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Commentary on “Adhesion to Canadian Indian Treaties and the Lubicon Lake Dispute”*

Published online by Cambridge University Press:  18 July 2014

Kent McNeil
Affiliation:
Osgoode Hall Law School, York University

Extract

Thomas Flanagan's article on adhesion to Indian treaties in this issue of the Canadian Journal of Law and Society is a bold foray into a virtually unexplored area of aboriginal rights. Although adhesions to most of the eleven Numbered Treaties in northern and western Canada were common, as Flanagan points out, not much attention has been paid to them. The matter is nonetheless of major importance for many aboriginal peoples, as was demonstrated by the decision of the Supreme Court of Canada last year that the Teme-Augama Anishnabai had surrendered their aboriginal title by adhesion to the 1850 Robinson-Huron Treaty. There can be little doubt that the issue is going to arise more frequently as other aboriginal peoples challenge the application of treaties to their ancestral lands.

Type
Research Article
Copyright
Copyright © Canadian Law and Society Association 1992

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References

1. A.-G. for Ontario v. Bear Island Foundation, (1991) 127 N.R. 147 (S.C.C.).

2. I use the general term “group” instead of nation, tribe, band or other designation in this context to avoid problems of definition which might otherwise occur, and because I do not want to limit the application of my discussion of land claims to a particular kind of collectivity. My use of this term is not an implicit denial of the legitimate claims of aboriginal peoples to nationhood.

3. A “clear and plain” intention to extinguish would have to be proven (Sparrow v. The Queen, [1990] 1 S.C.R. 1075 at 1099), taking into consideration the historical context, the record of negotiations, and the aboriginal understanding of the agreement (A.-G. of Quebec v. Sioui, [1990/ 1 S.C.R. 1025, esp. 1035–36, 1045). One cannot, as Flanagan appears to suggest, rely simply on the surrender clause in the treaty itself: see Re Paulette, (1973) 42 D.L.R. (3d) 8Google Scholar (N.W.T.S.C.) esp. 30–35, reversed on other grounds (1975) 63 D.L.R. (3d) 1 (N.W.T.C. A.), [1977] 2 S.C.R. 628; McNeil, K., “The High Cost of Accepting Benefits from the Crown: A Comment on the Temagami Indian Land Case” [1992] 1 C.N.L.R. 40 at 6268Google Scholar.

4. Treaty No. 8 Made June 21, 1899, and Adhesions, Reports, Etc. (Ottawa: Queen's Printer, 1966) at 12Google Scholar.

5. E.g., see Nowegijick v. The Queen, [1983] 1 S.C.R. 29 at 36; Simon v. The Queen, [1985] 2 S.C.R. 387 at 402; R. v. Horseman, [1990] 1 S.C.R. 901 at 906–07.

6. See Rossignol, M., “Property Concepts among the Cree of the Rocks” (1939) 12 Primitive Man 61CrossRefGoogle Scholar; Brody, H., Maps and Dreams (Harmondsworth: Penguin Books, 1983)Google Scholar.

7. The reports of the treaty commissioners and the record of signatures reveal that the commissioners dealt with different aboriginal groups at different places within the treaty's territorial limits: e.g., see Report of Commissioner for Treaty No. 8 in Treaty No. 8, supra, note 4, at 20, where J. A. Macrae reported taking “adhesions of certain of the Indians of Fort St. John and the whole of those of Fort Resolution on Great Slave lake, whose hunting grounds lie within treaty limits” (my emphasis).

8. [1980] 1 F.C. 518 at 557–58 (F.C.T.D.).

9. See A.-G. for Ontario v. Bear Island Foundation, (1984) 15 D.L.R. (4th) 321 (Ont. S.C.) at 335. In Delgamuukw v. The Queen, [1991] 3 W.W.R. 97 (B.C.S.C.) at 388, McEachern C.J. questioned whether the occupation had to be exclusive.

10. See Order in Council Setting Up Commission for Treaty 8, P.C. No. 2749 in Treaty No. 8, supra, note 4, at 3–4; Fumoleau, R., As Long As This Land Shall Last: A History of Treaty 8 and Treaty 11, 1870–1939 (Toronto: McClelland & Stewart, 1973) at 5860Google Scholar.

11. See de Smith, S. A., Constitutional and Administrative Law, 4th ed. by Street, Harry and Brazier, Rodney (Harmondsworth: Penguin Books, 1981), 7980Google Scholar; E.C.S. Wade and Bradley, A.W., Constitutional and Administrative Law, 10th ed. (London: Longmans, 1985), 6063Google Scholar; Hogg, Peter W., Constitutional Law of Canada, 2d ed. (Toronto: Carswell, 1985) at 284Google Scholar. The Crown can make law only to the extent that authority to do so has been delegated to it by the legislature.

12. R.S.C. 1985, App. II, No. 1. Ironically, the Royal Proclamation is Crown legislation, issued under authority of the rule of British colonial law that the Crown can legislate in conquered and ceded colonies until a representative assembly is promised or created: see Campbell v. Hall (1774) Lofft 655 (K.B.). It was made possible by the cession of New France to Britain in 1763. See generally Slattery, Brian, Land Rights of Indigenous Canadian Peoples (Saskatoon: University of Saskatchewan Native Law Centre, 1979)Google Scholar.

13. See The King v. McMaster, [1926] Ex. C.R. 68 (Can. Ex.) at 72–74; Easterbrook v. The King, [1931] S.C.R. 210 at 214–15, 217–18; R. v. Secretary of State for Foreign and Commonwealth Affairs, [1982] Q.B. 892 (Engl. C.A.) esp. 913; and commentary on A.-G. for Ontario v. Bear Island Foundation, (1989) 68 O.R. (2d) 395 (Ont. C.A.) in McNeil, supra, note 3, at 55–58.

14. R.S.C. 1985, App. II, No. 1 at 6. Although there is uncertainty over the proclamation's territorial extent, the Supreme Court of Canada appears to regard its surrender provisions, at least, as being generally applicable: see Guerin v. The Queen, [1984] 2 S.C.R. 335 at 376–82.

15. For detailed discussion, see McNeil, supra, note 3, esp. 55–61.

16. See Broom, H., Constitutional Law, 2nd ed. by Denman, G. L. (London: Maxwell & Son, 1885), at 225–33Google Scholar.

17. See Guerin v. The Queen, [1984] 2 S.C.R. 335, esp. 382; Sparrow v. The Queen, [1990] 1 S.C.R. 1075 at 1108.

18. [1988] 2 S.C.R. 654 at 677.

19. Contrast Mabo v. Queensland, (1993) 175 C.L.R.l (H.C. Aust.).

20. For detailed discussion of this issue in the context of the 1850 Robinson-Huron Treaty, see McNeil, K., “The Temagami Indian Land Claim: Loosening the Judicial Strait-Jacket” in Bray, M. and Thomson, A., eds, Temagami: A Debate on Wilderness (Toronto: Dundurn Press, 1990), at 185Google Scholar.

21. E.g., see The Western Arctic Claim: The Inuvialuit Final Agreement (Ottawa: Indian and Northern Affairs Canada, 1984)Google Scholar.

22. See generally Goddard, J., Last Stand of the Lubicon Cree (Vancouver: Douglas & McIntyre, 1991)Google Scholar.

23. For discussion of this approach in another context, see McNeil, K., “A Question of Title: Has the Common Law Been Misapplied to Dispossess the Aboriginals?” (1990) 16 Monash L. Rev. 91 esp. at 107–10Google Scholar.