Union of B.C. Indian Chiefs Newsletter – Indian Health Issue (May 1990) · UBCIC Periodicals

Union of B.C. Indian Chiefs Newsletter – Indian Health Issue (May 1990)

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Union of B.C. Indian Chiefs Newsletter – Indian Health Issue (May 1990)

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1.06-01.08 Union of BC Indian Chiefs Newsletter

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May 1990

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UNION OF B.C. INDIAN CHIEFS
NEWSLETTER

#200 - 73 WATER STREET
VANCOUVER, BC V6B 1Al
Tel: (604) 684-0231
FAX: (604) 684-5726

May 1990

PRESIDENT’S MESSAGE:
Indian Health Issue

There are many political manipulations being played out in this
country around the extinguishment of Aboriginal Title, Rights ,
and Treaties as we begin the 1990’s. This is not new, of course,
but it means Indian Governments have to organize themselves to
maintain the right to self-determination by whatever means
necessary. The route to Indian self-government has had to shift
gears from time to time but we have never given up our position
on the Land Question.

The Chiefs at the UBCIC 21st Annual General Assembly decided that
the time had come to protect our Nations Aboriginal Title and
Rights through a non-extinguishment treaty-making process.
Something concrete had to be done to fight the Mulroney
government’s on-going campaign to diminish the trust relationship
with Indian people. So, the Chiefs directed the Union to help
them develop non-extinguishment treaty-making as its focus for
future work.

A discussion paper titled The Aboriginal Right to Health, Treaty-
Making And Indian Government Jurisdiction (copy attached) was
presented to UBCIC Chiefs’ Council on April 30, 1990. This
paper was developed to support the Union’s position that Canada
has a trust obligation to the Indian Nations and that the Chiefs
will not allow this trust to be diminished or broken. The UBCIC
Chiefs’ Council firmly believes that the trust obligations of
Canada go back even before treaties were signed and that Canada
began abusing its obligations as soon as the ink was dry.

Trust is the highest form of obligation between two parties.
Today, Canada is continuing to try to distract Indian peoples
from this vision. The Chiefs are concerned that policies like
the Indian Health Transfer program have no safeguards, such as
guaranteed financial resources and that Indian Bands will have
difficulty carrying forward such devolution programs into the
future. Most importantly, if Indian Bands accept these programs
on the government’s terms only, the trust relationship will be
diminished and our rights will be undermined.

Therefore it is time to reflect and then plan our health programs
more seriously and carefully. The devolution process initiated
by the federal government has separated Indian Governments and
Indian Philosophy from our peoples’ holistic health needs.
This month’s newsletter provides a full copy of the UBCIC
discussion paper for your information and deliberation.

* * *

SPARROW CASE:
By Nancy Sandy, In-House Counsel, UBCIC
SPARROW V. HER MAJESTY THE QUEEN

The Supreme Court of Canada handed down its decision in the
Sparrow case on May 31, 1990. Mr. Sparrow (the appellant and a
member of the Musqueam Band) had been charged with fishing with a
drift net longer than permitted by the terms of the Band’s Indian
food fishing license. The issue was whether Parliament’s power
to regulate fishing is now limited by s.35 (1) of the
Constitution Act, 1982 and whether the net length restriction in
the license is inconsistent with s.35 (1).

The decision required an analysis of

1) The meaning of the "existing" aboriginal rights and the
content and scope of the Musqueam right to fish; and

2) The meaning of the “recognized and affirmed", and the impact
of s.35 (1) on the regulatory power of parliament.

The court held that the word "existing" makes it clear that
the rights to which s.35 (1) applies are those that were in
existence when the Constitution Act, 1982 came into effect.
Further, an existing aboriginal right cannot be read so as to
incorporate the specific manner in which it was regulated before
1982. More importantly, the phrase "existing aboriginal rights"
must be interpreted flexibly so as to permit their evolution over
time.

There was no dispute that there is an aboriginal right to

fish, however, the Crown argued that the Musqueam Band’s
aboriginal right to fish had been extinguished by regulations
under the Fisheries Act. The extinguishment, the Crown argued,

need not be express, but may take place where the sovereign
authority is exercised in a manner "necessarily inconsistent"
with the continued enjoyment of aboriginal rights. Consent was
not required, extinguishment could be effected not only by
statute but by valid regulations, and in this case the Fisheries
Act and its regulations were intended to constitute a complete
Code inconsistent with the continued existence of an aboriginal
right.

The court disagreed and said that the Crown’s arguments
confused regulation with extinguishment and, although the right
is controlled in great detail by the regulations, this didn’t
mean that the right was extinguished. The court held that the
test of extinguishment must be that the Sovereigns intention must
be clear and plain if it is to extinguish an aboriginal right.
In addition, there is nothing in the Fisheries Act or its
regulations that indicate a clear and plain intention to

extinguish the Indian aboriginal right to fish. Thus the Crown
failed to discharge its burden of proving extinguishment.

The appellant had argued that scope of the aboriginal right
extended to commercial fishing. However, the court said that
historical government policy is not only incapable of
extinguishing the existing aboriginal right without clear
intention, but is also incapable of, in itself, delineating that
right. As well, the nature of governments regulations could not
determine the content and scope of an existing aboriginal right.
But, government policy can regulate the exercise of that right,
and such regulation must be in keeping with s.35 (1).

Since the case in the lower courts was not presented on the
basis that the right extended to the right to fish for commercial
or livelihood purposes the court agreed with the Court of Appeal
that the right included not only the right to fish for
subsistence, but also the right to fish for social and ceremonial
activities, The focus then was still on the validity of a net
length restriction affecting the appellant’s food fishing license
and this meant an analysis of the meaning of "recognized and
affirmed" and the impact of s.35 (1) on the regulatory power of
Parliament.

The appellant had argued that any continuing governmental
power of regulation would have to be exceptional and strictly
limited to regulation that is clearly not inconsistent with the
protective and remedial purposes of s.35 (1). The onus of
proving a justification for restrictive regulations would be with
the government.

The court in response reviewed the background of s.35 and
concluded that s.35 (1) represented the culmination of a long and
difficult struggle in both the political forum and the courts for

the constitutional recognition of aboriginal rights. In effect,
s.35 (1) provided a solid constitutional base upon which
subsequent [land claims] negotiation could take place. It also

provided constitutional protection against provincial legislative
power and clarified issues regarding the enforcement of treaty
rights.

In interpreting s.35 (1) the court looked at general
principles of constitutional interpretation, principles relating
to aboriginal rights and the purpose of s.35 (1). Applying
these principles the court said that it is clear that a generous,
liberal interpretation of s.35 (1) was demanded. In effect, the
Government has the responsibility to act in a fiduciary capacity
with respect to aboriginal peoples. The relationship between
the Government and aboriginals is trust-like, rather than
adversarial, and contemporary recognition and affirmation of
aboriginal rights must be defined in light of this historic
relationship.

The court held that the protection afforded s.35 (1) did not
mean any law or regulation affecting aboriginal rights would
automatically be of no force or effect by operation of s.52 of

the Constitution Act, 1982. For instance, legislation that
affected aboriginal rights could still be effective if the
interference could be justified. The power of the federal

government to legislate against an aboriginal right must be read
together with s.35 to determine whether the infringement is

justified. Regulation must be enacted according to a valid
objective and this gives a measure of control over government
conduct and a strong check of legislative power. This means

that the government bears the burden of justifying any
legislation that has some negative effect on any aboriginal right
protected under s.35 (1)

In setting out the test for interference with an existing
aboriginal right and for the justification of such an
interference the first question to be asked is whether the
legislation in question has the effect of interfering with an
existing aboriginal right. Furthermore, the court must keep in
mind that fishing rights are not traditional property rights but
are rights held by a collective and are in keeping with the
culture and existence of that group when considering the
following

1) is the limitation unreasonable?
2) does the regulation pose undue hardship?

3) does the regulation deny the holders of the right their
preferred means of exercising that right?

Here, the onus of providing an infringement lies with the
individual or group challenging the legislation.

If there is interference, then is there a valid legislative
objective? Here the court objected the Court of Appeal’s
decision that regulations could be valid if reasonably justified
as "necessary for the proper management and conservation of the
resource or in the public interest" and said

We find the "public interest" justification to be so
vague as to provide no meaningful guidance and so broad
as to be unworkable as a test for the justification of
a limitation on constitutional rights.

If there is a valid legislative objective, then is the
legislation justified? Here, the court held that it must be
guided by the special trust relationship and the responsibility
of the governments vis-a-vis aboriginals in determining whether
the legislation can be justified. The court held that government
policy with respect to the British Columbia fishery already
dictated that, in allocating the right to take fish, Indian food

fishing is to be given priority over the interests of other user
grovps. Regulations must reflect that priority.

The objective of this requirement was not to undermine
Parliament’s ability and responsibility with respect to creating
and administering overall conversation and management plans

regarding the salmon fishery. Rather, the objective is to
guarantee that those plans treat aboriginal peoples in a way
ensuring that their rights are taken seriously. The Court

concluded by saying that recognition and affixrmation requires
sensitivity to and respect for the rights of aboriginal peoples
on behalf of the government, courts and indeed all Canadians.

Applying the above test to the case the appellant must show
that the net length restriction constituted an infringement of
the collective aboriginal right to fish for food. If there was
an infringement, then the onus shifts to the Crown to demonstrate
that the regulation is justified by showing that there is no
unconstitutional objective such as shifting more of the fish to a
user groups that ranks below the Musqueam and that the regulation
is required to accomplish the limitation on the aboriginal right.

The court ordered that the case go back to trial for a
determination based on the principles outlined above.

NOTE:

The Sparrow Case will be covered in more detail in the June
Newsletter.

UBCIC 22nd ANNUAL GENERAL ASSEMBLY:

The UBCIC 22nd Annual General Assembly will be held in Vancouver
on October 23, 24, 25, 1990. Please keep note of this date and
more information will follow. If you have any agenda items,
resolutions please contact our office.

STEIN VALLEY FESTIVAL:

The Stein Festival is being held in Mt. Currie again this year.
The dates are August 4, 5, 6, 1990. Featuring Gordon Lightfoot,
Skywalk, Bill Henderson, Lytton and Mt. Currie Traditional
Drummers, etc. Tickets: 3 day early bird - $35.00 WHILE THEY
LAST through Ticketmaster. For more information call 669-3697
or 669-5697.

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