Ministry of Aboriginal Affairs, Province of British Columbia
In 1982, aboriginal rights were recognized and affirmed in Section 35(1) of the Constitution Act, 1982. Recent court decisions have clarified the issue of aboriginal rights and, as a consequence, redefined the legal relationship between the Government of British Columbia and aboriginal peoples. Aboriginal rights were not extinguished when British Columbia joined confederation.
The Sparrow Decision
On May 31, 1990, the Supreme Court of Canada rendered its decision in R. v. Sparrow. The Court recognized that the Musqueam (and by extension other) aboriginal peoples had an unextinguished aboriginal right to fish for food, social and ceremonial purposes. These rights were "rights held by a collective (which) are in keeping with the culture and existence of that group.”
Aboriginal rights are protected under Section 35 of the Constitution Act, 1982. The government may constitutionally justify infringement of aboriginal rights in certain circumstances by meeting the principles established by the Supreme Court of Canada in R. v. Sparrow and R. v. Gladstone.
The Delgamuukw Decision
On June 25, 1993, the Court of Appeal rendered its decision in Delgamuukw v. The Queen.
The Court of Appeal held that blanket extinguishment of aboriginal rights did not occur prior to 1871 and, therefore, aboriginal rights continue to exist in British Columbia today. Aboriginal rights were held to be those activities which are integral to the distinctive culture of an aboriginal society (and were integral since prior to 1846). Aboriginal rights are site - and fact - specific and vary from context to context in accordance with distinct patterns of historical occupancy and use of land.
In Delgamuukw, the Court rejected a claim of aboriginal law-making power, but found a limited right of internal “self-regulation”, or a right to practice certain traditions, provided that there is no conflict between the exercise of those aboriginal traditions and general law of the Province or Canada.
The Van der Peet, N.T.C. Smokehouse, and Gladstone Decisions
On August 21, 1996, the Supreme Court of Canada rendered decisions in three aboriginal fishing cases from British Columbia: R. v. Van der Peet, R. v. N.T.C. Smokehouse and R. v. Gladstone. In Van der Peet, the court set out a detailed test for the establishment of aboriginal rights, based largely on the test set out by the B.C. Court of Appeal in Delgamuukw. To constitute an aboriginal right, an aboriginal practice, tradition or custom must be integral to an aboriginal society’s distinctive culture prior to contact with European society (and no longer prior to 1846). The scope and content of aboriginal rights must be determined on a case-by-case basis.
In Gladstone, the court expanded on the test for justification of infringement of aboriginal rights set out in Sparrow.
Legal Implications
Based on the foregoing decisions, if the Province wishes to engage in any activity on Crown land, it should make its best efforts to first determine if aboriginal rights exist in that area and if the proposed activity will infringe upon those rights. If it is determined the activity does infringe upon aboriginal rights, that infringement should be avoided where possible unless it can be justified pursuant to the principles established by the Supreme Court of Canada in R. v. Sparrow and R. v. Gladstone.
This policy is in effect at all times, even though the Province may be engaged in litigation with an affected First Nation.
Activities on Crown Land
The policy will apply generally to all provincial ministries and officers of the Crown overseeing activities and decisions on Crown land. As outlined in the general operational guidelines (Section 7.0), ministries may employ approved procedures for determining in advance a range of situations where there is no risk or minimal risk of infringing aboriginal rights and which can thus be excluded from the requirements of this policy.
Where the Crown is authorizing a use of private land:
For example, the policy would not apply to Crown authorizations relating to private land already put to an urban use.
1. the private land remains available for and is being used for the practice of significantly valued aboriginal rights; and
2. the use being authorized by the Crown is one which could significantly infringe the exercise of such aboriginal rights on that land.
As an example, the policy would apply on private lands where the use being authorized by the Crown is likely to physically affect aboriginal burial sites on that land.
Based on the Van der Peet decision, the following factors must be considered in determining whether an aboriginal practice constitutes an aboriginal right:
Aboriginal rights may include the right to use land to hunt, fish and gather wood, berries and other fruits and materials for sustenance, social, spiritual and ceremonial purposes. Trading in a resource outside the aboriginal society in a manner akin to “commercial” activity may also constitute an aboriginal right in some circumstances. In R. v. Gladstone, the Supreme Court of Canada held that the Heiltsuk had an aboriginal right to trade commercially in herring spawn on kelp.
Additional examples of aboriginal rights are provided in Table 1.
Table 1 -- Example Legal Interpretations of Aboriginal Rights
| ABORIGINAL RIGHTS: | EXAMPLE: |
|---|---|
| Include the rights to engage in traditional activities. | Some general examples may include the right to fish, berry pick, hunt, trap and use trees, plants, wildlife and water for sustenance, social, spiritual and ceremonial purposes. |
| Are rights which are integral to the distinctive culture of an aboriginal society. | These are practices which are a central and significant part of the culture, and which distinguish First Nations’ cultures from other cultures and from each other. |
| Are site-specific and may vary between First Nations | A right of one First Nation to harvest cedar trees to build canoes may not apply to another First Nation which has not traditionally practised this custom in that area. |
| Depend upon patterns of historical occupancy and use of land. | One First Nation may have a right to use a nearby fishing site because they lived in that area and used the fishing site for generations. Another First Nation may not have thisright if they did not live near fishing sites nor use nearby sites. |
| May exist in traditional territories, not just Indian reserves or areas near to them. | Some Indian reserves are artificial in the sense that they are not the areas where First Nations traditionally lived or gathered resources. Aboriginal rights are protected in traditional territories and therefore may exist many kilometres away from reserves. |
| May be practised in a modernized form. | The exercise of aboriginal rights is not limited to traditional methods or implements. For example, downriggers may be used to fish and rifles to hunt. |
| Are exercised collectively by First Nations members. | Practices of only one family may not be aboriginal rights if they are not shared by other members of the First Nation. |
| May co-exist with non-aboriginal rights. | For example, an aboriginal right to hunt may be able to co-exist with a hydro right-of-way. |
| Include rights to teach aboriginal rights to the younger generation. | The aboriginal right to fish for food may include an aboriginal right to teach traditional fishing techniques to the younger generation. |
| Include rights to commercially trade in a resource if the FN traded in that resource on a scale best characterized as commercial, prior to contact. | The Heiltsuk have an aboriginal right to trade commercially in herring spawn on kelp. |
The provincial government will endeavour to make its best efforts to avoid any infringement of known aboriginal rights during the conduct of its business. Infringement will be avoided where Crown and aboriginal interests can co-exist either as a matter of fact, or as the result of a negotiated settlement.
To ensure that decisions the Province makes in regard to grants, tenures or other authorizations or designations are made in accordance with the law, the Crown should establish the following process:
5.1 Establish the Right
The Crown should establish whether an aboriginal right exists in the area covered by the proposed Crown grant, tenure, authorization or designation. This is ideally done through extensive consultation with the aboriginal peoples affected. Where necessary, it may also require relying on historical and anthropological evidence and knowledge.
If the aboriginal peoples affected are not willing to consult, legal advice should be sought from the Ministry of Attorney General. Non-participation itself does not give the Province the legal justification to infringe an aboriginal right. It may, however, limit the legal remedies available to the affected First Nation.
5.2 Determine Whether Crown Action Would Infringe the Right
If it is established that an aboriginal right exists, the Crown should determine whether its actions would infringe that right. The Crown must determine whether the aboriginal right can co-exist with the proposed activity. That issue is a matter of fact which can only be determined by detailed and careful analysis.
An infringement will occur if the action of the Crown significantly impairs an aboriginal right and as a result aboriginal peoples are undermined in their ability to continue with activities such as hunting, fishing and trapping for food, social and ceremonial purposes as well as the right to carry out activities intrinsic to their cultural traditions. It must be recognized that aboriginal rights, although having an historic and traditional basis, may be exercised in a modern manner. An infringement would not occur where Crown action has little impact and where the use provided for by the tenure can be easily accommodated with any existing aboriginal rights and where undue hardship does not result.
Recent court decisions have held as follows with respect to the infringement test:
5.3 Resolve Matters of Conflicting Interest by Negotiation
If the proposed Crown action and the aboriginal right cannot co-exist, and if infringement would result from the proposed activity, negotiations should be carried out to resolve the conflict.
The tools used to resolve the conflicting interest will fall within the scope of interim measures and may find expression in formal Memoranda of Understanding or Protocol Agreements with First Nations. Where an impasse has been reached between the Province and a First Nation, a dispute resolution mechanism may be employed.
5.4 Attempt to Justify the Infringement if it Cannot be Avoided
Although the provincial government will attempt to avoid infringement either by ensuring that government action and the aboriginal right can coexist, or by negotiating a settlement of any conflict, the Crown may wish, in some circumstances, to attempt to justify the infringement. In determining whether an infringement is justified, the Courts are likely to rely on the principles established in R. v. Sparrow. Thus, an infringement may be justified where it is deemed necessary:
In R. v. Gladstone, the Supreme Court of Canada recently identified the following as “compelling and substantial objectives” which would justify an infringement “in the right circumstances”:
The Sparrow test, expanded upon in Gladstone, was devised in the context of regulatory and legislative schemes relating to fishing and hunting. It is therefore somewhat unclear how it might be applied by the Courts to the issuance of Crown grants and tenures. Any attempt to justify should occur only after careful legal analysis of the particular situation by Ministry of Attorney General solicitors. An unlawful infringement might give the holders of the aboriginal right the ability to:
It must be noted that risk management concepts and due diligence do not constitute justification as identified in the legal rulings.
Whenever there is evidence that the activities listed below might infringe an aboriginal right, the process established in 5.0 above should be followed.
The Policy Framework applies to the following types of decisions:
Tenures
Authorizations
Restrictions
These general operational guidelines are intended to clarify the basic steps required to meet each principle of the policy framework (section 5.0). Their aim is to ensure that ministry-specific guidelines currently under development employ a consistent approach within the larger policy framework.
Government must take an overall corporate approach in order for this process to be efficient and to avoid duplication. Coordinated approaches across ministries will increase success in applying this policy.
Designation of Responsible Officials
Ministries should designate the officials responsible for carrying out the policy and the specific steps involved. The appropriate level may vary depending on the specific Crown land activities involved.
Timelines
Ministries should specify timeframes that are consistent with statutory requirements and with the timelines that are generally followed for each Crown land activity. Ministries should specify the exceptions, for example, under what circumstances any timelines would be extended for reasonable lengths of time if progress is being achieved.
7.1 Ministry Discretion in Application
Each ministry should establish and develop its own particular procedures for using discretion in the application of this policy. Approved procedures may be employed to determine in advance a range of situations where there is no or minimal risk of infringing aboriginal rights and which can thus be excluded from the requirements of this policy. For example, some areas of the Province may not contain aboriginal rights which would be infringed by certain types of Crown land activities. In addition, certain types or classes of Crown land activities may by their nature involve no risk or minimal risks of infringing aboriginal rights.
7.2 Establishing the Right
The Province is currently faced with a lack of information on aboriginal rights and few central mechanisms exist for compiling and making this type of information available on a shared basis. In the absence of a coordinated central database or inventory for obtaining information on specific First Nation's rights and interests, the following steps are recommended for establishing the existence of aboriginal rights:
7.3 Determine Whether Crown Action Would Infringe the Right
7.3.1 If it has been established that an aboriginal right exists, staff should:
- identify how First Nations believe the potential Crown action might infringe on any specific aboriginal right.
7.3.2 Based on information provided by First Nations and any other information gathered on this issue, determine whether the Crown action would infringe on that right, considering:
7.3.3 If the Crown action is likely to infringe on the aboriginal right, ministries should determine the specific nature of the infringement.
7.3.4 If it has been established that an infringement might occur, ministries should determine:
7.3.5 Ministries should identify, jointly with the First Nation, whether the aboriginal right can co-exist with the proposed project or activity in view of the range of tools that may be available to mitigate any infringement. This could be done through Interim Measures Agreements such as memoranda of understanding, co-management agreements or joint stewardship initiatives.
7.3.6 The lifetime of the Interim Measures Agreement should be clearly identified as well as any other considerations agreed to by both parties.
7.4 Resolve Matters of Conflicting Interest by Negotiation
7.4.1 Ministries should identify ways to reconcile competing interests through discussions with First Nations.
7.4.2 Ministries should define the aboriginal right through MOU discussions. The following factors should be considered:
7.4.3 Ministries should identify measures to limit the possible interference of the aboriginal right, for example:
7.4.4 Ministries should assess the following factors:
7.4.5 Ministries may reject the proposed activity.
7.4.6 Ministries may request legal assistance from the Ministry of Attorney General.
7.4.7 Note: Aboriginal rights cannot be abandoned or extinguished by a First Nation or the Province. However, the right and its location can be defined. A First Nation may consent to a proposed government activity in exchange for opportunities which will benefit them.
7.5 Attempt to Justify the Infringement if it Cannot be Avoided
7.5.1 If the conflicting interests cannot be resolved, the Crown may wish, in some circumstances to attempt to justify the infringement. Ministry of Attorney General solicitors should be consulted in these cases.
Legal justification for infringing aboriginal rights, particularly fishing and hunting, includes where it is necessary for conservation, public health and safety, and other "compelling and substantial" objectives (Sparrow). It is less clear what range of justifications would be applicable to the issuance of Crown grants and tenures.
7.5.2 Any attempt to justify should occur only after careful legal analysis of the particular situation. An unlawful infringement might give the holders of the aboriginal right the ability to seek damages or injunctions or have the grant or tenure which infringed the right invalidated, amended or reduced.
7.5.3 Note: Risk management concepts and due diligence do not constitute justification as identified in the legal rulings
7.6 Relationship to Interim Measures
Interim measures arrangements, including joint stewardship, can provide an agreed upon structure around meeting provincial obligations to avoid unjustifiable infringement of aboriginal rights. However, at no time would these arrangements set aside the obligation to avoid unjustifiable infringement.
Interim measures arrangements can serve to build on this policy framework in the same way that ministry-specific operational guidelines will build on it. In some cases it may be effective for staff and First Nations to prepare an agreement that identifies who consults with whom, about what, with what time-lines, towards what objectives, with what avenues of appeal/dispute resolution etc., rather than having ad hoc consultation on individual items.
Alternatively, interim measures agreements may set out what steps will be taken by the line agency to avoid infringement of aboriginal rights, i.e., what sites will be specifically managed or protected (e.g. burial grounds), how artifacts will be treated, how streams will be protected from logging damage or how First Nations will have input into planning for the future development. In addition, they may also identify how other interests will be represented.
Interim measures arrangements may have broader focus than simply avoiding infringement of aboriginal rights. For example, they may also identify other benefits to the First Nation such as employment, training, funding for data collection, etc. This is where they may depart from the obligation to avoid unjustifiable infringement of aboriginal rights and shift towards other commitments of government.
Many interim arrangements may have elements of both. For example, as noted in section 7.4.7, interim measures agreements may identify that a First Nation will consent to a proposed government activity in exchange for opportunities which will benefit them. Staff should never set aside the obligation to avoid unjustifiable infringement of aboriginal rights in order to negotiate an interim measures arrangement. They may want to negotiate an agreement to resolve conflict between an aboriginal right and a proposed Crown land activity in an attempt to have them co-exist. They may also wish to ensure other government commitments can be met. If an agreement fails, staff must still ensure that the policy framework is implemented.
PROVINCE OF BRITISH COLUMBIA
Revised January 29, 1997