituality, governance, law, family life, and world views. The increase in volume and complexity of evidence was generated by the court’s responses to these cases, and the political context shaping both. Anthropologist Peter Elias concluded that “the tests set out by Mr. Justice Steele in Bear Island Foundation…may have crossed the line of social science comprehension…if the tests are elaborated much further, it won’t be possible to meet them.”³²

The Master’s House: The Repatriation of the Canadian Constitution

When the Constitutional process came along, in 1981 and 1982, the Gitksan and Wet’suwet’en asked themselves and talked to the elders and wondered: ‘Can we create the political will on the part of the politicians in British Columbia and in the federal government to negotiate?’…

We have been consistent. You could see it based on the things that the elders were saying to the McKenna-McBride Commission between 1912 and 1913 and the points they were making when Indian reserves were being set up in the 1890s. We read and knew what they were saying, and there were elders in the 1970s and 1980s who were repeating those same comments and questions. They all wanted to resolve ‘the land question’. They wanted recognition of who and what they were, and they wanted to have some dignity in their own land. The constitutional process provided an opportunity….So we entered that process. It didn’t take long, however, to find out we were wasting our time in the constitutional process. It was clear nothing was likely to happen, because there was no political will or understanding at the time for anything substantial to happen.

The negotiation process wasn’t available to us—it just wasn’t working.

—Medig’m Gyamk (Neil Sterritt), 1992, It Doesn’t Matter What the Judge Said.³³

Another arena in which Aboriginal political struggles took place during the 1980s was created by the repatriation of the Canadian Constitution from Britain to Canada. As part of this process, Aboriginal peoples sought to have recognition of their inherent Aboriginal title and rights entrenched and given constitutional protection. Some British Columbia Indians, fearing that repatriation would jeopardize what they considered their direct relationship with the British Crown, recognized by the Royal Proclamation of 1763, mounted an international campaign to postpone repatriation of the Constitution until Aboriginal issues were dealt with. They were not successful in halting the repatriation process, but did succeed in wresting a commitment from the federal and provincial governments to include Aboriginal representatives in formal discussions concerning the formulation of the new Constitution Act. Negotiations took place during a series of five First Ministers’ Conferences held between 1983 and 1987, and resulted in the Meech Lake Accord³⁴ that, critics charged, failed to adequately protect the rights of Aboriginal peoples, Québecois and women.

The limited victory won by Aboriginal peoples in the Constitution debates was represented by Section 35(1) of the Constitution Act, 1982 which states: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” This clause is described as an “empty box” which litigation and further negotiations must fill. In other words, it was left to the courts and to negotiations between federal, provincial and Aboriginal representatives to define what these “already existing” Aboriginal rights were: what is the content of these rights? What do they actually mean, to whom, in everyday life? Are these rights “inherent,” arising from Aboriginal peoples’ having been the prior occupants and rulers of the land now known as Canada; or are they “delegated,” their legal and political source relying on recognition by the Crown? What would constitute legitimate extinguishment of Aboriginal title and rights: did such extinguishment have to be explicit, or could it be implicitly inferred? Was evidence of Aboriginal consent required to make extinguishment legal?

The case of R. v. Sparrow, launched in British Columbia in 1984, and finally ruled on by the Supreme Court of Canada in 1990, was the first to begin filling Section 35(1) of the Constitution Act, 1987’s “empty box.”

Testing, Testing: From “Use and Occupancy” to “Culture” in the Sparrow Decision

In the Court’s view, the reason for concluding that the Musqueam Nation enjoys a right to fish lies not in the presence of state action conferring such a right, but instead arises from the fact that fishing is integral to Musqueam self-identity and self-preservation…. The nature and content of an aboriginal right is determined by asking what the organized aboriginal society regarded as “an integral part of their distinctive culture”….To be so regarded those practices must have been integral to the distinctive culture of the above society from which they are said to have arisen.

…The content of aboriginal rights thus is to be determined not by reference to whether executive or legislative action conferred such a right on the people in question, but rather by reference to that which is essential to or inherent in the unique relations that native people have with nature, each other, and other communities.

—Chief Justice Dickson, Supreme Court of Canada, 1990, Reasons for Judgment, in R. v. Sparrow.³⁵

The next, and final, important case that preceded Delgamuukw v. R., was R. v. Sparrow. It began in the same year, 1984, that the Gitksan and Wet’suwet’en filed their Statement of Claim. On May 25, 1984, Reginald Sparrow, a member of the Musqueam band, was charged with fishing for salmon using a drift net that was longer than allowed by the Department of Fisheries-issued permit for Indian food fishing. Sparrow defended himself by saying he was practising an “existing Aboriginal right” protected under Section 35(1) of the Constitution Act, 1982. Sparrow was first found guilty in the Provincial Court of British Columbia. When the case was appealed to the British Columbia Court of Appeal, the appellate court agreed that Sparrow’s Aboriginal right to fish had not been extinguished prior to 1982, but ruled that the mesh size regulations of the Department of Fisheries were still applicable. At issue when the appeal of the case went forward to the Supreme Court of Canada was whether the Musqueam First Nation could assert an Aboriginal right to fish that would override federal regulations which required a fishing permit and restricted the use of a drift net to a maximum length of 25 fathoms. The Musqueam asserted that their right to fish was an “existing aboriginal right…recognized and affirmed by s. 35(1) of the Constitution Act, 1982, and therefore paramount over federal law.” To be regulated in the exercise of their right by Department of Fisheries and Oceans regulations was inappropriate and unconstitutional, they claimed.

The Supreme Court of Canada agreed with the Musqueam, and in their decision handed down on May 31, 1990 called for “a generous, liberal and purposive interpretation of s. 35(1).”³⁶ They found first that Aboriginal rights that exist in common law are recognized and affirmed by s. 35(1) of the Canadian Constitution that is paramount over all other laws. The Constitution, in other words, is the supreme law of the land.³⁷ As a result, laws that interfere with the exercise of constitutionally-protected Aboriginal rights must conform to constitutional standards of justification. For example, where a resource, like fish, is scarce, Aboriginal rights should take precedence over commercial and sports interests and be limited only by the requirements of conservation of the resource.

The Sparrow decision reiterated that the Crown must show a clear, plain and explicit intention to extinguish Aboriginal title, and that laws of general application applied to Indians should not be construed as having effected “implicit extinguishment.” It is a common legal strategy in Aboriginal title litigation for lawyers for all parties to present judges with a number of possible interpretations: a kind of prioritized “wish list” of rulings their clients could live with. These various alternative arguments need not be logically consistent, and often begin from radically different premises. The Province of British Columbia’s legal argument in support of “implicit extinguishment” constitutes such an alternative, or “fall back” position. Should a judge find that Aboriginal title and rights did exist at the time the British arrived, and therefore that some form of extinguishment of Aboriginal title was required, the Province of B.C. puts forward their argument that colonial governments in British Columbia have consistently demonstrated their implicit