Ever since the repatriated Constitution of Canadian and its accompanying Charter of Rights and Freedoms came into effect in 1982 the Supreme Court of Canada has been kept busy with numerous court challenges. Various groups and individuals have mounted challenges to laws that they believe impinge on basic human rights.
The Court hasn’t had to rule on all the fun ones; euthanasia, abortion, and same sex marriage. People who haven't agreed with their decisions complain about the Supreme Court governing the country, but all they have been doing is their job: Acting as final arbitrator in legal decisions and reaching conclusions based on the letter of our law.
When the law says that all citizens are to be treated equal no matter what their race, creed, colour, sex, or sexual preferences are, they interpret this as being final, with no exceptions. That means if a same sex couple wants to get married, they can. In the eyes of the Court, whatever the law and the Constitution say is final.
More problematic areas are those where there isn't an article in the Constitution dealing directly with the subject. The thorniest of these has been the contentious issue of what constitutes aboriginal rights. Neither the Charter of Rights nor the Constitution spell out any specifics.
Section 35 of the Constitution and 25 in the Charter of Rights are the only ones that deal with the issue at all, and they offer minimal guidance. In the latter, it simply states that no part of the Charter can be seen to overrule any previous laws that guaranteed treaty rights and other rights and freedoms.
The Charter specifically cites the Royal Proclamation of 1763 as the major source defining any and all treaty rights that needed to be adhered to. The Constitution is even vaguer. All it says is that all previous treaty rights are still in effect and recognised. It also makes reference to section 91, class 24 of the Constitutional Act of 1867. Since all this part of the original Constitution states is that the passing of laws and the preservation of treaty lands as pertains to the indigenous peoples of Canada are now the responsibility of the legislative assembly of Canada instead of the British Government, it doesn't offer much assistance in defining native rights according to law.
The Royal Proclamation of 1763 was one of those great documents that promised lots without guaranteeing anything. Prior to the American Revolution it guaranteed that all land west of the Appalachian Mountain range could only be taken from indigenous people by treaty negotiated by the Crown. That was amended to reflect the reduction of Crown territory after the Revolution, so that it was enforced in the region now known as Canada.
World is a different place
For the Supreme Court of Canada, what this means is that when faced with cases revolving around the rights of Native Canadians they are dealing with rights that were enshrined by treaty more than 300 years ago when the world was a far different place. If a treaty from those times guaranteed a tribe of people the right to carry on their way of life, meaning hunting, fishing, and harvesting lumber as needed, how are those rights applied in today's world?
Does it mean that a native person can fish commercially all year round while other fishermen must adhere to strict seasonal guidelines? Does it mean that a native person can set up a forestry business and remove wood from wherever he so chooses, as long as it’s not privately owned land?
The Court has been trying to walk a fine line here with respect to adhering to the treaties while acknowledging there are significant differences in today's world. An example can be found in a ruling handed down on Friday in a case involving three Native men from New Brunswick who were charged with the illegal harvesting of lumber from Crown (government-owned) land. While acquitting them of all charges by a unanimous vote of 9 – 0, the Court did make certain provisos in order to try and set limits on the amount of lumber that is harvested – and to establish a precedent for future cases of a similar nature.
One of the conditions that the Court stipulated was that in order for a native person of a particular tribe to harvest wood from public territory there had to be proof of either hereditary or treaty granted usage of that land for that purpose. The other control placed on the harvesting of lumber was that there could be no commercial use attached to the raw timber; it could only be put to personal use.
On the other side of the ledger, the Court said that they could not see the validity in the argument that would have only allowed native people to use the wood they harvested for so-called traditional activities; making canoes and wigwams. The Court stated that they would not allow native people to be restricted in their usage of the lumber by old cultural stereotypes. The lumber could be used for making furniture, house building, artwork, and pretty much any other personal use you could think of.
What the judges didn't do, or failed to address anyway, was set any sort of limit on how much wood a native could harvest for individual use. And although the ruling said that the wood itself couldn't be sold commercially, there was no mention of whether or not products made from the lumber, furniture, boats, or pieces of sculpture, could be sold.
What do aboriginal rights mean?
The most likely reason is that the Court was primarily concerned with establishing just what aboriginal rights under the terms of past treaties and agreements actually mean. What they have been gradually coming to is that these rights entitle native people to continue to make use of resources for personal use on land, or water, that they can lay claim to via their nation or tribe's treaty rights.
The Court had previously ruled that natives could fish for personal use at any time in the year, but could only operate commercial practices during in-season like any other fisherman. This ruling was made somewhat more complex due to the fact that nations on at least the West Coast of Canada have proof that they historically conducted a sizeable amount of trade in fish all year round, therefore making commercial fishing a "traditional practice".
The fact of the matter is that with today's technology combined with the severe reduction in fish stocks make anyone's desire to run a commercial fishery year round seem stupid. I'd have to wonder about anyone demanding to be allowed to deplete fish stocks that much further by exploiting them all year round.
No, it isn't the fault of natives that the stocks have been almost depleted, but that isn't what matters now. What matters now is that your ancestors left you fish to eat, are you going to leave any for your descendants?
The Supreme Court of Canada has a duty and obligation to ensure that the original treaties signed with the native population of Canada are adhered to as much as possible. At the same time they also need to take into consideration the realities of today's world when reaching decisions. Sometimes this may mean expanding upon an original definition, other times apparently curtailing some activities.
What's important – and what I believe they are doing their best to achieve – is that the spirit of these treaties is adhered to, if not the actual letter of the agreements. I'm sure people on both sides of the issue are never going to be completely happy with the decisions reached by the Court, and that points of contention will continue to linger long after verdicts are handed down.
But little by little, and for better or worse (in my opinion usually better), the Supreme Court of Canada is defining aboriginal rights in Canada. They will continue to listen to arguments over various issues from both sides. But now that the precedent of personal use based on historical access to resources has been established as the bar against which decisions will be weighed, at least everyone is beginning to figure out where they stand.
If the government shows a willingness to enact legislation that reflects those rulings, we may yet see an end to the repeated confrontations and arrests that have besmirched our dealings with folk who were here before us. Who knows? We may even end up as equal partners in the country.