Why to Assert Your Aboriginal and Treaty Rights in Criminal Court

Carl Beam, Ojibway, M'Chigeeng, 1995; Credit: Collection of the Senate of Canada

It's no secret that Aboriginal and treaty rights have had a rough ride in the Canadian court system. But it's that same system that has at a few key magical moments accomplished great strides in advancing the legal and social positions of Aboriginal peoples within Canadian society, notwithstanding political deadlock at the federal and provincial government level. The thing that some don't recognize is that it's often been in the criminal rather than civil courts that the greatest strides toward recognition of Aboriginal and treaty rights have been achieved.

The first landmark Aboriginal rights case is often cited as the quasi-criminal R. v. Drybones, [1970] S.C.R. 282, where the Indian Act provision that made it an offence for an Indian to be intoxicated off a reserve was found in a Northwest Territories prosecution to be inconsistent with the Canadian Bill of Rights.

Under s. 35 of the Canadian Charter of Rights and Freedoms, the first Aboriginal rights victory was the quasi-criminal case of R. v. Sparrow, [1990] 1 S.C.R. 1075, which affirmed Aboriginal food fishing rights in priority to other interests except conservation.

For Aboriginal treaty rights under the Charter, the quasi-criminal case of R. v. Marshall, [1999] 3 S.C.R. 456 (where I appeared as legal counsel) had huge positive ramifications for First Nations throughout the Maritimes being able to exercise fishing rights not only for food, social and ceremonial purposes, but also to earn a moderate livelihood.

Courts continue to seem to have more sympathy for Aboriginal and treaty rights claimants who are being pursued by the might of the state through prosecutions brought in reaction to their simply trying to live out traditional lives through traditional practices, as compared to harsher court views of Aboriginal claims brought in provincial, territorial and federal civil courts.

Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 is an excellent example of how reams of evidence were presented and enormous litigation costs incurred by the Gitxsan people during a civil trial that stretched through hundreds of days, only for the Supreme Court of Canada to hold that the plaintiffs hadn't quite met the test for Aboriginal title, and that a new trial should be held.

When I showed up seven years later as a negotiator at the Gitxsan table in the Comprehensive Claims process of the British Columbia Treaty Commission, where we met in Hazleton, B.C. in the "Delgamuukw Boardroom," there was still quite understandably a lot of community frustration with being told by the courts that they may have rights, but they needed yet another trial to prove them. Many of the key elders whom had testified at the first trial had by then passed on.

Civil litigation clearly has its place in advancing Aboriginal rights. The great Aboriginal title victory of Tsilhqot'in Nation v. British Columbia, [2014] 2 S.C.R. 256, where I had been involved in settlement talks that went nowhere at the trial stage almost a decade previously, clearly demonstrates that Aboriginal right s. 35 Constitution Act, 1982 success is possible in the civil court system. Indeed, Aboriginal title claims can likely only be effectively asserted in the civil rather than criminal litigation realm, because of the types of evidence and arguments that need to be presented.

Sometimes there might even be parallel civil and criminal Aboriginal and treaty rights cases proceeding in different fora. I'm currently representing two Mohawk Akwesasne young mothers in the Ontario Court of Justice in defending their rights to live out their daily lives without unreasonable state interference, including travelling around and between their reserves for work, education and social purposes without having to continually report in person to CBSA officials. They're facing quasi-criminal charges under the Immigration and Refugee Protection Act. The trial resumes in June 2015 in Cornwall to complete the presentation of the defence evidence, and hear Crown evidence claiming why my clients have no rights. At the same time, arguments involving different plaintiffs but some overlapping issues are proceeding in the civil court forum of the Federal Court concerning mobility restrictions on the Mohawks of Akwesasne.

How Do I Make An Aboriginal Rights Claim in Court?

Map credit: NRCAN

It's now undisputed that Canadian Aboriginal peoples have rights. But if you're a member of one of those peoples, you might be wondering: "How do I claim my rights?"

You might be asking yourself questions like: "If I'm in court being criminally prosecuted or civilly sued, how do I invoke my rights?"

If you see environmental destruction being visited on your traditional territory by private interests, or witness the destruction of your community's way of life by government interests, you might wonder: "how can I use my rights in court to stop this destruction?"

The short answer is that you can accomplish a lot through relying on your rights in court, but you need to understand their limitations, and that the burden of proof falls entirely on you in court to prove those rights. 

Limitation #1: Aboriginal rights are collective rights exercisable by individuals. What this means to you is that you need the backing of your community to assert rights in court, and you need to be able to prove that you're a member of that community. There's no precise test of what an Aboriginal community amounts to for the purpose of a rights claim, or what being a member of the community requires - this is NOT a question of being on some Indian Act band list (though that can help). But you can't be out acting on your own without at least tacit or implicit community support if you expect to invoke Aboriginal rights in support of your actions.

Limitation #2: You need to be clear on whether you are advancing an Aboriginal title claim, Aboriginal treaty rights claim, or non-treaty Aboriginal rights claim. Unless you have the backing of your whole nation, and millions of dollars to spend on the litigation, don't bother with title - the courts have been clear that title exists, but don't seem to want to award it to anyone even after trials that have lasted for years! If your community is connected to a treaty - historic like those on the map above, or modern like those on the map below - carefully comb through its language to see if there is something in there which might help you. If your community doesn't have a treaty, or if the treaty isn't of any help in your particular situation, then you are left with a straight forward Aboriginal rights claim.

Limitation #3: You'll need lots of evidence to support your claim. You can't just make a bald claim of a right, and presume the court will accept it. In fact, the Crown might call evidence to rebut anything you do present, so make sure your evidence is relevant, compelling and voluminous. You might need an expert witness historian or anthropologist. If this sounds a bit much, remember that you're playing by the rules of court, not necessarily the rules of common sense. 

The most important thing you can do to make an Aboriginal rights claim work in court for you is to claim only the narrowest right which is still broad enough to assist you in your case. The broader the rights claim, the more evidence you will need, and the more nervous the court will get that granting you your claim might lead to an unpredictable domino effect throughout Canada among other Aboriginal peoples. You'd be quite right in thinking this wouldn't be such a bad thing, but remember that courts are by nature conservative institutions that worry about rocking the boat of state. 

You also really need a lawyer to make an Aboriginal rights claim work in court. There's certainly some legal work people can do for themselves, but Aboriginal rights claims can only be described as complicated and challenging to advance, even for the lawyers who are familiar with those types of cases. But you shouldn't necessarily expect to pay for all those legal costs out of your own personal pocket - these claims mainly work when a community is willing to support their costs (because there will ultimately be a benefit to the whole community), when the government agrees to provide test case funding, or the government is ordered to provide funding by a court. 

So What's All the Fuss About Aboriginal Rights?

It's a rather small rectangular light on the cockpit instrument panel. It is, appropriately enough, red. But not all that impressive for the word emblazoned across it: "STALL." It's flashing right now, accompanied by an equally unimpressive, plaintive "baaa", "baaa", "baaa" sounding like a highly alarmed sheep of the highlands being chased by an overly-amorous Scot.

I'm in a twin-engine Piper Navajo Chieftain that I've chartered. It's just taken a hard left turn, and is attempting to drop from 5000 feet down to zero in too short a time. First time the pilot has been into this gravel strip. Seems he's waited a little too long to start his descent, but can't say I can blame him with all the natural obstacles that require dodging.

We've just shot up a fjord known as Rivers Inlet on British Columbia's central coast: beauty like the stuff of movies. Waterfalls propelled from sheer vertical mountainsides. Mountain goats like fleas picking their way across those same sheer faces. Invisible salmon below, deciding if it's time to make a run back up the home tributary.

At the end of the fjord is a very short river - the Wannock - followed by the long narrow Owikeno Lake that's very similar to the fjord except for one being fresh water, the other salt. Fjord, river and lake are all compressed by vice-grip mountains running along their shores. The folks I've come to see live out their lives on a small amount of flat habitable land running along the shores of that short but important river, a river which historically had the third greatest salmon run on the west coast. They're the Wuikinuxv, and the Government of Canada has given me a mandate to settle their Aboriginal title claim with them. It's early 2004, and talks have already been proceeding sporadically for several years.

We kept the Wuikinuxv waiting a long time. Their then-Chief Joseph Chamberlain speaking through a translator told the Mckenna/McBride Commission (a government commission investigating the territory of Aboriginal reserves in British Columbia) way back on a Saturday afternoon on August 16th, 1913:

We want to get the whole of River's Inlet, from Koeye to the lake – Wuikinuxv Lake. The Whiteman wants to take all of our land and we are in the position of men who have been pushed half way to the water off our land, and it would not take much to push use off the land into the deep water altogether.

When a process was finally set up a mere eighty years later to deal with the Aboriginal title claims of the Wuikinuxv and numerous other Aboriginal peoples in British Columbia who had never signed treaties with the Crown, the Wuikinuxv laid claim to 6783 square kilometers – an area a bit smaller than Puerto Rico, and a bit bigger than Trinidad and Tobago. Almost no one else lived in this remote fly-in territory. Some loggers and commercial fishermen passed through now and then. But you don't need remote territory to have a claim; we also had groups in downtown Vancouver.

Aboriginal rights are nothing new in Canada. They existed in 1492, still continued in 1763, and even survived in 1982. Over this 500-year period, judges and legislators have shed a little light on what they're all about. And of course, Aboriginal peoples have had a thing or two to say about them as well. It's easiest to start not at the beginning (though for those who like to start stories there, I highly commend to you the great book 1491 by Charles C. Mann), but only around 30 years ago when s. 35 of the Constitution Act, 1982 codified what this Aboriginal rights thing was all about:

s. 35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.

What this meant was that the government couldn't go around any more unilaterally extinguishing rights, that aboriginal rights could be separate from treaty rights, and that there are three kinds of Aboriginal peoples in Canada.

There's unfortunately lots of mythology which has developed around what those rights may or may not be. Mythology that hasn't helped the cause of Aboriginal-Crown relations in Canada. Perhaps the most key concept to remember is that they are collective rights exercisable by individuals; in a day and age of individualistic rights, this collective-rights concept might strike one as a little strange, but really it makes a lot of sense as it controls the historic continuity of who the rights used to belong to and who they have been passed down to.

It means that anyone with some Aboriginal ancestry - for which an awful lot of Canadians who have been here for a few generations might qualify  - can't simply walk out of their downtown Toronto condos and start exercising what they claim are their rights. But it also means that rights can continue collectively notwithstanding that those individuals who possessed rights at the time of first contact or treaty signing with Europeans aren't around anymore. It's not quite the same as non-Aboriginal property rights continuing after an individual passes on, but most seem to agree that individual inheritance is fair. So why not collective inheritance? I can tell you about those rights in future posts, but this is at least a start.

The wheels of the plane hit the gravel strip. We stop quickly; lots of runway left! No more flashing lights or alarms.

Unfolding ourselves from the narrow seats arrayed along the interior of the fuselage, we duck our heads as we exit the aircraft. We inhale moist temperate rainforest scents, and wonder if grizzlies have come down to the village to feed on the plentiful berries. The Wuikinuxv are waiting for us with a van to drive to the village to start our negotiations.