In 1992 Native leaders focused again on the question of constitutional recognition of Aboriginal rights. Another First Ministers’ Conference produced the Charlottetown Accord in an attempt to replace the failed Meech Lake Accord on constitutional change.

Photo of Ovide Mercredit, Native leader in Canada, at Charlottetown Accord BBQ, 1992

Ovide Mercredi, Charlottetown at Charlottetown, PEI, 1992

Native leaders, like Ovide Mercredi, pictured here at a Charlottetown Accord BBQ, played significant roles in the constitutional debates leading to the Charlottetown Accord.
PARO/PEI (Acc. 4547 S.7 file 39 #11).
This time, Native leaders succeeded in convincing the ministers to include a clause that would recognize the "inherent right" of Native people to self-government. However, in a national referendum in 1992, Canadians rejected the Charlottetown Accord.

Obviously the problem of Aboriginal rights is a difficult one, and the failure of the federal government and Aboriginal leaders to reach agreement on how to deal with land and resource rights in particular has led some groups to pursue settlements through avenues outside the official process. In some cases, the disputes have led to open confrontation, as was the case at Oka, Quebec, in the summer of 1990. In other cases, people resorted to the courts. The Calder case has already been noted. More recently, the Supreme Court has ruled in other important cases that bear on the question of the exact extent of Aboriginal rights and government responsibilities.

Cartoon by Aislin captures the national and international attention paid to the Oka crisis in 1990

"Halt," 1990

Quebec's police force, the Sureté du Québec, attempted to resolve the Oka conflict -- a confrontation between Mohawks and the government over disputed lands. Some Quebecers accused the Sureté du Québec of using excessive force and actually escalating the conflict. Aislin's cartoon captures the national and international attention paid to the Oka crisis and the Sureté du Québec's inability to end the conflict.
Aislin - Montreal.

1990 - Oka Crisis

The Oka crisis was in origin a land claims issue. Mohawk peoples objected to the expansion of a municipal golf course onto sacred Native burial grounds during the summer of 1990. To protest this intrusion, Mohawk warriors from the Kanesatake and Kahnawake reserves blockaded a road that led into the golf course near the small town of Oka (south of Montreal). Tensions escalated when the Mayor called in the Sûreté du Québec (SQ) to remove the blockade. The SQ stormed the barricades on 11 July 1990 but met considerable resistance from the well-armed warriors. One officer was shot dead. The Canadian armed forces were called in and a standoff ensued between government and Mohawk forces. Peaceful negotiations ultimately ended the Oka crisis 78 days after it had begun.

The crisis, although marred by violence, has had positive effects for many Canadian Aboriginal people. It helped to give a national profile to First Nations issues, especially regarding land claims, and, according to at least some members of the community, forced governments to listen to and take seriously Native grievances. Oka became a rallying cry for Native peoples, encouraging them in their struggle with government authorities for Aboriginal rights.

Photo of Mohawks at Oka watching news of Oka crisis

Mohawks Watching Oka Crisis News on Barricades

Benoît Aquin, Library and Archives Canada, 3602895

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1990 - R. v. Sioui

Seemingly, the Indians of each province have had to wage the same court battle to win acknowledgement of rights established by treaty. In Quebec, where no major treaties dealing with the extinguishment of Aboriginal title existed, the problem was exacerbated. In May 1990, four Huron men were charged with cutting trees, camping, and making fires in a Quebec provincial park, actions in violation of provincial regulations. The defendants argued that they were participating in a religious ceremony and were entitled to do so under the Articles of Capitulation, the 1760 agreement by which France had surrendered the territory to England. Under this agreement, England had promised to guarantee the Indian peoples of New France the free exercise of their customs and beliefs.

This defence hinged on two points: were the Articles of Capitulation valid as a treaty document and, if so, did the agreement supersede the Quebec Parks Act? The Supreme Court of Canada agreed with the defendants. In a ruling that constituted an important contribution to the growing legal support of Aboriginal rights, the Articles of Capitulation were recognized as a treaty document. As such, the rights guaranteed in the articles were confirmed until and unless the descendants of those Huron signatories should themselves relinquish them. In addition, the justices declared that treaties and statutes relating to Indians should be liberally construed and, where uncertainties in law existed, should be resolved in a manner that favoured the Indians involved. The decision also implied that Aboriginal rights could not simply be ignored: for such rights to be extinguished, there had to be an explicit statement of that fact. It was not enough, therefore, just to pass the Parks Act and make the implicit assumption that it overrode Aboriginal rights.

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In the Sioui case, four Huron men in Quebec were charged with such violations as camping and cutting trees in a provincial park contrary to park regulations. They argued that they were free to do these things because of a section in the Articles of Capitulation (1760) between the French and the British. In this section, the British promised to permit the Native peoples free exercise of their customs and beliefs. The case worked its way through the courts until the Supreme Court ruled in favour of the men in 1990. The court agreed that the 1760 document constituted a treaty and its provisions were still in effect. The court further ruled that governments must be open-minded in interpreting treaties or other laws relating to Indians, stating that "uncertainties [should be] resolved in favour of the Indians." The implication was that Aboriginal rights cannot be simply ignored, and treaty agreements do not simply dissolve by default.

1990 - R. v. Sparrow

A frequent feature of Aboriginal cases decided in the Supreme Court has been their humble origins. In 1990, a Musqueam man named Sparrow was charged under the federal Fisheries Act with using a drift net larger than that allowed by the fishing license under which his band operated. In 1996, the Supreme Court ruled in Sparrow's favour, asserting that Aboriginal rights to fish could not simply be eliminated by provincal regulations; such rights had to be extinguished explicitly and only for good reason. The court also reiterated the Crown's fiduciary responsibility toward Native peoples, noting that the relationship was supposed to be one of trust. These elements were to govern how Natives were dealt with under the law. The court observed that just because federal legislation had been applied to the Musqueam did not mean that existing Aboriginal rights, such as fishing in particular waters from "time immemorial," had been extinguished. The Sparrow case was the first wherein section 35 of the Constitution affirming "existing aboriginal rights" was applied to the federal and provincial legislative and regulatory powers set out in the British North America Act (1867).

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In another important case, Ronald Sparrow of British Columbia had been charged with using a fishing net longer than that allowed in his band’s fishing licence. He argued that he had an Aboriginal right to fish unimpeded by Canadian regulations, and that Section 35 of the Constitution Act (1982) protected that right. The Supreme Court sent the constitutional question back to trial for technical reasons but ruled that the courts must interpret the phrase "existing aboriginal rights" flexibly. The court also stressed that the federal government was constitutionally obliged to protect Aboriginal peoples through section 91 of the British North America Act and that Aboriginal rights can be extinguished only by clear and explicit legislation. The government could no longer argue that a given right no longer existed simply because laws had been passed to limit hunting seasons or restrict access to fisheries. If a government wanted to do these things, the Sparrow ruling suggested, it must state explicitly that it intended to restrict an Aboriginal right and provide clear reasons for the necessity of doing so.

1991 - Delgamuukw v. British Columbia

The decision of the B.C. Supreme Court in rejecting the land claims of the Gitksan-Wet'suwet'en of northern B.C. stands apart from other recent decisions on Aboriginal rights. The case involved the claim by hereditary chiefs to a 22,000 square mile section of land. They argued that title there had never been extinguished. The Gitksan-Wet'suwet'en asserted their right to govern the territory and demanded damages for the use and loss of resources and land to others. In deciding the case, Chief Justice McEachern overlooked several recent Supreme Court decisions and stirred controversy for the manner in which he chose to render his decision. He affirmed the arguments of St. Catharine's Milling, although they had been overturned in Calder (1973), and stated that Aboriginal title had been extinguished in 1858. He denied jurisdiction to the Gitksan-Wet'suwet'en, pointing out that all governmental powers had been divided between the federal and provincial governments when B.C. entered Confederation in 1871, leaving no area for Native control. The only right they retained was that of fishing, hunting, or trapping over lands for which the Crown as yet had no use. McEachern drew further attention to an already controversial decision by his derogatory attitude toward Natives, expressed in a dismissal of oral history testimony and in the use of language the Supreme Court had described as unacceptable in the Simon case. Although the Gitksan-Wet'suwet'en initially suspended their pursuit of title through the courts, they eventually filed an appeal in the Supreme Court. In 1997, the Supreme Court overturned the B.C. court's decision. (See 1997 entry for the Supreme Court decision.)

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The Delgamuukw case is perhaps the most important of the recent rulings on Aboriginal rights. In 1984, the Gitksan and Wet’suet’en people of British Columbia went to court in order to gain formal recognition of their ownership of some 57,000 square kilometres in the northern part of the province and to confirm that the hereditary chiefs were the legitimate decision-makers in these lands. In 1991, British Columbia Chief Justice Allen McEachern ruled against the Gitksan and Wet’suwet’en on both questions. He argued that the colony of British Columbia had extinguished Aboriginal title and other rights before Confederation. Indeed, he went further and ruled that these groups had been too primitive before contact with Europeans to have had any political institutions or self-government, and so they could not lose the right to something that they never had in the first place. The judgement was highly controversial and the case went to the Supreme Court. Late in 1997, the Supreme Court ordered that the case go back to trial, but in its ruling made a number of extremely important statements about Aboriginal rights and the law. It ruled that the rules of evidence had to be changed to accommodate oral history and tradition. It explicitly defined Aboriginal title as a land right that "includes the right to exclusive use and occupation of the land." And it established a specific set of rules for proving Aboriginal title. And it also ruled that, while governments can infringe on Aboriginal land rights, such interference must be justified by "a compelling and substantial" reason and undertaken with full consultation. Furthermore, such infringement must be consistent with the Crown’s constitutional responsibility to protect Native interests.

The most recent government initiative to deal with the complex issues of Aboriginal rights and serious socio-economic problems of many Aboriginal people in Canada was the establishment of a royal commission by Brian Mulroney’s government in 1991. After a lengthy and expensive process of hearings, research, and reporting, the Commission’s report was released in 1996 by co-chairs René Dussault (a Quebec judge) and Georges Erasmus (a Dene leader from the Northwest Territories). It covered a wide range of topics from residential schools to claims issues. Although the report included numerous recommendations for solutions or means to develop solutions, the long-term impact of the Royal Commission is yet to be seen.

Written By

Kerry Abel
Adjunct Professor
Carleton University
This is a brief description of Kerry Abel


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