Rule of Law

Does Mr. Sundown have a right to challenge the government in a court of law?

Canadian Constitutional law is based on the principle of the rule of law as stated in the preamble to the Canadian Charter of Rights and Freedoms. The rule of law states that government and individuals, regardless of status, are subject to the same law. Under this principle, the supremacy of the law provides that there are certain rights and obligations that all individuals acquire in Canada which protect them from the arbitrary and discretionary use of authority by governing bodies.

The government must act within the law. This relationship to the law allows for accountability between an individual and the government. Consequently, an individual has the right to call the government to account if it does not act within the law, and vice-versa.

If we apply the principle of the rule of law to this particular case, we see the province of Saskatchewan has decided to hold Mr. Sundown accountable for allegedly infringing a provincial law, the Parks Act. However, Mr. Sundown is contesting the validity of provincial legislation because he alleges that it violates his constitutionally protected treaty rights.

Onward to Federalism!!!!!

Federalism

Are the laws found within the Sundown case federal or provincial? Were they validly enacted? If the laws conflict, which one must be applied?

Aboriginal rights litigation is an intricate part of constitutional law, but I am hopeful that the following section will help you to navigate. When reading the article on the Sundown case, you most likely became aware there were various pieces of legislation that might be applicable to his situation. Some of the statutes are provincial, others, federal, and some have constitutional status, which means that they are part of the Constitution Act, 1982.

The Constitution Act, 1982, is a compilation of long-standing constitutional documents like the Constitution Act, 1867 (formerly the British North America Act, 1867), and newer documents like the Canadian Charter of Rights and Freedoms. It provides the written framework to our constitution.

The Constitution Act, 1967 establishes which level of government can make certain laws with respect to certain subjects. This Act will help determine the level of government that can regulate our case. Keep in mind the different pieces of legislation you will come across. Are they provincial or federal laws? Were they validly enacted? If the laws conflict, which one must be applied?

Pith and Substance and Paramountcy

A constitution has supremacy over all other statutes, whether enacted by the federal legislature in Ottawa and by the provincial legislatures. The jurisdiction of the federal parliament and the provincial legislatures is mapped out in s. 91 and s. 92 of the Constitution Act, 1867. A government, federal or provincial, may only enact statutes which deal with the subject matters it was given by the Constitution Act, 1867. Consequently, if a federal or provincial statute exceeds its constitutional jurisdiction, the legislation can be deemed null and void and without effect. If a validly enacted provincial law should conflict with a validly enacted federal law, the doctrine of paramouncy states that the federal law will stand and the provincial law can be inapplicable to the extent of the conflict.

Section 91

Section 91 lists and designates the "Powers of the Parliament" of Canada (federal government). It is within s. 91 that we find a section that pertains to our case, s. 91(24), which gives the federal government the jurisdiction to make laws in regard to "Indians and Lands reserved for Indians".[sic] (That is the way our forefathers designated Aboriginal peoples in 1867.)

Section 92

The "Exclusive Powers of the Provincial Legislatures" are enumerated under section 92. For example, under s.92A that we find another section that may pertain to our case as well. Section 92A. (1)(b) gives a provincial legislature the power to make laws exclusively in relation to development, conservation and management of non-renewable natural resources and forestry resources in the province. It is under s.92A that the province of Saskatchewan can be said to gain the legislative authority to enact the Parks Act.

So far we have two pieces of legislation that have been validly enacted. Because Mr. Sundown is a member to Treaty 6 and has been charged under the provincial legislation, the next step we have to take is to determine whether the provincial law has encroached upon the federal jurisdiction to make laws in regard to "Indians and lands reserved for Indians."

Are there any federal acts or constitutional provisions that limit the provincial legislation when Aboriginal peoples are affected? In this particular case, there is a federal statute entitled the Indian Act, 1951, which enacted under the authority vested by section 91(24). Under section 88 of the Indian Act it is stated that all provincial laws of general application apply to Indians subject to "the terms of any treaty".

The provincial legislation, the Saskatchewan Parks Act, is general in its application, which means that it applies to the public as a whole and does not single out a particular group. However, the federal Indian Act states that even provincial laws that are general in application are subject to the terms of any treaty, and consequently, the Parks Act is subject to the terms of Treaty 6. Therefore, if we find that there is a treaty right to build a cabin, the provincial statute as applied to the Joseph Bighead First Nation may be deemed inapplicable.

The next part of our journey guides us to look to the terms of Treaty 6 and the interpretation of treaty rights.

Treaty Interpretation

What principles and guidelines will the courts use when interpreting treaty rights?

To interpret a treaty, courts use principles established in R. v. Badger, and also R. v. Sundown, the case on which our example is based. These principles are:

1) A treaty represents an exchange of solemn promises between the Crown and the various Indian nations. It is an agreement whose nature is sacred.

2) The honour of the Crown is always at stake in its dealing with Aboriginal people. It is always assumed that the Crown intends to fulfill its promises. No appearance of "sharp dealing" will be sanctioned.

3) Any ambiguities or doubtful expressions in the wording of the treaty or document must be resolved in favour of the Aboriginal people. A corollary to this principle is that any limitations which restrict the rights of Indians under treaties must be narrowly construed.

4) The onus of proving that a treaty or aboriginal right has been extinguished lies upon the Crown. There must be "strict proof of the fact of extinguishment" and evidence of a clear and plain intention on the part of the government to extinguish treaty rights.

5) Treaty rights are specific and may be exercised exclusively by the First Nation that signed the treaty or those that later adhered to it. The interpretation of each treaty must take into account the circumstances that surrounded the signing of the treaty and the First Nations that later adhered to it.

The principles of treaty interpretation, help you understand the unique character and the historical context surrounding the signing of the treaty are important in interpreting the wording of treaties. Now on to constitutionally protected treaty rights!!!

Treaty Rights & Section 35 of the Constitution Act, 1982

Is the Joseph Bighead First Nation treaty right to hunt and fish for food protected under section 35 of the Constitution Act, 1982?

Treaties are negotiated contracts between a First Nation and the Crown. These rights are protected under section 35 of the Constitution Act, 1982. Section 35 states that Treaty rights in existence in 1982 are protected.

Treaty 6 is one of 11 numbered treaties that were concluded between the federal government and various first nations between 1871 and 1923. The Joseph Bighead First Nation adhered to Treaty 6 in 1913. The rights of this particular treaty were modified in 1930 by the Natural Resources Transfer Agreement signed between the federal government and the prairie provinces. The treaty right to hunt and fish commercially was extinguished by this agreement. The remaining treaty rights were modified to maintain a right to hunt and fish for personal sustenance on an expanded amount of territory. These rights are now protected under section 35. The case hinges on the question of whether the right to build shelter is part of a protected treaty right.

Do you dare to go forward?! Take a deep breath and jump!!!

Incidental to a Treaty Right

If the Joseph Bighead First Nation can establish a treaty right to hunt and fish, does that include the right to build a cabin for shelter?

The question asked in this case is whether the right to shelter is part of the right to hunt. The Courts design and use “tests” to analyse cases and interpret facts. Tests are devised to provide more predictability and consistency in decision making. The test set out by the court for this case is called the "reasonably incidental" test, which questions whether Mr. Sundown can establish that building a cabin is "reasonably incidental" to his Treaty right to hunt. The Court asked: Would a reasonable person, fully aware of the way in which hunting and fishing is done by the Joseph Bighead First Nation, consider the activity reasonably incidental to the Treaty 6 right?

Who is the reasonable person?

The reasonable person must be dispassionate and fully apprised of the circumstances of the Treaty Rights holder. This person must also be aware of the manner in which the First Nation hunted and fished at the time that the treaty was signed. That knowledge must be placed in today's context. For example, a form of shelter was always necessary to carry out the expeditionary hunting of the Joseph Bighead First Nation. At the time of the treaty, the shelter may have been a carefully built lean-to. The shelter appropriately evolved to a tent and then a small cabin. Thus a reasonable person, informed in the manner of hunting at the time of the treaty, can consider it in the light of modern hunting methods and can determine whether the activity in question -- the shelter -- is reasonably incidental to the right to hunt.

What is incidental?

The inquiry is largely a factual and historical one. The question is not whether a particular activity is "essential" in order for hunting to be possible, but rather, whether the activity was understood in the past and is understood today as significantly connected to hunting. Incidental activities are not only those that are essential, but include, activities which are meaningfully related or linked.

Application to the Facts

The Joseph Bighead First Nation has traditionally hunted in what was described as an expeditionary style. The hunters travel out from the base each day to search for game. The hunt may continue for two weeks. The base provides a place for dressing the game and smoking the fish. It provides the hunters with the shelter for the duration of the hunt. Without shelter, expeditionary hunting, the traditional method used by this first nation, would be impossible.

Now that we have discovered that shelter is incidental to the Treaty 6 right to hunt and fish for food, we have to go back to the provincial and federal government legislation. We have to look to see whether there is anything that can restrict the treaty right. Onward!!!

Treaty Infringement

Can anything restrict or alter a treaty right?

As we saw in an earlier section, Treaty 6 was modified in 1930 by the Natural Resources Transfer Agreement. Since that time, the Constitution of Canada has entrenched the protection of aboriginal rights. Treaty rights can be modified, but that modification is restricted. Recently, proposed changes to treaty rights have generally focussed on conservation of natural resources. The Natural Resources Transfer Agreements gave the federal and provincial governments the right to infringe treaty rights for ecological conservation purposes.

In the John Sundown case, the court decided that the province of Saskatchewan can regulate the right to build shelter for conservation purposes.

Conservation

When arguing the case, the Saskatchewan government conceded that the section of the Parks Act which was violated was part of a conservation plan.

However, the Court responded by stating that Saskatchewan may have been employing an unnecessarily restrictive definition of conservation. The decision in Sundown suggests that not only the conservation of game and fish should be considered, but also the conservation of the environment they inhabit. Legislation aimed at preserving habitat and biodiversity, the water quality of ground water and of lakes, rivers and streams, topsoil conservancy and the prevention of erosion may be laws in relation to conservation. Nevertheless, because the Saskatchewan government conceded that there was no conservation objective, it could not justify an infringement of Treaty 6 rights.

If the government wants to modify a treaty right what is the process that must be undertaken?

Infringement of a treaty right can only take place with "proper justification". This process suggested in Sundown is as follows:

1) The legislation may be clearly aimed at conservation.

2) Careful consideration of treaty rights must be undertaken.

3) The purpose of the legislation and accommodation of the treaty rights in issue must be clear in the wording of the regulation.

4) Infringement must be as little as possible and must not unduly impair treaty rights.