Advancing Aboriginal Rights

Advancing Aboriginal Rights The Limitations of the Charter and Litigation Emily Owens 211426905 November 23, 2015 Communities and the Law While there certainly have been significant victories for Aboriginals in their fight for equal treatment and recognition from the Canadian Government under the Charter of Rights and Freedoms, these so called achievements are not representative of their struggles at large, and have done little to aid in their overall battle as they’re faced with obstacles of historically embedded systemic discrimination and inequality. Due in large to these sentiments, many of the ‘efforts’ by the Canadian government to accommodate or aid Aboriginals have fallen short of having a meaningful impact, and instead, simply serve as political band aids; the Charter being one of them. In the next few pages I will be examining the interaction between Canadian Aboriginals and the Charter of Rights and Freedoms, stemming from its creation and context, to specific court cases and methods of interpretation under section 35; highlighting the shortcomings of litigation as a means for resolution. It is my intention to demonstrate that while the Charter is largely regarded as both a shield and sword for the protection of minority rights, the discriminatory sentiments which resulted in its inadequate representation of Aboriginal goals, and the restrictive guarantees of section 35 coupled with the process of litigation, have limited its significance as a valuable means for the protection of Aboriginal rights. The Charter, and its application through litigation, while experiencing some success, is, overall, an inefficient primary means to deal with the issue of Aboriginal rights, and has served as a band-aid solution to avoid further action by the government in addressing the root causes of the disputes at greater political costs. The Charter of Rights and Freedoms Three years ago marked the 30th anniversary of the Charter of Rights and Freedoms, and in celebration, newspapers across the country published articles praising its contributions to Canadian society. Schwartz (2012), for example, writing for the CBC, among commending the document for bringing forth change for gay, reproductive, and linguistic rights, recognized its role in strengthening Aboriginal rights. While it may be true that there have been some ‘victories’ for the Aboriginals under the Charter, including Sparrow, Tsilhqot’in Nation, and Marshall, they exist within a restrictive and inefficient framework for ultimate dispute resolution. Aboriginal rights were perhaps the most controversial rights included in the 1982 constitution package; originally excluded from the original drafts, and only included after public outcry and hearings, despite resistance from provinces concerned with the effects of such rights on provincial lands and jurisdiction (Morton & Knopff, 2000). Even such, and with mention of rights for Aboriginals included into the document, the concept of individual and human rights contextualized and protected by the Charter do not coincide with the definition of rights supported and desired by Aboriginals. The Aboriginal Rights that these people are fighting for are not individual human or property rights, but collective rights to be recognized as a sovereign nation. Mary Ellen Turpel (1989), a Cree woman and Saskatchewan judge, explains that There are no notions among Aboriginal Nations of living together for the purposes of protecting an individual interest in property. Aboriginal life has been set out in stories handed down through generations and in customary laws, sometimes represented by wampum belts, sacred pipes, medicine bundles, and rock paintings. For example, the teachings of the Four Directions is that life is based on four principles - trust, kindness, sharing and strength. While these are, responsibilities which each person owes to others, they represent the larger function of social life. (p. 152) She further explains that “the collective or communal bases of Aboriginal life does not really have a parallel to individual rights; they are incommensurable” (ibid). Although having at least some Aboriginal representation included in the Charter can be seen as a large victory, these rights are framed and applied as individual, and not collective rights; therefore, not accurately representing the concept of Aboriginal Rights which these people have continuously been fighting for. In order to understand why the government included these restrictive provisions in the Charter, yet did not recognize the self-government or the collective rights that the Aboriginals were demanding, we can look to the sentiment and perceptions that have been expressed towards them from early colonization up to the present. The Aboriginals dedicated their efforts to be recognized in the Constitution as having a right to self-government, but these negotiations failed miserably, and as the final meeting of the First Ministers in 1986 came to an end, they were left with the unamended Charter to fall back on; a document framed by a weak and restrictive concept of their desires. From viewing the film Dancing around the Table (1987) it is evident that the failure of this negotiation for self-government by the Aboriginal Peoples was due in large to the government refusing to recognize Aboriginal Peoples as distinct Peoples with cultures different, although equal, from their own. Trudeau’s blatant disrespect for the Aboriginal representatives present at the meetings reflected a presumption held by the Canadian government that these people were primitive and inferior, in the sense that they were at ‘lesser’ states of development. Turpel (1989) echoes this understanding, explaining that No government has ever dealt with Aboriginal Peoples on an equal basis - without seeing us as means to an economic goal (settlement and development), as noble savages, the pagans without civilization, or as specimens for anthropological investigation and scientific collection. Genuinely recognizing another People as another culture is more than recognizing rights of certain persons. It's not simply recognizing Peoples of another colour, translated in European terms as "race." Placing the emphasis on race or minority (and consequently on rights) has the effect of covering over the differences at work to the majority's advantage. Aboriginal cultures are not simply different 'races' - a difference explained in terms of biology (or colour): Aboriginal cultures are the manifestations of a different human (collective) imagination. (p. 150) These sentiments echo the theory put forth by Barbara Perry (2011), that “biology is the hook on which we hang our assumptions about the holder of a given set of characteristics. In other words, difference is not biologically given, but socially constructed” (p. 16). We can apply what Lorde refers to as the mythical norm, in which Somewhere, on the edge of consciousness, there is a mythical norm, which each of us within our hearts knows ‘that is not me.’ In America, this norm is usually defined as white, thing, male, young, heterosexual, Christian and financially secure. It is within this mythical norm that the trappings of power reside within this society. (p. 19) Perry applies this, suggesting that a dominant norm is established, “against which all others are (unfavourably) judged” (p. 19). She further specifies that, “not only are the Others different; by definition they are also aberrant, deviant, and inferior” (ibid). She explains that structures of oppression operate through a set of dualisms, which can take many forms, including superior/inferior, strong /weak, etc, “wherein the second half of the binary is always marked as a deficiency relative to the superior capacities and privileges of the norm” (p. 20). The sentiment looming over the interactions of the Canadian government towards the Aboriginal Peoples was one of superiority, as the white men (the Canadian Government) who regarded themselves as more advanced in society, perceived these groups to be inferior, and treated them as if they were a joke whose concerns paled in comparison to their own vision of Canada and its governance. By denying them the right to self-government and absolute land ownership, they essentially were claiming that it wasn’t worth their time, and instead, threw this ‘political hot potato’ of dealing with the Aboriginal dispute to the court to settle through the restrictive context of the Charter, and the grueling process of legislation. By including Aboriginal rights into the Charter they were praised for their recognition of these Peoples, and then were able to proceed with their own economic goals with little accountability to owe them anything further. It is, therefore, arguable that this bandaid solution has not done enough, especially with its contradictions of individual and collective rights representation, and as evidenced by continuing and repetitive disputes before the Court over 30 years later. This argument can be summed up with Turpel’s evaluation that Clearly, as a historical document, [The Charter] represents only one story of Canada that is, the story of the colonialists. It is difficult to move in a certain direction as a People if individuals can challenge collective decisions based on infringements of their individual rights and if collective goals will not be understood or prioritized. Some people may view this as the triumph of democracy, but it makes the preservation of a different culture and the pursuit of collective political goals almost impossible. (p. 153). Restrictions of Charter Application There is a perception supported by right wing critics of judicial activism, such as Morton and Knopff, as recognized by Justice Bastarache, that “the court has been very result-oriented and has been inventing rights that weren’t even in the treaties that were brought before the court in the case” (Roach, 2011). He makes the point that the “court is maybe seen as being unduly favourable to the native position in all cases, and has this sort of agenda for extending rights” (ibid).. Morton and Knopff (1996) argue that the Charter has given minorities a “disproportionate and unwarranted ability to use litigation to reverse the policies of democratically accountable arms of government… imposing its agenda for life-style issues on an unwilling majority” (p. 72). However, the Charter, and its role in recognizing Aboriginal rights through SCC decisions is largely exaggerated, and this perception that it has brought about substantial, ‘effortless’ improvements for the Aboriginal Peoples simply cannot be extrinsically justified. Litigation for the recognition of Aboriginal rights is an extensive process, made even more difficult by wording of section 35 and its interpretation and application by the courts. I plan to demonstrate in this analysis that the application of the Charter for Aboriginal disputes can be viewed as an example of structural discrimination, “which reflects policies and practices that, on the surface appear race, gender, class, or nation neutral but nonetheless have disparate effects on different groups” (Perry, 2011, p. 21). Gaining recognition of Aboriginal rights, albeit through the limited definition and context of the Charter, has proven to be an extremely challenging task. Including recognition of Aboriginal rights and treaties into the Charter was eventually qualified under Section 35 with the addition of the phrase “existing.” In deciding cases of Aboriginal rights, the Court articulated a restrictive test that required an activity to be “part of a practice, custom, or tradition that was integral to the distinctive culture of the Aboriginal group claiming the right at the time of contact in order for the activity to be protected as a section 35 Aboriginal right” (Roach, 2001, p. 135). Roach (2001) also tells us that “Aboriginal rights were limited to those activities that made the culture of the Aboriginal society distinctive or truly what it was; they could not include a practice that was only incidental to a distinctive activity or only a response to European influences” (ibid). Justice L’Heureux-Dube is quoted in dissent, saying that this harsh burden of proof that is required forces Aboriginal claimants to “embark upon a search for a pristine Aboriginal society and to prove the continuous existence of the activity;” subsequently making Aboriginal rights litigation an expensive form of “trial by anthropologist” (p. 136). The Court’s fixation with the point of European contact also creates the risk of freezing Aboriginal rights at the point of time that may have had no particular significance to the dynamic societies. “Given the generally poor state in which Aboriginal people found the first European explorers to Canada, it is certainly questionable as to what degree of significance they attached to contact with a rag tag group of men in danger of dying or freezing to death” (Borrows, 2002). This also raises a difficult question: “What would it be like for Canadians to have their fundamental rights defined by what was integral to European people’s distinctive cultures prior to their arrival in North America?” (Roach, 2001, p. 136). Roach specifies that judges are actually “reluctant to recognize rights that go beyond sustenance or the provision of a moderate livelihood” (ibid), and furthermore, he points out that none of them are absolute, even without being explicitly subject to section 1. Actually, in the first case dealing with Aboriginal rights, a prosecution of a member of the Musquem Band for fishing contrary to the terms of a license, the SCC recognized an ability for governments to limit rights. They concluded that Rights that are recognized and affirmed are not absolute. Federal legislative powers continue, including, of course, the right to legislate with respect to Indians… federal power must be reconciled with a federal duty and the best way to achieve that reconciliation is to demand the justification of any government that infringes upon or denies Aboriginal rights. (R v. Sparrow [1990] 3 CNLR 160 at 180-181) Despite the fact that the government would need to bear a heavy burden of proof to limit these rights, the existence of the ability for them to do so seems to fly in the face of their very existence. These judicial interpretations of Aboriginal rights protected from the Charter impose restrictive and challenging conditions for victories through litigation. Although this may not have been the intention, the obstacles for Aboriginal peoples to have their cases heard, and moreover, won, are extensive and unreasonable, considering the particular, and unique, obstacles which they face. As Douglas Eyford (2015) points out “Aboriginal rights claims highlight the tremendous inefficiencies of litigation as a dispute resolution tool. Judicial proceedings are time-consuming and expensive and do not always provide certainty of result” (p. 29). It can take decades from the date a cause of action arises to the exhaustion of the right to appeal. Unique aspects of the treatment of evidence in Aboriginal rights claims, including expert opinions and oral histories about pre-contact practices, draw out proceedings. Trials can be multi-year events. Many of the threats to Aboriginals exist in time sensitive matters, such as a company attempting to develop on their lands; therefore, it is unfair to expect them to take this matter up through the courts, which could take a tremendous amount of money and time while the resources they’re fighting to protect are destroyed. Furthermore, despite the significant expenditure of time and resources, many Aboriginal rights cases do not resolve the underlying issue between the parties. Decisions rarely result in a straightforward outcome with one party winning and the other losing. Delgamuukw, for example, resulted in an order for a new trial. And, while the Tsilhqot'in Nation obtained a declaration of title in its action, implementing the decision will require negotiations with the Crown. There are also examples of Canada being slow, or worse reluctant, to carry out required policy changes that result from judicial decisions (Eyford, 2015, p. 29). The disputes are also complicated further due to incoherence between Aboriginal communities. If they are unable to unite together to bring these issues before the court, they risk putting up a weak front in their fight for rights and recognition. Furthermore, one other noteworthy roadblock is the rift created by these disputes between Aboriginals and non-aboriginals, who fear that their property and hunting rights may be compromised by the court ruling in favour of Aboriginal interest. Take R. v. Marshall (1999) for instance. This court battle over fishing rights in N.S inflamed tensions between Aboriginal and non-native fishermen in the Maritimes and Quebec. Donald Marshall Jr., a Mi'kmaq man from Nova Scotia had been charged with fishing eels out of season, fishing without a license and fishing with an illegal net, but argued that Aboriginal rights stemming from 18th-century treaties with the British Crown exempted him from fisheries regulations. After the SCC ruled in his favour, Native lobster fishermen interpreted the ruling as granting them rights to catch lobster out of season, causing a clash with their non-native counterparts, who feared lobster stocks would be jeopardized. This led to a particular heated showdown in Burnt Church, N.B. The court’s affording broad and unspecific privileges to the Aboriginal peoples, (which they do not have the authority to regulate further), that non-aboriginals are not privy, instead of having these rights embedded and regulated more strictly by the elected legislature and executive, creates unnecessary conflict between the two groups. It is argued that one other roadblock for Aboriginals is that there is an underrepresentation of Aboriginal presence in the justice system to aid in litigation and for these Peoples under the Charter. However, despite the systemic nature of the countless oppressive forces that continue to burden many Aboriginal people, there are now many Aboriginal scholars, artists, activists and leaders that are working to challenge the status quo. Hopefully we will see such action by our newly appointed Aboriginal minister of Justice, Jody Wilson Raybould. Although there are many other important areas that must be examined in order to develop a complete understanding of the historic and ongoing struggle for Aboriginal Peoples to have their rights recognized and respected by the government of Canada, I think it is sufficient to say that the Charter of Rights and Freedoms is not an acceptable primary tool for the further advancement of Aboriginal Rights. The restrictive and discriminatory framework which this document was created has served to underrepresent the desires and goals of the Aboriginals and their negotiations with the Trudeau government; acting as a political bandaid for a much more complicated issue. The incoherence of the interpretation of individual, rather than collective rights, and furthermore, the restrictions of litigation as a means for applying these rights, proves that there needs to be more done to provide for, and respect these people; and this action should not be left solely to the judiciary. Although there may be high political risk in recognizing and appeasing a minority population, it isn’t enough for the government to simply say ‘sorry’ for their discriminatory actions that have set the tone for continuous demeaning conditions for these people as members of Canada, without also working towards responsible and accountable solutions. Works Cited Borrows, J (2002) Recovering Canada: the resurgence of indigenous law. Toronto: University of Toronto Press. Bulbulian, M. (1987). Dancing Around the Table, Part One. National Film Board of Canada. Eyford, D. (2015). A New Direction: Advancing Aboriginal and Treaty Rights. Indigenous and Northern Affairs Canada. Retrieved from http://www.aadncaandc.gc.ca/eng/ 1426169199009/1426169236218 Morton, F, Knopff, R (1996). Canada’s Court Party. Rethinking the Constitution. Toronto: Oxford University Press. Morton, F, Knopff, R. (2000). The Revolution of the Charter and the Court Party. Toronto: University of Toronto Press. Perry, B. (2011). Framing Difference. Diversity, Crime, and Justice in Canada. Toronto: Oxford University Press. Roach, K. (2001) The Supreme Court on Trial. Judicial Activism or Democratic Dialogue. Toronto: Irwin Press. R v Marshall (No 2) [1999] 3 S.C.R. 533 R v. Sparrow [1990] 3 CNLR 160 at 180-181 Schwartz, D. (2012). 6 Big Changes the Charter has Brought. Retrieved from http://www.cbc.ca/news/canada/6-big-changes-the-charter-of-rights-has-brought- 1.1244758 Turpel, M. (1989). Aboriginal Peoples and the Canadian Charter of Rights and Freedoms Contradictions and Challenges Canadian Women Studies, 10(3), 149-157 Running head: ADVANCING ABORIGINAL RIGHTS