Treaty Rights and Reconciliation Legal Framework Allisun Rana, Rana Law on behalf of Treaty 8 First Nations Site C EA Hearing Session January 17, 2014 1
Principles of Treaty Interpretation A treaty is characterized by the intention to create obligations, the presence of mutually binding obligations and a certain measure of solemnity. It is an agreement whose nature is sacred. Treaties must be interpreted liberally, with any uncertainties, ambiguities, or doubtful expressions resolved in favour of the First Nation signatories. The words in a Treaty must not be interpreted in their strict technical sense nor subjected to rigid modern rules of construction. 2 2
Principles of Treaty Interpretation The terms of a Treaty must be interpreted in light of the historical context and the Treaty s underlying purpose. Extrinsic evidence relating to the parties respective understandings of the Treaty is relevant, even where there is no ambiguity on the face of the text. As the honour of the Crown is always involved, no appearance of sharp dealing should be sanctioned. 3 3
Principles of Treaty Interpretation Treaty rights must not be interpreted in a static or rigid way. They are not frozen at the date of signature. The court must update treaty rights to provide for their modern exercise. It is unconscionable for the Crown to ignore the oral terms and promises of a Treaty. 4 4
Oral Promises Our chief difficulty was the apprehension that the hunting and fishing privileges were to be curtailed. The provision in the treaty under which ammunition and twine is to be furnished went far in the direction of quieting the fears of the Indians, for they admitted that it would be unreasonable to furnish the means of hunting and fishing if laws were to be enacted which would make hunting and fishing so restricted as to render it impossible to make a livelihood by such pursuits. 5 5
Oral Promises But over and above the provision, we had to solemnly assure them that only such laws as to hunting and fishing as were in the interest of the Indians and were found necessary in order to protect fish and fur-bearing animals would be made, and that they would be as free to hunt and fish after the treaty as they would be if they never entered into it. We assured them that the treaty would not lead to any forced interference with their mode of life 6 6
More than a mere right to hunt, fish and trap for food Badger recorded that a large element of the Treaty 8 negotiations were the assurances of continuity in traditional patterns of economic activity. Continuity respects traditional patterns of activity and occupation. The Crown promised that the Indians' rights to hunt, fish and trap would continue after the treaty as existed before it (p. 5). This promise is not honoured by dispatching the Mikisew to territories far from their traditional hunting grounds and traplines. - Mikisew Cree First Nation v. Canada, para. 47 (emphasis added) 7 7
More than a mere right to hunt, fish and trap for food The meaningful right to hunt is not ascertained on a treaty-wide basis (all 840,000 square kilometres of it) but in relation to the territories over which a First Nation traditionally hunted, fished and trapped, and continues to do so today. - Mikisew Cree First Nation v. Canada, para. 48 8 8
More than a mere right to hunt, fish and trap for food... while specific species and locations of hunting are not enumerated in Treaty 8, it guarantees a continuity in traditional patterns of economic activity and respect for traditional patterns of activity and occupation. The focus of the analysis then is those traditional patterns. - West Moberly First Nations v. British Columbia, para. 137 9 9
Incidental Rights An aboriginal right, once established, generally encompasses other rights necessary to its meaningful exercise. In R. v. Cote, for example, it was held that the right to fish for food in a specified territory necessarily encompassed a right of physical access to that territory. - Mitchell v. Minister of National Revenue, para. 22 10 10
Incidental Rights Recognizing Aboriginal rights to hunt and trap over an area means wildlife and habitat must be managed to ensure a continuation of those rights. - Tsilhqot in Nation v. British Columbia, para. 1291 The exercise of Aboriginal fishing rights is dependent on the continued existence of that resource - R. v. Nikal, para. 94. 11 11
Incidental Rights Treaties protect rights reasonably incidental to those rights explicitly set out in the Treaty text, such as the right to construct a cabin in order to carry out hunting rights or the right to access waters in which fishing rights under a Treaty are exercised. - R. v. Sundown, para. 33. - Saanichton Marina Ltd. v. Claxton 12 12
Taking Up Land Since the Treaty No. 8 lands were not well suited to agriculture, the government expected little settlement in the area. The Commissioners, cited in Daniel, at p. 81, indicated that it is safe to say that so long as the fur-bearing animals remain, the great bulk of the Indians will continue to hunt and to trap. The promise that this livelihood would not be affected was repeated to all the bands who signed the Treaty. Although it was expected that some white prospectors might stake claims in the north, this was not expected to have an impact on the Indians' hunting rights. - R. v. Badger, para. 55 13 13
Taking Up Land For example, one commissioner, cited in René Fumoleau, O.M.I., As Long as this Land Shall Last, at p. 90, stated: We are just making peace between Whites and Indians -- for them to treat each other well. And we do not want to change your hunting. If Whites should prospect, stake claims, that will not harm anyone. - R. v. Badger, para. 55 14 14
Taking Up Land I interject to point out that some white prospectors [who] might stake claims, to the understanding of those making the Treaty, would have been prospectors using pack animals and working with hand tools. That understanding of mining bears no resemblance whatever to the Exploration and Bulk Sampling Projects at issue here, involving as they do road building, excavations, tunnelling, and the use of large vehicles, equipment and structures. West Moberly, para. 135 15 15
Reconciliation The fundamental objective of the modern law of aboriginal and treaty rights is the reconciliation of aboriginal peoples and nonaboriginal peoples and their respective claims, interests and ambitions. The management of these relationships takes place in the shadow of a long history of grievances and misunderstanding. The multitude of smaller grievances created by the indifference of some government officials to aboriginal people's concerns, and the lack of respect inherent in that indifference has been as destructive of the process of reconciliation as some of the larger and more explosive controversies. Mikisew, para. 1 16 16