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Extinguishment by extirpation: the Nuxalk Eulachon Crisis

EXTINGUISHMENT BY EXTIRPATION:
T
HE NUXALK EULACHON CRISIS

by
Andrea Hilland
LL. B. University of British Columbia, 2002
B.A. University of British Columbia, 1999
A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF
THE REQUIREMENTS FOR THE DEGREE OF
MASTER OF LAWS
in
The Faculty of Graduate and Postdoctoral Studies (Law)
THE UNIVERSITY OF BRITISH COLUMBIA
(Vancouver)

5.2 Sovereignty

There are two basic theories of sovereignty at play in the Canadian legal context. The first is that Indigenous sovereignty existed when Europeans arrived in North America. This is the legal basis for treaty making between Indigenous nations and the Crown. As McLachlin C.J. acknowledges in Haida: "Treaties serve to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty" (3)

Treaties are also meant to protect Indigenous sovereignty – albeit, in a modified form.(4) 

Where no treaties exist, Indigenous sovereignty remains in its original form, and the reconciliation of Indigenous and Crown sovereignties is still required.(5)

The second theory of sovereignty is based on the presumptions of European superiority and Indigenous inferiority. As Macklem explains:  European assertions of territorial sovereignty in North America were premised on the assumption that Aboriginal nations were not sovereign nations at the time of European contact, an assumption in turn founded on the belief that Aboriginal peoples were inferior to European peoples.(6)

Under this theory, European sovereigns perceived Indigenous peoples as inferior, and therefore, without sovereignty. Europeans might then unilaterally assert sovereignty over Indigenous peoples and territories, thus subsuming them under European authority. The Canadian legal system is founded upon, and continues to be heavily influenced by, the second theory of sovereignty.During the negotiations that preceded the amendment of the Constitution to include section 35, many legal scholars and Indigenous peoples were optimistic that the provision would (3)

Haida Nation v British Columbia, 2004 SCC 73 at para 20.(4)

Kiera Ladner, "Take 35: Reconciling Constitutional Orders" in Annis M Timpson, ed, First Nations, First Thoughts: The Impact of Indigenous Thought in Canada, (Vancouver: University of British Columbia Press, 2009) 279 at 282.(5)

88 Ibid at 287. (6)

Patrick Macklem, Indigenous Difference and the Constitution of Canada (Toronto: University of Toronto Press, 2001) [Macklem, Indigenous Difference] at (6).

148.  Provide an opportunity for the Canadian legal system to reconsider colonial perceptions of sovereignty and reverse the injustices that Indigenous peoples have suffered under the colonial regime. Noel Lyon conveys this optimism: "Section 35 calls for a just settlement for Aboriginal peoples. It renounces the old rules of the game under which the Crown established courts of law and denied those courts the authority to question sovereign claims made by the Crown."7 Many academics and Indigenous peoples anticipated that section 35 would motivate the Canadian legal system to acknowledge and respect Indigenous sovereignty. The wording of the provision: "The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed" – is broad enough to permit the recognition and affirmation of Indigenous sovereignty. Ladner contends that "section 35(1) recognizes and affirms Indigenous constitutional orders as separate yet equal constitutional orders within the Canadian Constitution."(8)

However, the Canadian judiciary has not followed this interpretation, opting instead to limit the possibility that Indigenous sovereignty is relevant in the consideration of section 35(1).In Sparrow, the SCC confirmed the presumed supremacy of Crown sovereignty by stating that "there was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title to such lands vested in the Crown."(9)

However, as Macklem observes, "the legitimacy of Canadian sovereignty over Aboriginal peoples and Aboriginal territory is far from self-evident."(10)

Ladner argues:
The fact is that Indigenous people never ceded their rights and responsibilities (collective sovereignty) under their own constitutional order; nor did they consent to be ruled by the Crown or its operatives (such as Parliament). These claims…are legal conventions that were created by colonial authorities to (7)

N Lyon, "An Essay on Constitutional Interpretation" (1988) 26 Osgoode Hall LJ 95 at 100. (8)

Ladner, supra note 4 at 295. (9)
R v Sparrow, [1990] 1 SCR 1075 [Sparrow] at 1103.(10)

Macklem, Indigenous Difference, supra note 6 at 74.
149 legitimate European expansion and its territorial claims vis-à-vis other would-be colonizers.(11)

Borrows explains that unilateral Crown sovereignty is a legal construct intended to dispossess Indigenous peoples:
Sovereignty's incantation is like magic.... This mere assertion is said to displace previous Indigenous titles by making them subject to, and a burden on, another's higher legal claims. Contemporary Canadian jurisprudence has been susceptible to this artifice.... [A]s in past centuries, sovereignty heralds the diminishment of another's possessions.(12)

Turpel suggests that "The acceptance without critical examination…of the underlying sovereignty of the Crown over Aboriginal peoples situates the [Sparrow] decision of Supreme Court of Canada squarely within the colonial tradition."(13)

Moreover, Christie observes that "contemporary jurisprudence not only borrows from colonial justifications developed and maintained during Canada's overtly colonial period, but actually sanctions, affirms and strengthens this colonial conceptual framework." (14)

According to Ladner, "The courts have…decided to ignore Indigenous perspectives and to perpetuate colonialism and its hierarchy of knowledge, histories and peoples." (15)

The judicial assumption of the supremacy of Crown sovereignty has been followed in all Aboriginal rights jurisprudence since Sparrow. The judiciary's ongoing belief in the supremacy of Crown sovereignty allows the Crown to continue to exert its jurisdiction to the detriment of Indigenous peoples, territories, resources, and rights. (11)

Ladner, supra note 4 at 290.(12)

John Borrows "Sovereignty's Alchemy: An Analysis of Delgamuukw v. British Columbia" (1999) 37 Osgoode Hall L J 537 at 562.(13)

Mary Ellen Turpel, "Home/Land" (1991-92) 10 Can J Fam L 17 at 20.(14)

Gordon Christie, "A Colonial Reading of Recent Jurisprudence: Sparrow, Delgamuukw and Haida Nation" (2005) 23 Windsor YB Access Just 17 at (21). (15)

Ladner, supra note 4 at 285. 150

5.3 Constitutional Supremacy

In Sparrow, the SCC also circumvented the notion of constitutional supremacy with respect to Aboriginal rights. Section 52(1) of the Constitution provides that:The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.Despite this provision, the SCC held that because section 91(24) of the Constitution Act, 1867 grants the federal government authority to legislate with respect to "Indians and lands reserved for Indians," Aboriginal rights under section 35 are not absolute. McNeil rebuts this reasoning.  He contends that section 35(1) "can be interpreted as barring Parliament from infringing Aboriginal rights, while leaving intact Parliament's jurisdiction to enact legislation protecting or enhancing Aboriginal rights."16 Although the SCC could have interpreted sections 91(24) and 35(1) in a way that enhanced Aboriginal rights, the SCC inferred that these sections permit the federal Crown to interfere with Aboriginal rights. In Sparrow, the SCC held that the constitutional supremacy provision: does not mean that any law or regulation affecting aboriginal rights will automatically be of no force or effect by the operation of section 52….Legislation that affects the exercise of aboriginal rights will nonetheless be valid, if it meets the test for justifying an interference with a right recognized and affirmed under s. 35(1).  (17)

The SCC's use of section 91(24) to dilute section 35(1) was informed by the colonial belief in Indigenous inferiority. Section 91(24) epitomizes the colonial presumption that the Crown can unilaterally exercise authority over Indigenous peoples and lands. The SCC relied on the federal Crown's authority under section 91(24) to find that section 35(1) does not provide absolute16 Kent McNeil, "Envisaging Constitutional Space for Aboriginal Governments" (1993) 19 Queen's Law Journal 95 [McNeil, "Envisioning Constitutional Space"] at 111 [emphasis in the original].(17)

Sparrow, supra note 9 at 1109. An extensive critique of Sparrow's infringement test is detailed in chapter 4.151 Protection for Aboriginal rights.18 As McNeil acknowledges, "the standard denial of the inherent right of the Aboriginal peoples to govern themselves…appears to have been the Supreme Court's starting point for assessing the effect of s. 35(1)."(19)

As Roach observes, section 52 provides the ultimate remedy for a breach of section 35.20If the SCC applied section 52 to Aboriginal rights, then any law or regulation that interfered with existing Aboriginal rights would be of no force or effect to the extent of the inconsistency; there would be substantial consequences for breaching Aboriginal rights. However, no court has used section 52 in relation to Aboriginal rights. The legal consequences for breaching Aboriginalrights are minimal at best, and are often non-existent. This leaves Aboriginal peoples with little power to protect their lands and resources via the Canadian legal system.(21)

A stricter application of constitutional supremacy is required to effectively recognize and affirm Aboriginal rights.

5.4 Reconciliation

Rather than giving full effect to section 35, the SCC in Sparrow suggested that the federal Crown must reconcile its duties under section 35 with its section 91(24) authority over Indians and lands reserved for Indians.22 Post-Sparrow, the concept has been reconfigured into a reconciliation of pre-existing Aboriginal societies with Crown sovereignty. Murphy observes 18 Ibid. This, of course, makes no sense with respect to Inuit and Metis who are defined as "Aboriginal" under section 35(2) of the Constitution, but are not "Indians".(19)

McNeil, "Envisaging Constitutional Space", supra note 16 at 113. (20)

Kent Roach, "Remedies for Violations of Aboriginal Rights" (1991-1992) 21 Man LJ 498 at 499. (21)

Aboriginal peoples have used other methods of protecting their rights, such as media campaigns, and economic strategies (e.g. educating shareholders about the negative impacts companies are having on Aboriginal rights), but such methods are beyond the scope of this thesis. For a detailed analysis of Nuxalk resistance strategies, see: Lauren Penny, Empowerment Strategies for Native Groups Facing Resource Crises: A case-study of the Nuxalk Nation, Bella Coola, British Columbia, MA Thesis, Concordia University 2004) [unpublished]. (22)Sparrow, supra note 9 at 1109.
152 that "The SCC has located reconciliation at the heart of its jurisprudence on Aboriginal rights."(23)

Even so, as Vermette points out, "There is nothing in the wording of section 35(1) demanding the Court reconcile any competing claims."(24)

Instead, "The judicial principle of reconciliation has been created out of thin air by the Supreme Court of Canada."(25)

Walters acknowledges that "despite having used the language of reconciliation for more than a decade, Canadian judges have never been very explicit about what they think reconciliation means in the context of Aboriginal and non-Aboriginal relations."(26)

According to Goldenberg, because no "court has specified the precise meaning and content of the reconciliation principle, it remains a rather vague and largely unexamined concept despite its fundamental importance to the purpose and nature of Aboriginal rights under the Constitution."(27)

The Canadian legal system's approach to reconciliation has repercussions for the legitimacy of Canadian sovereignty. As Macklem explains, "the legitimacy of Canadian sovereignty rests on its capacity to co-exist with Aboriginal sovereignty."(28)

He contends that Canadian sovereignty is illegitimate to the extent that it relies on colonial ideologies of Indigenous inferiority:Given its inherent ethnocentrism, the proposition of Aboriginal inferiority cannot stand as a valid reason for excluding Aboriginal nations from the distribution of sovereignty on the continent. Both the original exclusion of Aboriginal nations from the community of nations entitled to assert sovereignty over North America (23)
Michael Murphy, "Civilization, Self-Determination, and Reconciliation" in Annis M Timpson, ed, First Nations, First Thoughts: The Impact of Indigenous Thought in Canada, (Vancouver: University of British Columbia Press, 2009) 251 [Murphy, "Reconciliation"] at 251. (24)
D'Arcy Vermette, "Dizzying Dialogue: Canadian Courts and the Continuing Justification of the Dispossession of Aboriginal Peoples" 29 Windsor YB Access Just 55 at 63. (25)Ibid at 71.(26)
Mark Walters, "The Jurisprudence of Reconciliation: Aboriginal Rights in Canada" in W Kymlicka & B Bashir, eds, The Politics of Reconciliation in Multicultural Societies (Oxford: Oxford University Press, 2008) 165 at 183.(27)André Goldenberg, "‘Salmon for Peanut Butter': Equality, Reconciliation and the Rejection of Aboriginal Commercial Rights" (2004) 3 Indigenous LJ 61 at 82-83. (28)
Macklem, Indigenous Difference, supra note 6 at 123.153 and the continuing refusal to recognize the inherent sovereignty of Aboriginal people offend formal equality. (29)Therefore, "to the extent it fails to recognize Aboriginal forms of sovereignty, the present distribution of sovereignty in North America is unjust."(30)
The subject of reconciliation, or the matter that is being reconciled (such as Indigenous).
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