Documentation:Open Case Studies/FRST522/Right to Harvest

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Right to Harvest: Issues and Impacts in R. vs Sappier, R. vs Gray, Canada

Introduction

R v. Sappier, R v. Gray is a case heard by the supreme court of Canada involving the right of indigenous people in Canada to harvest timber for personal use on their ancestral territories. The case is significant in that it helped to refine the understanding of indigenous rights to use of resources on Crown land as outlined in the Canadian Constitution. In order to provide further context for the understanding and interpretation of these issues a discussion on how indigenous rights are situated in Canadian Law is necessary and provided below. This includes a discussion on section c 35 of the Constitution Act of Canada as well as legal precedents relevant to the case. This case broadened and modernized the interpretation of Aboriginal rights in Canada. The implications of the case are legal and political in nature. To some indigenous scholars R v. Sappier; R v. Gray provides an example of how a rights framework could be viewed as a step towards decolonization. [1] [2]. However, it is important to note that others remain skeptical of the ability to the courts to overcome the deeply colonial history of the Canadian Legal system.

Aboriginal Rights in Canadian Law

Before introducing the details of R v. Sappier; R .v Gray this section provides some contextualizing background information about the structure of Canadian law and how the right and title of indigenous peoples have been regulated within it. Throughout its history as a settler colonial state Canada has made strategic use of both the pre and post confederation legal systems to constrain the rights and sovereignty of indigenous peoples. These facts are well known.[3][4] However, it is easy to lose sight of this important context and in doing so of how government regulation of daily activities of indigenous peoples flows from a legal structure that is designed to impede indigenous sovereignty. Looking at the deep structure of Canadian law not only exposes its colonial inheritance but also allows for an understanding of how the courts and Aboriginal rights when utilized appropriately have the potential to be site of important advancements for decolonization. [5]

The discussion here focuses on the interpretation of law as it relates to the constitution of Canada. However, it is important to note that any discussion of Aboriginal rights in Canada takes place within a context in which the Indian Act continues to be upheld by government. The Indian Act is an oppressive act of parliament still in persistence from the 19th century that outlines definitions for Aboriginal identity and reserve and band structure. It continues to be viewed as one of the most blatantly colonial pieces of legislation still in force today and its removal has long been advocated for by Indigenous communities and activists. [6] [7][8] [9]

Section 35 of the Constitution Act, 1982

A transformative moment in the Canadian legal system came with the patriation of the Canadian Constitution from the British parliament in 1982. This was brought about with the adoption of the Constitution Act, 1982. This included many important changes to the legal system including the adoption of the Charter of Rights and Freedoms. While the Charter defined the human rights guaranteed to all people in Canada in section c. 34 of the Constitution Act, a separate section, section c. 35 was adopted to address the rights and status of indigenous people in Canada. Aboriginal rights are possessed only by indigenous people and conceived of as collective rights extending from relationships to the land prior to colonization. The contrast between Aboriginal rights under c. 35 and the universal rights of the charter guaranteed under c. 34 is an important one in Canadian law. Some scholars have stressed that maintaining Aboriginal rights as distinct may provide an important avenue for legal gains [10].

How section c. 35 has been interpreted and applied in the cases heard by the Supreme Court since the adoption of the Constitution Act of 1982 has defined what Aboriginal rights are and the Canadian state attempts to reconcile the sovereignty of indigenous nations - the autonomy of indigenous peoples - with that of its own. [11] [12]

The text of Section c. 35 reads as follows:

(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.

(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.[13]

The conclusion of many scholars has been that in spite of the wording of the law the legal supremacy of the Canadian state of indigenous nations remains intact, as summarized by Asch (2007). [14]

“In the final analysis, Canada still rests is foundational legitimacy on the ideology and legal reasoning of English Colonialism. The lynchpin of the ideology and legal regime is the firm conviction that the acquisition of sovereignty, legislative authority, and underlying title by the crown is unproblematic even without the agreement of the Indigenous peoples whose territories we settled (110)”

An recognition of this rationale is important to understanding the decisions made by the Supreme Court. What is key is that while section c. 35 may have affirmed existing rights, it leaves open the opportunity to provide redress to rights or title that may be viewed by the court as having been surrendered during the negotiation of historical treaties and land claims agreements. It is through delving into the complexity of individual treaties and advocating for an expansive interpretation of section c. 35 that indigenous legal scholars see opportunity in the legal system advancement of decolonial aims. The following section addresses in greater detail how sections c. 35 has received interpretation by the court.

Case Law and Legal Precedent

There are two main stems of legal decisions that stem from section c. 35. There are those the address issues of title and those that address issues of rights. Issues of title have been addressed in a number of ground breaking legal decisions that help to determine what title means from the prospective of the supreme court. This has included Calder v. British Columbia more recently and R. v. Delgamuukw. These legal cases have established the legal meaning of title under Canadian law and outlined the state's "duty to consult" with indigenous nations.[15] While an understanding of these cases relating to title is informative, the most relevant in the interpretation of R v. Sappier, R v. Grey are those that relate to rights. Of these R v. Sparrow and R v. Van der Peet are particularly important.

R v. Sparrow (1990)

This case involved the activities of Ronald Sparrow of Musquem's use of fishing nets in a manner that violated the terms of his Band's fishing licence. R v. Sparrow was the first case to be heard that addressed issues of defining the meaning of Aboriginal rights under section c. 35 of the Constitution Act. The case was important in defining what constituted infringement upon Aboriginal rights and in what cases Canadian government would be justified in doing so. While the case did not prevent the government from restricting access to rights for indigenous people it did provide a precedent that committed the government to only doing so with substantial cause. Perhaps unsurprisingly the highly mutable interpretation of the outcome of this case was met with a good deal of scrutiny. Due to its precedent setting status, it continues to contribute to legal decision making on related issues in spite of the critique.[16] [17]

R v. Van der Peet (1996)

This case involved Dorothy van der Peet of Sto:lo's selling of a small number of Salmon. The decision in this case led to what is known as the Van de Peet test or “Integral to a Distinctive culture test”. This case came to define the courts understanding of how and which activities as carried out by indigenous people could be understood as rights. The case remains central to the decision making on indigenous rights and has been applied in R .v Sappier and R v. Grey. However, it has come under a great deal of criticism more recently for enforcing a narrow conception of indigenous people.[18][19][20]

The Case: R v. Sappier, R v. Gray (2006)

The respondents in the case Mr. D. Sappier, Mr. C. Polchies who are Maliseet and members of the Woodstock First Nation and Mr. D.J. Gray who is Mi'kmaq and member of the Pabineau First Nation. While the case involves three separate individuals due to the similarity of the issues they brought before the court their cases were heard at the same time. All three respondents were charged with unlawful possession or cutting of timber on crown land under the Crown lands and forests act of New Brunswick. The wood that was harvested was strictly for personal non-commerical use and the respondents argued that they had an Aboriginal right to use timber for this purpose under section c 35. Sappier and Polchies had harvested the wood to build a home for Polchies had also used the left over wood as fire wood for others in the community. In the case of Grey, he had harvested to wood to make furniture from his home. What was at issue was whether or not harvesting of wood was protected under section c. 35 of the Constitution Act. The wording of the section places a focus on ‘existing’ pre-contact activities. In this case there was very little evidence to support that harvesting trees for the proposes of survival or maintenance of daily life was engaged in prior to contact with Europeans.

In order to determine how it should decide the court employed what has become known as the the Van der Peet test in reference to the decision made in R. v Van der Peet (1996). In doing so the court was deciding on whether or not the harvest of timber that the respondents has engaged in the respondent could be said to be ‘integral to a distinctive’ culture. The justices decided that as it had previous interpretation had been too limiting. The idea of distinctiveness it was determined did not have to constitute something that was unique. It was also decided that activities was were undertaken for the purpose of survival were not less integral to the life of indigenous people that other cultural activities.

Furthermore, as outlined in below in the court summary of its decision, limiting what counts as legitimate to an indigenous culture to fixed historical understands of such has harmful implications.

“A practice undertaken for survival purposes can be considered integral to an aboriginal community’s distinctive culture. The nature of the practice which founds an aboriginal right claim must be considered in the context of the pre-contact distinctive culture. “Culture” is an inquiry into the pre-contact way of life of a particular aboriginal community, including means of survival, socialization methods, legal systems, and, potentially, trading habits. The qualifier “distinctive” incorporates an element of aboriginal specificity but does not mean “distinct”. "The notion of aboriginality must not be reduced to racialized stereotypes of aboriginal peoples. A court, therefore, must first inquire into the way of life of the pre-contact peoples and seek to understand how the particular pre-contact practice relied upon by the rights claimants relates to that way of life. A practice of harvesting wood for domestic uses undertaken in order to survive is directly related to the pre-contact way of life and meets the “integral to a distinctive culture” threshold". (38) (emphasis added)”

As will be discussed in the greater detail in the legal implications section below, the outcome of this ruling was precedent setting in that it allowed the courts to bring an understanding of rights into a more a context more relevant to the contemporary rights of indigenous peoples. [21]

Implications

Anything that involves the honing of the legal rights of indigenous nations and peoples is necessarily political. This ruling in R. v Sappier is important in that it helps to define what legal challenges nations will confront as they engage in negotiations with the state to determine how Aboriginal rights are defined. The two most important outcomes of the case are as follows. First, as the case affirms the Aboriginal right to harvest of timber of crown land, has important implications for indigenous peoples belonging nations in which there have not been treaties agreed upon such as large areas of British Columbia. Beyond these implications the strong wording that is including by the justices in the rulings is significant and provides direction as to the spirit in which future legal decision on related issues should be made. The expands upon the recommendations made in Van der Peet that the court has a responsibility to be generous in its interpretation of the law. Expansive legal interpretation of c 35 is established in Van der Peet which states:

“The substantive rights which fall within the provision must be defined in light of this purpose; the aboriginal rights recognized and affirmed by c. 35(1) must be directed towards the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown.”[22]

Second, the case brings the understanding of rights into a context more relevant to the contemporary understanding of indigenous people lives. Summarizing this the justices in R v. Sappier, R v. Grey state

“If aboriginal rights are not permitted to evolve and take modern forms, then they will become utterly useless. Surely the Crown cannot be suggesting that the respondents, all of whom live on a reserve, would be limited to building wigwams (paragraph 49).”[23]

While the intent of this statement is to encourage an interpretation of law with leads to the improvement of relations between Indigenous peoples and the Canadian state, many Indigenous thinkers continue to be critical of the notion of 'reconciliation' in the first place and view such malleability as part of the modern manifestations of settler colonialism. As Leanne Simpson (2017) argues:

"...the state sets up different controlled points of interaction through its practices - consultations, negotiations, high-level meetings, inquiries, royal commissions, policy, and law, for instance, that slightly shift, at least temporarily and on microscales , our experience of settler colonialism….The structure shift and adapts, however, because it has one job: to maintain dispossession by continually attacking indigenous bodies and destroying indigenous families. Neoliberal states manipulate the processes that maintain settler colonialism to give the appearance that the structure is changing… Colonialism as a structure is not changing. It is shifting to further consolidate its power, to neutralize out resistance, to ultimately fuel extractivism” [24]

While at the same acknowledging clearly the colonial history of the Canadian state and refusing to admit its power to revoke indigenous sovereignty, other thinkers remain more optimistic about the strategic possibilities of the courts and Aboriginal Rights. In this vein John Borrows (2016) states:

“The notion that Indigenous peoples’ ways of life can disappear through government action replicates troubling stereotypes. It assumes there was something inferior, incompatible, less desirable or less worthy about Indigenous rights before they were given explicit protection. In the Aboriginal rights context, extinguishment is an offensive doctrinal concept that builds upon and entrenches discriminatory assumptions and stereotypes. … If properly deployed, rights could be an important step in discarding Canada’s colonial past (emphasis mine). Rights discourse could challenge abstract concepts about what it means to be indigenous in Canada; Indigenous peoples are often portrayed as past-tense peoples in Canada (18).”[25]

These two strains of interpretation are at the heart of how the importance of R. v Sappier and other similar cases are viewed. Discussing the R. v Delgamuukw ruling Maria Morellato (2008), describes this distinction eloquently

Crown decisions regarding Aboriginal and treaty rights over traditional lands, resources and governance structures can galvanize the rights of Indigenous peoples within Canada, advance their quest for self-determination within our Canadian constitutional fabric and, in doing so, facilitate the necessary reconciliation process. Conversely, Crown decisions and decision-making processes can engender further injustice, marginalization, poverty and suffering. The choice is truly ours. (1) [26]

Conclusions and the Path Forward

R v. Sappier, R v. Gray, while ostensibly a legal decision about the use of timber by several indigenous men, is a case that ultimately deals with some of the core issues of how Aboriginal rights are viewed within the constitution. It follows a series of legal decisions which aid in the interpretation of section 35 of the Constitution Act. This has led to improvement in how the law is interpreted and the potential for this section to be interpreted and understood in future legal proceedings. In order to protect and reaffirm indigenous rights in the future it is important to support the struggles of indigenous nations within the Canadian legal system. Such procedures may emerge as an important component of decolonizing the relationship between the Canada state and the indigenous nations on whose land it is situated. At the same time however it is important to support the struggles of nations outside of the court.

References

  1. Boyd, Neil (2002). Canadian Law: An Introduction. Toronto: Toronto.
  2. McNeil, Kent (2013). "Aboriginal Rights in Canada: The Historical and Constitutional Context." International Journal of Legal Information. 41 (1).
  3. Mackey, Eva (2016). "Unsettled Expectations: Uncertainty, Land and Settler Decolonization". Winnepeg: Fernwood Publishing.
  4. McNeil, Kent (2013). "Aboriginal Rights in Canada: The Historical and Constitutional Context." International Journal of Legal Information. 41 (1).
  5. Borrows, John (2016). Unextinguished: Rights and the Indian Act. UNB Law Review. 67(3).
  6. Asch, Micheal (2007). "Calder and the Representation of Indigenous Society in Canadian Jurisprudence." In Hamar Foster, Heather Raven, and Jeremy Webber (eds.), Let Right Be Done: Aboriginal and Treaty, the Calder Case and the Future of Indigenous Rights, 101-10. Vancouver: University of British Columbia Press.
  7. Borrows, John (2016). Unextinguished: Rights and the Indian Act. UNB Law Review. 67(3).
  8. Mackey, Eva (2016). "Unsettled Expectations: Uncertainty, Land and Settler Decolonization". Winnepeg: Fernwood Publishing.
  9. McNeil, Kent (2013). "Aboriginal Rights in Canada: The Historical and Constitutional Context." International Journal of Legal Information. 41 (1).
  10. Kulchyski, Peter (2013). Aboriginal rights are not human rights : in defense of indigenous struggles. Winnipeg, Manitoba: ARP Books
  11. Boyd, Neil (2002). Canadian Law: An Introduction. Toronto: Toronto.
  12. McNeil, Kent (2013). "Aboriginal Rights in Canada: The Historical and Constitutional Context." International Journal of Legal Information. 41 (1).
  13. Constitution Act, 1982
  14. Asch, Micheal (2007). "Calder and the Representation of Indigenous Society in Canadian Jurisprudence." In Hamar Foster, Heather Raven, and Jeremy Webber (eds.), Let Right Be Done: Aboriginal and Treaty, the Calder Case and the Future of Indigenous Rights, 101-10. Vancouver: University of British Columbia Press.
  15. Morellato, Maria (2008). The Crown’s Constitutional Duty to Consult and Accommodate Aboriginal and Treaty Rights. National Center of First Nations Governance Research Paper. http://fngovernance.org/publications/research_article/the_crowns_constitutional_duty_to_consult_and_accommodate_aboriginal_and_tr
  16. R v. Sparrow
  17. Tokawa, Kenji (2016). Van Der Peet Turns 20: Revisiting the Rights Equation and Building a New Test for Aboriginal Rights. UBC Law Review. 49(1).
  18. R v. Van der Peet
  19. Borrows, John (2016). Unextinguished: Rights and the Indian Act. UNB Law Review. 67(3).
  20. Tokawa, Kenji (2016). Van Der Peet Turns 20: Revisiting the Rights Equation and Building a New Test for Aboriginal Rights. UBC Law Review. 49(1).
  21. R v. Sappier
  22. R v. Van der Peet
  23. R v. Sappier
  24. Simpson, Leanne Beasamosake (2017). As we have always done: Indigenious Freedom Through Radical Resistance. Minneapolis: University of Minnesota Press.
  25. Borrows, John (2016). Unextinguished: Rights and the Indian Act. UNB Law Review. 67(3).
  26. Morellato, Maria (2008). The Crown’s Constitutional Duty to Consult and Accommodate Aboriginal and Treaty Rights. National Center of First Nations Governance Research Paper. http://fngovernance.org/publications/research_article/the_crowns_constitutional_duty_to_consult_and_accommodate_aboriginal_and_tr




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