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3. Resource Rights
From Canadian History Portal - HCO
Contents |
Introduction
Hunting, trapping, fishing and other uses of natural resources are collectively referred to as harvesting activity. In addition to land claims First Nations have sought to protect their Aboriginal or treaty rights to harvest natural resources. Re-gaining control of land is not particularly useful if a First Nation does not have the right to use that land. To this end First Nations have fought numerous legal battles against resource regulations. Such laws, they argue, contravene either promises made to them during past treaty negotiations, or restrict their Aboriginal rights.
Issues surrounding resource harvesting rights are very contentious. There are many questions about these rights. Some people argue that First Nations cannot claim rights to resources that they used hundreds of years ago. Canada has changed too much, and First Nations must accept that natural resources are now regulated for the benefit of everyone. Those who support resource rights maintain that many First Nations never surrendered their rights to resources. It is wrong, both morally and legally, for a government to simply take these rights away.
In addition to this there are other questions that have appeared about First Nations harvesting rights. For example, can Aboriginal rights be allowed if a resource is scarce and has to be conserved? Can First Nations use modern technology when harvesting a resource? Do First Nations have a right to harvest any natural resource or only those they traditionally used? Do First Nations have a right to harvest resources commercially (i.e.: gather a resource and sell it to others)? Such concerns and questions make Aboriginal resource rights an important legal question in Canada.
The Royal Proclamation of 1763
As with most legal issues pertaining to First Nations, the Royal Proclamation of 1763 is the starting point. Elements of the proclamation have been outlined at other points in your textbook. However, the wording of the proclamation is very important for First Nations harvesting rights. The section of the proclamation that deals with land states the following:
- ...whereas it is just and reasonable, and essential to our [Britain's] Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds.
Those last four words "as their hunting grounds" may seem unimportant, but they are very significant. Britain realized that First Nations' land was not just there for them to live on, but also to use. These four words can be interpreted as British recognition of First Nations' rights to hunt, trap and fish (since the word "hunting" can be applied to all use of wildlife).
Early Treaties
Early treaties in the British colonies, such as Upper Canada and the Maritime colonies, often contain very little about harvesting activity. However, this does not imply that First Nations gave up their rights to hunt or fish. A closer analysis of treaties, and studying what the early colonies were like, shows that First Nations kept their rights to hunt and fish and that the government wanted them to continue doing this.
Treaties from the late 1700s and 1800s are very simple. All they usually provide is a description of the land being covered by the treaty, a list of the presents given to the First Nations for signing the treaty, and the names of the people who signed.[1] However, the presents contain a lot of historical clues. First Nations often received (in addition to other things) gun powder, ammunition, fishing nets, fishing hooks, and spears for fishing as presents. Such presents are a good indication that they wanted to keep their rights to hunt, trap and fish. If they were surrendering their harvesting rights in the treaty receiving such presents made little sense.
In Upper Canada the colonial government wanted First Nations to continue hunting and fishing. Settlements in the colony were very small. Toronto (known then as York) was a very small village of only a few log houses and buildings. People did not have enough to eat, and very little land was cleared for farming. The same was true in many settlements. Upper Canada's first lieutenant-governor, John Graves Simcoe, realized that settlers were always very close to starvation. A bad harvest could mean hardship for many people. Simcoe encouraged Natives to hunt and fish, and to bring this food to the settlements to sell. During the late 1700s and early 1800s hunters from the Six Nations Reserve on the Grand River sold wagons full of deer meat to settlers in the town of Niagara every weekend. Even into the 1830s and 1840s settlers wrote in their diaries how Native peoples would arrive at farms and sell fish and meat.[2]
This situation was not unique to Upper Canada Fur traders in the Hudson's Bay Company relied on First Nations to supply them with meat and fish throughout the year. In the Maritimes the Mi'kmaq continued to fish and hunt, and sell some of this food to settlers.
At this time in Canada there were no wildlife conservation laws. A few laws did exist in the early 1800s, but governments were too small to enforce them. When laws were passed, however, they often stated that First Nations could continue to hunt and fish as they wanted. There are several reasons why government's allowed this. First, as noted above, Natives supplied settlers with fresh meat. Furthermore there was a lot of wildlife in Canada at that time. People in the colony hunted and fished when they wanted, and there was usually enough for everyone. Governments also did not see a lot of value in wildlife. Through much of the 1800s governments were more concerned with bringing settlers to Canada, and giving them land to farm on. There was also some logging and mining. Wildlife was not considered an important resource by settlers and governments.
The Start of Restrictions
First Nations hunting and fishing became more difficult as more settlers arrived in Canada. Settlers also hunted and fished. This put increasing pressure on wildlife. Eventually deer and other animals became scarce. In Upper Canada the first fishing regulations were put in place in the 1850s. Other laws were passed to conserve wildlife. In Ontario a new Game Act was passed by the provincial government in 1892. This marked a major change in conservation. Now a permanent group, the Game and Fish Commission, would oversee wildlife conservation. In addition a new position was created: the game warden. These men, initially just 6 for the entire province, enforced wildlife laws. As the years passed more game wardens were hired. Soon both the other provinces and the federal government passed similar conservation laws across the country.
People began to see economic value in wildlife. Tourists, often from large American cities but also from Canadian cities like Toronto and Montreal, spent a lot of money to go on hunting or fishing tripis for a week or two in rural areas. In small towns around across Canada local people began to operate guiding businesses for these tourists. Other people made money running motels and restaurants to cater to these tourists. Small stores also serviced this new tourist trade. Railways made a lot of money taking these people north and back home again. Soon tourism became an important part of a province's economy.
As part of this new policy parks were created. Some were provincial parks and others were federal parks such as Banff National Park in Alberta. Within these parks hunting was usually banned. Fishing was generally permitted, but people had to obtain a permit first. In the provinces Crown game preserves were created. This land set aside and hunting was banned in the preserve. The theory was that the animals would multiply in the preserve. Eventually their population woudl grown and they spread out from the preserve. By creating game preserves provinces would insure that there were always enough animals for hunters.
With money at stake, and wildlife no longer as abundant as it once was, provincial governments started applying their game laws to First Nations and ignoring the treaties. People with an interest in tourism as a business resented First Nations hunting and fishing when they wanted. First Nations complained to the federal government about this. They stated that the treaties they signed with the Crown were meant to protect their rights to hunt, trap and fish. However, the Department of Indian Affairs took little interest in this. As noted earlier, the official policy of Indian Affairs was to acculturate First Nations in Canada. Government officials believed that preventing First Nations from hunting and fishing would force them to acculturate faster.
Early Court Cases
First Nations did not accept what was being done to their harvesting rights. They complained to the both the federal and provincial governments about these restrictions. They hired lawyers (in some cases lawyers worked pro bono - for free) to fight the laws in court. While First Nations generally did not win these cases they are still important to understand. These early legal challenges show that First Nations always believed that treaties were meant to protect their rights. They also demonstrate how courts and different governments interpreted treaty and Aboriginal rights, and the difficulties First Nations had getting the treaties respected by the courts and politicians.
Syliboy
In 1928 Chief Syliboy, a Mi'kmaq leader from Cape Breton Island, was arrested for having beaver pelts in his possession. Beaver was not in season when Syliboy was arrested according to Nova Scotia's wildlife conservation laws. During his trial, Chief Syliboy stated that a 1752 treaty between the Crown and the Mi'kmaq gave him the right to hunt when he wanted. Article 4 of the treaty states: "It is agreed that the said Tribe of Indians shall not be hindered from but have free liberty to hunt and fish as usual."[3] The court ruled against Syliboy for a number of reasons. Those reasons that dealt with the treaty are outlined here:
- The Treaty of 1752 was signed before Cape Breton was part of Nova Scotia. Therefore, the treaty did not apply to Syliboy.
- The treaty did not apply to all Mi'kmaq because a number of treaties were created after 1752 with other Mi'kmaq groups.
- When Nova Scotia has the power to ignore treaty rights. It gave the Mi'kmaq hunting privileges for as long as it suited the government. The government was not bound to the treaty.
- The Mi'kmaq were not a nation in 1752. Nova Scotia was, in the judge's words, "a country of uncivilized people or savages" when it was discovered by Europeans. Britain never considered the Mi'kmaq to be a sovereign people.
- The Treaty of 1752 is not really a treaty. According to the judge it is only an agreement between the governor of Nova Scotia "with a handful of Indians."
The judge did state that he was sorry for Syliboy as the chief sincerely believed he had a treaty right to hunt. He stated in his decision that the government of Nova Scotia should not try to "enforce the conviction" and punish Syliboy for breaking the law.
Padjena v. Rex (1929)
Two Ojibwa from the Pic Mobert Reserve in northern Ontario, Joe Padjena and Paul Quesawa, were arrested in the late 1920s for trapping beaver out of season and for being in possession of beaver pelts out of season. They were found guilty, and fined $600. Both men appealed the decision. In 1929 the second judge overturned their conviction. He said that the Robinson-Superior Treaty promised the Ojibwa the right to hunt, trap and fish, and Ontario's game laws could not break that promise.
The Ontario government appealed the decision but it was never brought to court. It became apparent before the court date that both Padjena and Quesawa were hunting outside the borders of the Robinson-Superior Treaty. They were actually within Treaty Nine when they were hunting. Based on this evidence the 1929 decision was soon forgotten. A court decision that supported Ojibwa harvesting rights remained unappealed, but the arrests continued.
In 1929 the treaties were interpreted literally but only insofar as it suited the government. The Robinson Treaties promised the Ojibwa they could continue to hunt, trap and fish "as they heretofore had been in the habit of doing." But how should this phrase be interpreted? Does it only apply within the treaty? Does this phrase mean that the Ojibwa can continue to hunt on any lands that they traditionally used? There is a lot of historical evidence that some Ojibwa hunted outside of the Robinson Treaties. Their hunting/trapping territories crossed the border into Treaty Nine. Such information would not have been considered important by governments or the courts. Treaty rights were limited to a treaty area (if the government bothered to respect the treaties at all).[4]
Changing Perceptions: First Nations Victories in Court
First Nations started having more legal success in the 1960s. Just prior to the Calder decision two First Nations men from Vancouver Island, Clifford White and David Bob, were arrested for hunting deer out of season. Both men claimed a treaty right to hunt based on the Douglas Treaties of the 1850s. The British Columbia Court of Appeal ruled in R. v. White and Bob in 1964 that the Douglas Treaties were legally treaties as defined by the Indian Act. The British Columbia government had argued that the Douglas Treaties were only agreements to purchase land. They also argued that hunting laws were "laws of general application." Such laws are meant to apply equally to all citizens. Under the Indian Act such laws apply to all status Indians. However, in the Douglas Treaties the First Nations were promised that they were "at liberty to hunt over the unoccupied lands as formerly."[5] This promise overrode any provincial laws and the Indian Act.
Matters changed even further with the 1973 Calder decision. Within this decision were statements that recognized First Nations rights not just to land but to the resources above and below the land (what are known as surface and sub-surface rights). As noted in the previous chapter the Calder decision is seen as the legal turning point for the concept of Aboriginal and treaty rights.
Key Decisions: Simon, Sioui, Sparrow
Analyzing Aboriginal rights requires examining a lot of legal decisions. Modern questions involving harvesting activity usually end up in the Supreme Court of Canada. Rarely do governments and First Nations agree about what Aboriginal rights still exist, or how a treaty should be interpreted. Supreme Court decisions, however, are binding on all levels of government (unless a provincial government or the federal government invokes the notwithstanding clause in the constitution). Understanding these rulings, therefore, and their effect on Aboriginal rights is crucial. It is also important to keep in mind how important section 35 (s. 35) of the constitution is to Aboriginal rights. This is covered in the chapter on land claims and the final chapter of section two.
In 1985 the Supreme Court of Canada ruled in the case of R. v. Simon. James Simon was a Mi'kmaq from Nova Scotia. He was arrested for possessing a rifle and ammunition. Simon argued that the 1752 treaties gave him the right to hunt and fish. Nova Scotia's hunting regulations did not apply to him. All of the lower courts ruled against Simon. His case was appealed to the Supreme Court. It ruled that the Treaty of 1752 was binding on the government. The treaty promised continued hunting and fishing rights to the Mi'kmaq, and the government could not break that promise. Mr. Simon's possession of a rifle and ammunition was necessary for him to exercise his right to hunt. Therefore, owning a rife and ammunition was also a treaty right.
A different type of resource harvesting was examined in R. v. Sioui (1990). Conrad Sioui, a Huron from the Lorette Reserve in Quebec, and other members of the community were camping in Jacques Cartier Provincial Park. While in the park they cut down some small trees for use in a traditional ceremony. They were arrested for this, and camping and lighting a camp fire in an improper park location. When they were brought to court they stated that they were carrying out a religious ritual, and the trees were being cut down for ceremonial purposes. They claimed a right under the terms of a 1760 agreement between the Huron and Governor James Murray of Quebec. Under this agreement, Murray agreed to allow the Huron to exercise their religion, customs and trade with the English in return for surrendering their land. The Supreme Court ruled that this agreement constitutes a treaty under the Indian Act.
R. v. Sparrow (1990) is an important ruling. Elements of it are explained in the chapter on land claims, but it is important for cases involving harvesting rights as well. The Sparrow decision defined Aboriginal rights and outlined conditions under which an Aboriginal right can be restricted by the government. Section 35 (1) of Canada's constitution reads: "The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed." This statement may seem simple, but legally it is not. The court put forth the following interpretations:
- The word "existing" means unextinguished. This means an Aboriginal right still exists so long as that right has not been ended by a treaty. The extinguishment of an Aboriginal right has to be explicitly written into a treaty and understood by the Native people who signed the treaty. It cannot be assumed that a treaty extinguished an Aboriginal right.
- "Recognized and affirmed" means that the federal government has accepted that it has a fiduciary, or trust-like, relationship with Aboriginal people. It must act in the best interests of Aboriginal people.
- Section 91(24) of the constitution gives the federal government jurisdiction over "Indians and lands reserved for Indians." This gives the federal government the right to change Aboriginal rights. However, section 35(1) means that such changes have to be justified, and carried out in negotiations with First Nations.
These conditions are important for Aboriginal rights. It gives them full protection under the constitution.
The last statement, that the federal government can change Aboriginal rights, led the court to create further rules"
- Any infringement has to be for a specific purpose (i.e.: conserving a species of animal), and must be done in such a way that honours the fiduciary relationship between the Crown and Aboriginal people.
- Once a conservation measure has been put in place Aboriginal peoples have the right of first access to that resource whenever possible. For example, a government may pass a law banning the hunting of moose in a particular area because moose are very scarce. All people, including Aboriginal people, cannot hunt moose regardless of any rights. If the moose population increases sufficiently for limited hunting this must be granted to Aboriginal people first.
Sparrow is an important decision because it laid out for governments and First Nations what s.35(1) means. Recognizing someone's rights is only the first step. Defining what those rights are, and how far they extend, is a more difficult process. The Sparrow decision was only the first of other court rulings that would attempt to outline what Aboriginal rights are.
"Frozen in Time"
"Frozen in Time" is a phrase often applied to Aboriginal and treaty resource rights. It is a very controversial concept. Consider the following examples of Aboriginal resource harvesting and decide for yourself if First Nations are acting within their rights:
- A First Nations person drives his truck down a dirt road. He walks a couple of kilometers into the bush down a trail. He climbs into a deer stand (a platform placed in the trees), and shoots 2 deer that day with his rifle. He is going to use this meat as food for his family.
- Three Native men are hunting deer in the autumn. They kill over 100 deer in one month. They intend to keep 6 deer for themselves, and sell the rest to local people and restaurants for a profit.
- A group of five Native people are netting fish out of a fresh water lake. They use power boats to get out into water. They use modern nets which stretch over 100 meters to catch the fish. They use electronic fish finders. The fish they catch are sold to local restaurants and specialty food stores in the neighbouring towns and cities. Over the space of several months they catch approximately 1 ton of fish.
- A band is going to run a commercial logging operation. They use chainsaws and other modern equipment (including skidders and heavy equipment). It is no different than other commercial logging operations in the region. They refuse to apply for a provincial logging permit because they claim an Aboriginal right to log.
If you think that First Nations should not use modern tools and weapons when using natural resources you are an advocate of frozen in time rights. Advocates of this position say that it is wrong for First Nations to use natural resources for traditional reasons based but harvest these resources using modern tools and weapons. If they do use such equipment and technology their rights should be amended or limited. As technology changes so too should their rights.
Others argue that "frozen in time" limits First Nations. Cultures change over time, and First Nations cannot be expected to rely on traditional tools when making use of resources that they have a right to access. Denying First Nations modern access to natural resources prevents them from benefiting economically from those resources. This keeps many Aboriginal people in a state of poverty.
Over the last fifteen years court cases have offered decisions regarding resource rights and the frozen in time argument. In general these cases are based on incidents in either British Columbia or the Maritimes, and revolve around fishing and logging.
While the Supreme Court of Canada rejected the frozen in time argument in the Sparrow decision it created restrictions in 1996 in R. v. Van Der Peet. Dorothy Van der Peet, a member of the Sto:lo First Nation in British Columbia, was arrested for selling fish contrary to provincial resource laws. She claimed an aboriginal right to sell fish as part of her culture. The Supreme Court ruled that the Sto:lo do have an Aboriginal right to fish, but not to sell that fish.
The court devised a test Aboriginal resource claim. First, the activity of the person has to be part of a practice or custom that was and is part of their traditional culture. Second, Aboriginal rights have to show continuity (i.e.: be linked to) traditions and customs that a First Nation practiced before the arrival of Europeans. These practices can evolve over time but they must be linked to past customs. Lastly, rights are specific to a particular Aboriginal group. For example, one Aboriginal group might establish a right to sell fish. However, another Aboriginal group might not be able to. In the Van Der Peet decision the court ruled that the Sto:lo did not prove that selling fish was an integral part of their culture.
Not all the judges agreed with this ruling. Five of the judges supported this decision - this is called a majority ruling. Two judges wrote what are called dissenting opinions. They both argued that basing Aboriginal rights on practices before European contact only revived the frozen in time argument. Justices McLachlin and L'Heureux-Dubé said an Aboriginal right only had to be based on a practice done for a substantial period of time not only from the pre-contact period.
Van Der Peet, like other Supreme Court decisions, creates a framework to define what Aboriginal rights are in a legal sense. These early decision would be used to guide the Supreme Court in two more recent decisions: R. v. Marshall, and R. v. Bernard.
The Marshall Decision
Donald Marshall was already a well known individual when he became the centre of national attention again. Prior to this trial he was wrongly convicted of murder, and spent 11 years in a federal penitentiary before being released. Once freed, he returned to his Mi'kmaq community. In 1993 he was arrested by federal fisheries officials for catching eels out of season. Marshall claimed a right to do so based on a 1760 treaty between the Mi'kmaq and the British.
He was found guilty in his first trial, but appealed his decision to the Supreme Court of Canada. It ruled that the 1760 Treaty was valid, and that the Mi'kmaq had a right to fish for eels and other ocean resources commercially. However, the Supreme Court also stated that this was not an unlimited right. Federal regulations to conserve eels and other ocean resources had to be respected. Mi'kmaq were limited to earning only a "moderate livelihood" from commercial fishing.
The decision sparked a lot of argument and unrest in the Maritimes. Mi'kmaq people were, in general, very happy. The lobster season was starting, and they said the Marshall decision gave them the right to hunt lobster commercially. Non-Aboriginal fishermen were angry about the ruling. They feared the Mi'kmaq could claim the entire fishery, and force them out of their businesses.
Matters became so tense that the Supreme Court issued a clarification of its ruling. This was extremely rare for the Supreme Court. It stated that the decision applied only to fishery resources. Some First Nations believed that the ruling covered all natural resources. The court stated that such rights have to be established on a case by case basis. Lastly, the court noted that the federal government has the right to restrict Aboriginal rights for conservation purposes (based on the rules outlined in the Sparrow decision).
Tempers and tensions ran high in the Maritimes. Allegations were made that federal Fisheries officials deliberately rammed their boats into Mi'kmaq boats fishing for lobster. Property was destroyed by both sides. As it currently stands First Nations and government are negotiating to work out a framework to provide First Nations with access to fish resources while both meeting conservation goals and allowing non-Aboriginal fisherman to continue working. Some Mi'kmaq communities refuse to negotiate. They state that their rights are protected by treaty.
The Marshall decision relates to the "frozen in time" issue. Some non-Aboriginal fishermen argue that the Mi'kmaq are fishing in deep water for lobster. Traditionally they did not do this because they lacked proper boats. For this reason, the fishermen argue, the Mi'kmaq should abide by all fishing regulations.
Mi'kmaq reject this argument stating that their rights to the fisheries were never surrendered. Mi'kmaq also argue that the Court's statement that they can only earn a "moderate livelihood" freezes their rights. If they had maintained access to the fisheries and not been shut out by government regulations their use of the resource would have evolved over time to a more commercial operation. By limiting the amount of fish they can catch and sell the Supreme Court continues to restrict their rights.
R. v. Bernard
Issues about logging appeared soon after the Marshall decision. Two separate cases were brought before the Supreme Court. One was based on the arrest of Joseph Bernard of the Eel Ground First Nation in New Brunswick. The other was Stephen Marshall of Millbrook First Nation in Nova Scotia. Both men were cutting logs for commercial reasons. Both men claimed an aboriginal right to harvest logs based on treaties created in 1760-61.
This was an important case. It would indicate if the fishing rights recognized in the Marshall decision could extend to another resource. However, the Supreme Court ruled against both Marshall and Bernard in July, 2005. The court ruled unanimously that the treaties only protected Mi'kmaq access to resources that were being traded in 1760. Since trading in logs was not part of Mi'kmaq culture in 1760-61, the Mi'kmaq could not claim a current Aboriginal right to harvest timber on a commercial level. Representatives of the federal, Nova Scotia and New Brunswick governments indicated that they would continue to negotiate with the Mi'kmaq regarding access to timber, but the status of these negotiations is not known.
The Bernard decision also speaks to the "frozen in time" concept. Chief Justice McLachlin wrote in her decision that:
Ancestral trading activities...are not frozen in time and the question in each case is whether the modern trading activity in issue represents a logical evolution from the traditional trading activities at the time the treaties were made.[6]
This means that commercial trading in fish is a logical evolution for the Mi'kmaq. They traded in fish in 1760, and continuing that trade in a modern fashion is logical. Commercial logging, however, was not a logical evolution of Mi'kmaq resource use in 1760.
Conclusion
Reading an overview of Aboriginal resource rights requires a strong knowledge of Supreme Court decisions. Much of what is decided regarding Aboriginal rights is decided by the courts. History, sociology, and anthropology are important to these decisions only because they provide evidence for both sides in a court case. What the Supreme Court decides, however, becomes law in Canada. Issues surrounding Aboriginal resource rights, however, remain contentious. Further arguments will be brought forward in the future that will further define how these rights are applied in Canada.
Notes
- ↑ Robert J. Surtees, "Indian Land Cessions in Ontario, 1763-1862: The Evolution of a System." Ph.D. Thesis (Carleton University, 1982).
- ↑ David Calverley, "When the Need no Longer Existed: Declining Wildlife and Native Hunting Rights in Ontario, 1791-1898" The Culture of Hunting in Canada. Jean Manore and Dale Miner eds. (Vancouver: University of British Columbia Press, 2006)
- ↑ R. v. Syliboy (1928). University of Saskatchewan. Canadian Native Law Cases
- ↑ David Calverley, "Who Controls the Hunt? Ontario's Game Act, the Canadian Government and the Ojibwa, 1800-1940." Ph.D. Thesis (University of Ottawa, 1999).
- ↑ Cited in Ken Coates, The Marshall Decision and Native Rights. (Montreal: McGill-Queen's University Press, 2000): 84
- ↑ Supreme Court of Canada. R. v Marshall; R. v. Bernard
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