STATUS OF ABORIGINALS IN CANADA ESSAY:

(On every foundations exam there is a essay question on aboriginal rights. They are usually 35-50% of the entire
exam. They focus on Van der Peet or other significant cases where treaties, rights or title was established. It is a good
idea to have this information handy for the exam question, it provides a good layout on how to approach a question
and tie everything in – in the time allotted)

Thesis: Aboriginals Hole a Unique Legal and Constitutional Position: they hold rights and title like no other
Canadian.

INTRO: Define Status:

- 91(24) of the Constitution Act, 1867, “Parliament with exclusive legislative authority over “Indians, and lands
reserved for the Indians.”
- Indeed, s. 91(24) was the only reference to Aboriginal peoples in the Canadian Constitution until s. 35(1) of the
Constitution Act, 1982 came into force, recognizing and affirming the aboriginal and treaty rights of Aboriginal
peoples in Canada.
- Status arose from early relations with Aboriginal Peoples:
o The doctrine of reception (by which colonial laws are “received” into new territory) does not incorporate
indigenous wisdom and learning.
 So there is an important distinction between CONQUER and SETTLE (that latter of which ignores the
presence of Aboriginals; it entails the automatic reception of English law). Most of Canada was
considered Settled (English Courts being the arbiters).

Mitchell v. MNR [2001] 

 European settlement did not terminate the interests of aboriginal peoples arising from their historical
occupation and use of the land.
 To the contrary, aboriginal interests and customary laws were presumed to survive the assertion of
sovereignty, and were absorbed into the common law as rights, unless
1. they were incompatible with the Crown’s assertion of sovereignty,
2. they were surrendered voluntarily via the treaty process, or
3. the government extinguished them

Aboriginal Rights:

 Aboriginal RIGHTS are rights held by aboriginal peoples, not by virtue of Crown grant, legislation or treaty, but
“by reason of the fact that aboriginal peoples were once independent, self- governing entities in possession
of most of the lands now making up Canada.” (Sparrow)
 Lamer C.J. in R v Van der Peet (1996) pointed out that “when Europeans arrived in North America, aboriginal
peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had
done for centuries.” This fact distinguishes aboriginal peoples from all other minority groups in Canada, and
explains why aboriginal rights have a special legal, and now constitutional status.

 Articulated the legal test that was to be used to identify an “existing aboriginal right” within the meaning of s
35 of the Constitution Act 1982: Van Der Peet.
1. in order to be an aboriginal right, an activity must be an element of a practice, custom or tradition,
integral (ie sufficiently central) to the distinctive culture of the aboriginal group asserting the right
2. The practice must have developed before “contact”, ie before the arrival of Europeans in North
America
3. The practice could evolve over the years as the result of contact, but a practice that has evolved into
modern forms must trace its origins back to the pre- contact period (ie bow and arrow by the gun).
Contemporary practices that developed “solely as a response to Europeans influences” do not qualify
  Courts have been willing on interpreting Aboriginal Rights broadly. R v Powley, included the Metis population
via a pre-control test.
 Sparrow and Guerin – s35(1) grounded in the Government has responsibility to act as a fiduciary with respect
to Aboriginals. Previous treaties and relations have demonstrated that the relationship is rooted in the crowns
honor and in Aboriginal Title. Aboriginals acknowledged the sovereignty of British Parliament via acceptance to
treaties, and UK acknowledged existence of Aboriginals and their cultures, laws, societies.
o Special trust relationship.
 Yet, unique status is not absolute. According to Mary Hurley (Crows Fiduciary), the special relationship and
responsibility of the governemtn must be the first consideration in determining whether the government is able to
infringe an Aboriginal right via action or legislation. Essentialy a question of justification.
 S35 is outside of the Charter. Thus, Protections under s 35 are not subject to justification under s 1 of the
Charter (rights are not subject to “such reasonable limits prescribed by law as can be demonstrably justified in a
free and democratic society”)
o Sparrow – test for justification unique

 If they can justify abridging a right, they are under a duty to consult based on the fiduciary relationship: Haida
Nation v BC.
o Duty to engage in meaning consultation and accommodation as part of a process or reconciliation flowing
from the Crown’s duty of honorable dealing:
o New s 35.1 introduced – declares that federal and provincial governments committed to principle that
before any amendment made to s 91(24) or s 35 or s 25, a constitutional conference will be convened and
Aboriginal representatives invited to discuss proposed amendments (privilege accorded to no other group
outside government- emphasizes special status of Aboriginal peoples)

Aboriginal Title:

- The SCC in Calder and Guerin recognized that at common law, aboriginal title survived European settlement
and assumption of sovereignty by British Crown, unless surrendered or lawfully extinguished
- Aboriginal title was recognized by the Royal Proclamation of 1763, which governed British imperial policy for
the settlement of British North America.
- Since 1982, Aboriginal title is protected by s 35, Constitution Act 1982
Delgamuukw v BC
o Content of aboriginal title/how it’s protected by s 35(1)/requirements for proof
 Unique dimensions of aboriginal title: Aboriginal title is a sui generis interest in land.
 One dimension is INALIENABILITY (lands can’t be transferred sold or surrendered to anyone
othr than Crown).
 Another dimension of aboriginal title is its SOURCE (possession before the assertion of British
sovereignty)
 A further dimension of aboriginal title is the fact that it is held COMMUNALLY (aboriginal title
cannot be held by individual aboriginal persons)
o Proof of aboriginal title
 Aboriginal title is different than aboriginal rights (which are defined in terms of activities).
Aboriginal title is a right to the land itself.
 In order to make out a claim for aboriginal title, the aboriginal group asserting title must satisfy
the following criteria
 The land must have been occupied prior to sovereignty. (If present occupation is relied on as proof
- must be a continuity past/pres)
 At sovereignty, that occupation must have been exclusive.
o Infringement of aboriginal title: the test of justification
 The aboriginal rights recognized and affirmed by s. 35(1), including aboriginal title, are not
absolute. 
 Infringements must satisfy the test of justification. 
Extinguishment of Aboriginal Rights
o Aboriginal rights (including aboriginal title) can be extinguished in 2 ways:
o (1) by surrender and (2) by constitutional amendment

Tsilhqot’in Nation v BC
- The description of Aboriginal title as a usufructuary right was favoured by the SCC in the 1980s
(usufructuary meaning a legal right to use, benefit from and derive profit from property belonging to another
person)
- To summarize, aboriginal title is a SPECIES of aboriginal right which differs from aboriginal rights to
engage in particular activities.

TREATIES:

R v Marshall; R v Bernard  Aboriginal treaty right: the test

- Scope of treaty right is to be determined by what trading activities were in the contemplation of the parties
at the time the treaties made. 
- But treaty rights are not frozen in time.  Modern peoples do traditional things in modern ways.  “The question is
whether the modern trading activity in question represents a logical evolution from the traditional trading activity
at the time the treaty was made” [25]

Marshall and Bernard decision sets limits on aboriginal title.

- The Court adopted strict proof of aboriginal title.
- The Court further stated that aboriginal title would require evidence of exclusive and regular use of land for
hunting, fishing or resource exploitation. Seasonal hunting and fishing in a particular area amounted to
hunting or fishing rights only, not aboriginal title.

CONCLUSION:

(Highlights: Report of the Royal Commission on Aboriginal Peoples)

- ISSUE: Courts are a costly, ineffective and insensitve way to solve land claim issues.
- The existing land claims settlement process is deeply flawed: It assumes that no Aboriginal rights apply on
land unless A’s can prove otherwise.
- The Commission proposes that a new process be established via treaty process.

Treaties: the mechanism for change

- As complex as the project appears, it can be done. The central mechanism of change is the treaty.
- To set the stage, we recommend that Parliament declare its support for the treaty relationship in the form of a new
Royal Proclamation.
- The main objectives of a new treaty-making process would be to establish the full jurisdiction of those nations as
part of an Aboriginal order of government ; expand the land and resource base under their control
BIJURALISM:

(There will most likely be a question on bijuralism in Canada. Either in a problem question or essay / short answer.
The text does not do a great job at explaining the concept, so I have included some extra commentary from the ‘extra
reading’ in the syllabus. The main cases here is Hillaire, know this case and understand the repercussions of the
outcome)

- As a legacy left by the colonisation of North America by France and Great Britain, Canadian bijuralism is an
expression of the coexistence of the civil law and common law legal traditions in Canada.

- This coexistence found its first formal expression in the Quebec Act, 1774. The division of powers found in the
Constitution Act, 1867 confirmed this coexistence by expressly providing at subsection 92(13) that, outside the
federal heads of power found under section 91, “Property and Civil Rights in the Province” fall within the
exclusive jurisdiction of the provinces.
- Canada has maintained its legal duality because, historically, the common law and the civil law have
complemented one another.
- This broad residuary power over property and civil rights in the province is exercised in Quebec in a civil law
environment whereas, elsewhere in Canada, this power is set in a common law environment. Canadian provinces
have legislative jurisdiction in all matters relating to property and civil rights.

- Federal law, although relatively comprehensive, is not complete insofar as private law rules are concerned. For
federal law to apply within a province or a territory, it must often call on provincial or territorial law, notably in
matters relating to property and civil rights.

- Unless otherwise provided by law or unless the context excludes recourse to provincial or territorial private law,
both the common law and the civil law coexist as authoritative sources of Canadian federal law.

- Yet, harmonization of federal legislation with the civil law of Quebec has long been an issue.

- The bijural nature of the Canadian legal system, along with the obligations that derive from bilingualism, has an
unquestionable impact on the drafting of federal legislation. In that respect, federal legislation needs to speak to
Canadian citizens in a language that acknowledges, in both English and French, the common law and civil law
legal traditions. A situation that arises, for example, where a legislative provision is based on a concept or term
specific only to the common law in both language versions.

- Where it employs a private law concept without defining it, reference must generally be made to the applicable
private law in order to interpret the relevant concepts where civil rights are affected.

- In this case, there is complementarity between the federal enactment and the private law of the provinces. Such
complementarity exists with the private law of all of the provinces, that is to say, with the civil law of Quebec as
well as with the private law of the other provinces.

- In Hillaire: The issue was whether the federal statute in question, the Superannuation Act, permitted recourse to
the civil law of Quebec to provide for its application to a dispute from Quebec, or whether the common law rules
complete that Act as suppletive law.

- The case dealt with provincial private law in the application of federal legislation and reaffirmed the principle of
complementarity of provincial private law in the interpretation of federal private law legislation.

- It was argued that the dispute was solely a matter of federal public law, an area for which the source of law is the
common law. Accordingly, the public policy rule that no one may profit from his crime would apply to the crime
 of manslaughter and Ms. St-Hilaire would not be entitled to the benefits of the Superannuation
Act, notwithstanding the civil law rules on unworthiness to inherit.

- Mr. Justice Décary stated that, as a general rule, where a federal enactment is applied in a dispute from
Quebec, “the suppletive law is the civil law”. In view of the differences between the private law of the provinces,
he concluded that “asymmetry is the rule under the Constitution”

- Although Mr. Justice Létourneau and Madam Justice Desjardins agreed with the analysis of Mr. JusticeDécary on
the question of complementarity, they nonetheless concluded that Ms. St-Hilaire was unworthy of inheriting.

SEPARATION OF POWERS:

(There is usually a very broad question on the separation or division of powers of the three elements of the Canadian
legal system (judicial, legislative, executive). It is either a broad over arching question – or a compare and contrast
question – or - a question relating to how they are related, interconnect etc.)

QUESTION: It is often said that under our constitutional system, the role of the legislature is to make the law, the role
of the judiciary is to interpret the law, and the role of the executive is to apply the law. In practice, does this
theoretical understanding always unfold?

INTRO:
- In the governmental structure of Canada there is no clear separation of powers between the judicial, executive,
and legislative branches of government.
- The relationship of the three branches of government  – the legislature, the executive, and the judiciary – is
characterized by checks and balances, which promote the rule of law.
- First discuss the importance of the doctrine of separation of powers.
- Prima facie, separation of powers is rooted in the Constitution Act 1867. Yet, convention and practical realities
have lead to a blurred reality.
- It has become common in constitutional doctrine to conceive that the institutions of government have proper roles
to play in Canadian democracy.  In carrying out their functions, each branch should have proper regard and
“mutual respect” for the role of the other branches.

Judicial Branch:
- Guardians of the constitution, ensure that Canada continues to be a society committed to the rule of law and
individual liberty.
- Role of the courts will often overlap into other territories.
- The Judicial branch has constitutional power to try all cases, to interpret the laws in those cases and to declare any
law or executive act unconstitutional. 
- Yet, the judiciary is checked by power in the executive to appoint its members; by power in the legislature to enact
amendments that overturn judicial decisions, including many constitutional decisions (Charter of Rights, s. 33);
and also by the combined power of the executive and legislative branches to remove judges.

- SCC ability to give “advisory opinions” to the federal government (the government may ask the Court to
consider questions on any important matter of law or fact, especially concerning the interpretation of the
Constitution.

- Legitimacy of Constitutional judicial review: SCC’s interpretation of the “vague” Charter and vague language
in the Constitution Act, 1867 leads to concern is that when judges give concrete shape to the rights provided in the
Charter, and invalidate laws that do not conform to their interpretation of these requirements, the rule of law may
become subtly transformed into the rule of unelected judges
- Limits on Review: Justiciability
- The justiciability of a dispute asks whether the issue is so political or speculative that the courts should not be
involved. The concern is that the courts may go beyond their constitutional role in Canada if they were to get
involved in controversies that are outside of their expertise of interpreting and applying the law.
- See page 25 (judicial review) Article by McLauclin! Democratic role of judges.
- In Re Quebec Secession, the Court examined only the "legal framework" of the province's ability to secede,
but not the merits of the decision to do so.
- Here they show restraint in encroaching into the realm of politics & maintaining some level of separation.

- As already mentioned, the jurisdictional division between courts is not clean split.
o The debate focuses on the application of section 96 which gives the federal government the authority to
appoint judges to the Superior Courts.
o GG appoints Judges of superior district and county courts in each province, but s96 allows provinces to
create their own courts, yet federal government governs their wages.
o Appointment process – mainly done by Gov in Council – possibility of political influence. (article).

- Encroached by other groups, such as the creation of administrative tribunals to hear cases. 

- The ability of the SCC to “enforce” executive decisions creates a tension between the appropriate relationship of
judiciary and executive (see Doucet-Boudreau case)

- Respect by the courts for the legislature and executive role is as important as ensuring that the other branches
respect each others' role and the role of the courts; (Vriend v. Alberta, [1998] 1 S.C.R. 493, para. 136).
- Look to Singh and Reference Re Quebec and Remuneration of Judges Decisions  Judicial independence
(valued aspect of the separation of powers doctrine)

Legislative and Executive Branches:

- Parliament is invested with constitutional power to enact all federal laws and to establish federal courts.
- Parliament is checked by the power of the executive to call the House of Commons into session (s. 38) and by the
power of the judiciary to declare laws enacted unconstitutional
- Parliament is also checked by power in the executive to reserve Bills passed by the Houses of Parliament and to
disallow laws enacted (secs. 55-7).

- The parliamentary tradition adopted by Canada’s founders gives pre-eminence to the legislative branch, to which
the executive is made subordinate.

- There is a considerable degree of integration between the Legislature and Government (i.e. executive) – it is the
same individuals, on a practical level, who control the legislative and executive branches of government. Talk
about idea of responsible government here.

- Executive: derives its power from laws or statutes passed by the legislature, they are responsible to the legislature
(ie responsible government. System of responsible government, Cabinate members are drawn from the legislative
branch, almost always the House of Commons for the federal cabinet. Ministers may hold office pending election
to the commons or while a senator but all ministers are expected to be also members of the legislature.

- Constitutional convention enhances integration between the legislature and executive in two respects. First, the
formal executive, the Governor General, is controlled by responsible ministers of the Crown. Second, the
legislature's powers and priorities are in practice controlled by other executive instrumentalities unknown to the
formal constitution – the PMO (office of the Prime Minister), PCO (Privy Council Office) and Cabinet.
-
- The power of a tribunal to review cases depends on the governments ability to encroach on section 96
powers. The leading case on this is the Supreme Court decision of Re Residential Tenancies Act (1981).
- NB: Admin tribunals ‘span the divide beween executive and the judicial branch” (pg 17)
- They are created for purpose of executing government policy, not reviewing as a judge would. Here they can
be seen to make quasi judicial roles. (ocean port and Bell Canada cases ) pg 17 and top of pg 20
- See page 25-26 (Baker case, admin procedure fairness) (and review of substance in admin decisions
Dunsmiur and Canadian Human Rights Commission KEY CASES).

-Yet they are limited: Delegated authority: parliament cannot delegate to provincial legislatures and vice versa (inter
delegation thow alance of division of powers contained in s91 92 of the constitution (pg 19)

Conclusion: mutual respect  Dialogue

- In modern constitutional doctrine, the rise of this mutual respect “gives rise to a more dynamic interaction among
the branches of government,” what is also called “a dialogue” between the institutions of government.
- “the Canadian Constitution does not insist on a strict separation of powers;” (Reference Re Secession of Quebec,

CRITIQUE THE ROLE OF INTERNATIONAL LAW IN CANADIAN DOMESTIC LAW:

What is the approach? Dualist tradition re: treaties (i.e. needs to be “implemented” in legislation); customary
international law (no special approach)

Advantages about Canada’s approach re: international law:

- Democratic participation in the international law making process
- Keeps in check separation of powers (ie. Prevents executive from “law making”)

Problems:
- Implementation issue: Baker’s approach too strict (why can’t there be “implied” implementation?);
hesitancy after baker to treat international law as binding (generally treated as merely persuasive) – this
weakens the fabric of law – on the verge of becoming “optional” law to be applied at judge’s discretion – this
would weaken international respect for us

- Courts’ use (or lack thereof) of presumption of legislative intent (see article): uncertainty of the effect of that
presumption in context of Charter interpretation; unclear, thanks to Baker, as to whether presumption applies
equally to Canada’s international obligations and non-binding international norms; particularly suspect in
context of interpreting customary international norms – Baker = “values” of international instruments may
help inform contextual approach to statutory interpretation if dealing w/ unimplemented norm, but what about
presumption? Although int.

- See Guzman  acknowledges issues.

- Unclear what SCC’s position is re: customary international law: There is no unequivocal statement on
whether custom is part of Canadian law or not. The SCC decisions in Spraytech and Suresh leave room to be
interpreted as suggesting that customary law, including even just cogens, is not directly binding in Canada.
The two decisions permit the inference that custom merely helps inform a contextual approach to statutory
interpretation, furnishing a potentially relevant and persuasive source for this power, but nothing more.

Conclusion:
- Article saying that we have not lived up to obligations. Recommends an interpretation treaty.
BENEFITS / DISADVANTAGES OF UNWRITTEN CONSTITUTIONAL PRINCIPLES

1) List the unwritten principles.

2) Positives include:
(1) These are fundamental concepts about which everyone can agree, so it makes sense that they will affect
judicial decision making (even the highest court of India has recognized almost identical unwritten principles,
with the addition of one more);
(2) Problems or situations may arise which are not expressly dealt with by the text of the Constitution. In order to
endure over time, a constitution must contain a comprehensive set of rules and principles which are capable of
providing an exhaustive definition for our system of government;
(3) They are only resorted to when the express wording of the Constitution is insufficient to solve a problem
(which is a valuable limit on the doctrine, and prevents it from being used inappropriately);
(4) We are used to unwritten legal principles (that’s what our common law system is built on)

3) Negatives include:
(1) by swaying away from written text, we get into a realm of uncertainty, ambiguity, cant find rules as a laywer;
(2) they are so broad that they can be found to apply to any issue;
(3) To recognize these principles can be seen as an unauthorized judicial expansion of their power in the
constitutional sphere;
(1) 4) A written constitution promotes certainty and predictability.

CONSTITUTIONAL CONVENTIONS - WHAT ARE THEY? GIVE SOME EXAMPLES?:

a. See book for definition

(1) Selecting a governor general: the Queen follows the Canadian PM’s recommendations (based on an
“instrument of advice”); in turn, the governor general and lieutenant governors for each province are bound by
constitutional convention to exercise their powers with the advice of the Cabinet of their respective
government
(2) Selecting members for the Senate: the governor general follows advice of the PM
(3) The governor general calls Parliament into session on the advice of the PM (i.e. summoning Parliament)
(4) Parliament can be prorogued through a speech by the governor general in the Senate Chamber
(5) PM to resign his or her government or seek parliamentary dissolution after a “no confidence” vote by the
House
(6) Responsible government (and all of its understood “rules”)
(7) The individual commanding the confidence of the House of Commons (that is, the majority) is appointed PM
(8) Only privy councillors who are in the Cabinet are entitled to exercise the powers of the Privy Council
(9) The PM, leader of the Cabinet/government, possess authority to exercise so-called personal prerogatives,
e.g., he/she may select people to fill some important appoints that are technically made by the governor
general
(10) Formal executive bodies are limited to the governor general and lieutenant governors, federal and
provincial Cabinets, and the system of governmental departments and ministries that are overseen by
individual ministers, including the civil service

ADVANTAGES AND DISADVANTAGES OF PRECEDENT

a. Advantages/benefits: (i) Aids in the stability and coherence of the law, making it more predictable (ii)
Provides fairness in decision making; (iii) Promotes efficiency and eliminates sources of error (such as judicial
bias); (iv) Fulfills a symbolic role by recognizing the relationship between courts and the legislature; (v)
Provides some certainty (liberty to decide each case as you think right without any regard to principles laid
down in previous cases would result in uncertainty of law); (vi) Possibility of growth (new rules can be
established and old rules can be adapted to meet new circumstances and the changing needs in society) (talk
 about how feminists would enjoy this aspect of the doctrine, without which the laws today relating to female
participation in society might be primitive)

b. Disadvantages/problems: (i) Rigidity (once a rule is laid down, it is binding even if the decision is thought
to be wrong) + Perpetuation of errors; (ii) Bulk/complexity (so much law, difficult to learn it all; lay people
can’t access it); (iii) Slowness in growth (the system depends on litigation for rules to emerge); (iv) Easy to
distinguish (give case example); (v) Also some intellectual uncertainty (as the law is in constant evolution)

IS THE PARLIAMENT OF CANADA TRULY “SUPREME”? DISCUSS:

Arguments for:
Consider that the scope of Parliament’s law-making jurisdiction is endless, so law is it conforms to the
Constitution (rules governing division of powers between fed and prov legislatures), and constitutionally
protected individual rights and liberties found in the Charter (this goes back to parliamentary supremacy);
Consider that Parliament is free to pass careless or bad laws; Consider that even if the ministry tricks
Parliament into passing a law, that alone is insufficient for a court to strike it down (see Turner v Canada);
Consider that Canadians aren’t entitled to due process or procedural fairness in the law-making process (so
long as the procedures in the Constitution have been met); Consider that there can be expropriation without
compensation by way of legislation that makes such an intent clear (Authorson v Canada)

Arguments against: Consider the division of powers found in ss 91 and 92 which identify certain subjects.
Explain the overlap between sections. Don’t spend too much time on this, as this is not a constitutional law
exam.

DO YOU THINK THERE NEEDS TO BE A REFORMING OF THE JUDICIAL APPOINTMENT

PROCESS?
WHY/WHY NOT?:
A. Strengths? A number of filters exist before judges are selected; flexibility in appointing allows for ability to
tailor bench to needs of society at the time
B. Concerns? Political patronage; abundance of discretion; lack of transparency/accountability; the appointment
process is simply policy, and cannot be legally enforced, which gives rise to concerns that it may be
manipulated in individual rather than societal favour;
C. What should be done?
D. Note: discuss both times of federal appointments – non Supreme Court and Supreme Court (and note the
unique concerns w/ Supreme Court appointments)

E. The Court consists of one Chief Justice, and eight associate judges. The Constitution empowers the Governor
General to appoint Supreme Court judges. In practice, appointments are made on the advice of the Prime
Minister. To support the Prime Minister in this duty, the Minister of Justice compiles a shortlist of candidates
with input from the provincial law societies.
F. By tradition and convention, only the Cabinet, a standing committee in the larger council, advises the
governor general and this advice is usually expressed exclusively through a consultation with the prime
minister. Thus, the provinces andparliament have no formal role in such appointments, sometimes a point of
contention.
G. In 2006, an interview phase by an ad hoc committee of members of parliament was added. JusticeMarshall
Rothstein became the first justice to undergo the new process. The prime minister still has the final say on who
becomes the candidate that is recommended to the governor general for appointment to the court