LAW 3600 Foundations of Canadian Law : Aboriginal Rights

In the case of Sparrow v R, was laid out as the first test for Aboriginal rights. This was an important decision by the Supreme Court of Canada, concerning the application of Aboriginal rights under section 35 (1) of the Constitution Act, 1982. The case involved a man with the name of Ronald Edward Sparrow; he was a member of the Musqueam band. He was charged for violating the fisheries regulations by Canadian authority. Sparrow was caught using a net that was much longer than was required by the fishing licencepermitted. In his defence, he said to the court that he was only exercising his Aboriginal right to fish under the protection of section 35 (1) of the Constitution Act, 1982. The trial judge agrees with his assumption that section 35 protected existing treaty rights, but there was no inherent right to fish.The court held that Sparrow was exercising an inherent Aboriginal right that even existed before the provincial legislation and that was guaranteed and protected by section 35 of the Constitution Act, 1982.In a similar situation where the court had battled over fishing rights, is the case of Marshall v R, the appellant was charged for fishing eels during out of season, fishing without a licence and fishing with an illegal net. In his defends he argued that aboriginal right stemming from 18^th-century treaties with the British Crown exempted him from fisheries regulations.The Supreme Court ruled in his favour, making the Mi'kmaq and Maliseet people have the rights to earn amoderate livelihood from commercial fishing and hunting. The ruling, in this case, granted those two tribes the rights to catch lobster even during out of season.

It has been proven that section 91 (24) of the Constitution Act, 1867, was just one of the several landmark court decisions over the year that have defined and shaped Aboriginal rights in Canada. In the court decision in Sparrow, criteria had been set out for determining whether rights can be considered as an “existing” right and whether the government is justified in curtailing such a right. The Sparrow case was Considered as Canadian first Supreme Court test for Aboriginal rights; within the scope of section 35 (1) of the Constitution Act, 1982. The court held in the Sparrow case decision to recognise fishing as an Aboriginal fundamental right that has been enforcing by theCanadian Constitution Act, 1982. The constitution has made it difficult to infringed such right without any justification onaccount of the government’s fiduciary duty to the Aboriginal peoples of Canada. As was held in the case of Geurin v R, a landmark Supreme Court of Canada decision on Aboriginal rights where the Court first stated that the government had a fiduciary duty towards the First Nations of Canada and established Aboriginal title to be a sui generis right. It is said that the Sparrow test has been used several times by experts, as a way to measure how much Canadian legislation can limit Aboriginal right.

An Aboriginal title is also recommended as a right in the land. The court in the Delgamuukw case had included mineral within lands title not to be exploited within the ambit of Aboriginal title. Under the case of Degamuuka, there are test that is needed to be established when making out a claim for aboriginal title, the First Nation asserting title must satisfy the following criteria-

(i) the land must have been occupied prior to European sovereignty (in British Columbia, 1846);

(ii) if thepresent occupation is relied on as proof of occupation pre-sovereignty, then there must be a continuity between present and pre-sovereignty occupation; and

(iii) at sovereignty, that occupation must have been exclusive.

Title Can be Extinguished
1. Crown Must Consult / Accommodate. 2. Must be Compelling / Substantial Objective 3. Consistent with its Fiduciary obligation to theAboriginal body in question. As was held in the Van der Peet test, the Supreme Court of Canada was to identify if aboriginal rights are present. The court realised s35(1) did not create the legal doctrine of aboriginal rights, but rather, that they were pre-existing, and were recognised under the common law.Furthermore, in R v Sappier, and R v Gray, members of the Mi'kmaq and Maliseet were charged with unlawful possession of Crown timber, under s67(1) c, and s67(2) of the Crown Lands and Forest Act. In defence, the respondents in R v Sappier, and R v Gray case, stated that they possessed an aboriginal and treaty rights to harvest timber for their own personal use.

Topic 2: Discuss the differences between constitutional conventions and constitutional principles, and offer some examples. Then identify/ discuss the reasoning in the seminal legal case that clarified one of the concepts and also helped to establish Canada’s, Charter.

The Supreme Court of Canada has recognised two principal sources of unwritten constitutional norms. These two norms are Constitutional Convention and Unwritten Principles Constitution. Although these two principles share several qualities together, they also differ in many aspects. They share adifferent purpose in their legal status. They are both also differ on how they are derived or recognised.

Convention Constitution

The convention principle deal with the relationships between State institutions of governing. They have little to say about the limits on State power. Convention does not have the force of law, and it cannot be enforced by the courts in Canada. They acquire and retain their binding force by agreement, and they are ultimately in the realm of Politic. One of the most influence statement in relation to the nature of the convention in Canada’s constitutional framework is to amend the constitution was the case of Patriation Reference. The case was decided in the midst of the Canadian Constitutional crisis. Before  the agreement was finalised, the federal government at that time, Prime Minister Trudeau, decided in 1980 to pursue amendment and patriation of the constitution on the basis of having an agreement with two of the province, which was Ontario and New Brunswick. The other eight provinces took the matter to court.

Their argument in court was that the federal action breached a convention of the constitution. In that assertion, the majority of six-justice in the Supreme Court of Canada agreed for the same. The Court affirmed the existence of an unwritten dimension to the Constitution and the majority held that by constitutional convention, amendments to the Constitution requires a substantial degree of provincial consent.  As a result, of their agreement, they put in place the three Convention Factors. The first factor is  practice or agreement developed by political actors. The second factor is  recognition of political actors they are bound to follow the convention. The third factor is the existence of Normative reason and the purpose of the convention. It is stated that a unilateral patriation would be unconstitutional in a conventional sense. They get their binding force by agreement. They are precedents of politics and not the law. They are political in nature and not the realm of the court.

Principle Convention

In the Reference re Succession of Quebec, the Supreme Court of Canada had adopted a new understanding of the unwritten principle of the constitution. The constitution includes a number of unwritten principles that are fundamental to its operation by setting out four unwritten principles. These principles are as stated below:

• Federalism- is the principle to seeks and to reconcile diversity with unity. The purpose of Canada’s federalism is not only to create a loose association amongst provinces but a true national unity.
• Democracy- this principle seeks to promote participation in effective representation self-government, that will respect all voices and ideas.
• Constitutionalism and the rule of law- All government action must comply with the law. The exercise of government Authority always reviewable by the courts to ensure consistency with the Statutory power.

The protection of minority rights- In accordance with the specified provisions of constitution regarding  the protection of minorities assures that company does not maneuver  generally on  majority rule and permits a true democracy  so that opinion of minorrity can be considered in fair manner. In contradictory to this the unwritten convention is not binding, as it is suported by the unwritten principles of the Constitution while the Supreme Court claim to be legally binding. In the decision of Re Succession of Quebec, the court describes the unwritten principle of the Constitution as having the force of law and imposing substantive limits on the power of government. The idea that the Supreme Court of Canada had said that the constitution has both written and unwritten component. In the case of Reference Re Resolution to amend the Constitution, also known as the Patriation Reference. This historic Supreme Court case occurred for the patriation of the Constitution of Canada. This was the case which helps to establish Canada’s Charter, under the leader of the Prime Minister Pierre Elliot Trudeau. The purpose was for Canada to have its own constitution, with a procedure for making future amendments to it, in addition, his government wanted a Charter right. However out of the ten provinces, only Ontario and New Brunswick supported his plan. In the court, judgement parliament would not amend the constitution without having a substantive support from all the provinces.

Topic 3: Explain the Doctrine of the ‘Reception of Laws’ and its implications for the formation of Canada’s legal system. Ensure to mention history and problems that persist today as a result

In order to make sense of the doctrine of the ‘Reception of law’, one must study William Blackstone. However, ‘Reception of law’ must first be defined. It is the adoption of a system of law that has been formulated in another state or in a previous historical era by adapting it to the conditions of a particular country.  The William Blackstone, he is well known for his writing of the commentaries on the laws of England. He believes colonial laws were to apply in the new world. In William Blackstone commentaries, there is some form of laws that can be imported to govern a new colony, and that is the English common law system. The laws force depended on whether colonies were simply settled, whether they are conquest or ceded by the indigenous people. A very well-known case that has set out some of the basic principles surrounding the rules of the reception is the Cooper v Stuart case. Even though this an equivalent of Australia Terra Nullius concept.

If a colony is a conquest or cession, a pre-existing law of the indigenous sovereignty must be remained in force, or as such to be modified, or replaced by the crown or parliament as necessary to operate thegovernment. The warning for English common law is to have little or no authority. There is this requirement for a legal vacuum that must be filled by the British statute and common law. In the appeal case of Cooper v Stuart, a judgment from the Lord of the judicial committee of the Privy Council, as noted as it is generally  far as it is reasonably pertinent to the circumstances of the colony, the law of England must succeed, unless the same is modified or reconstructed either by statue or law.  It also required that the law of England must become from the outset, as the law of the colony, and the exceptions must be well established. In Canada,

 it is well known for the dates of reception of some province not to be clearly marked because there was no obvious source for the administration of a province or colony.  The date for thereception was less important as noted. The Common Law, as Blackstone as noted, to be a universal, uniform set of principles and precepts. The common law did not consist of any written laws as it is today. It was a simple set of collection by the court decision; they were not always written down.

The History of Canada

The early history of Canada is that it was a colony, known at the time as Acadia. What really brought the European settle was not for fishing, but mainly for the purpose of hunting for beaver fur. Both the French and the British had expeditions to explored the colony and to colonize it. This two super-power fought for control in the colony and in 1534 New France was established. There was later a seven-year war between the two super-power. However, in 1763 French ceded defeat to the United Kingdom. The European never admitted the maritime conquered, but they claim to be settlers. As Peter Hogg noted, the reception of English law into those three maritime provinces has often been explained by the patently false belief that they were settled colonies. In the Durham report in 1839, there was the quest for a responsible government and there was an attempt to end conflict within the colonies. In 1839 a bill was introduced into the British Parliament and by 1841, the two colonies were united into a single nation like Canada. They agreed to have one legislature and to have equal representation from the Upper and Lower Canada. Canada first Constitution Act was enacted on March 29, 1867. In 1931, the Statute of Westminster, removed British power so Canada can make laws for itself. This legislation gave Canada more independence to be a sovereignty State to act on its own affair.

In Canadian today’s society

In  1982,  The Constitution Act was estabilished and  British power ended. The Constitution in 1982 provides a formula for amending the constitution and to entrench charter. Furthermore, in 1974, the Trudeau government took on the desire to patriate the constitution, and in 1976 the Quebec Succession movement began. This was a political and an ideological movement for Quebec, who wanted to be separate State from Canada. A bijuralism remains largely intact today in Canada.

Part 2:

Canad has been describing as a Parliamentary Sovereignty. Critically discuss this statement, in the light of the Concept of the rule of law, the enactment of Canada’s 1982 Charter, and the role of the courts in this process.

Canada operates on two fundament principles documents, the Constitution Act 1867, known as the British North American Act and the Constitution Act 1982, also known as the Charter. In section 52 of this Charter, it makes it clear that the Constitution is the Supreme law of Canada. In Reference re Succession of Quebec, Canada had adopted a number of unwritten principles that are fundamental with ordinary Canadian. Under these unwritten principles, Canada is a federalist society and governed by a democratic process. Canada system is very much based on the English, and French system. The English monarch currently plays roles in Canadian Constitution Act 1867 and its parliamentary process. In sec 10 of the Constitution Act 1867, provisions have been specified to allow the Crown to empower and appoint Governing- General to exercise all power and authority vested by the current Queen Elisabeth II.

The court is in a position to keep government authority in checks if they are inconsistent with the statutory power. For example, in Roncarelli v Duplessis, Mr Duplessis was in possession of government authority. He had ordered that Mr Roncarelli’s – a private citizen, and a Jehovah witness – liquor licence to be revoked. The matter went to trial, and the court found the discretion must always be exercised in accordance with the statutory purpose and of good faith. In Canada, the governing system is divided into three separate branches. Just a few decades back there was no ground of separation of power, with the only document being enacted, was the Constitution Act 1867. In Canada, whenever an election is over, the Governor-General would ask the party leader to form a government. After government is formed, the Governor General will exercise its power in accordance with the wishes of the leadership. The advising cabinet is where power really lies; it is the cabinet which controls the government. In sec 9-16  specifies the provision relating to  the estabilishment of executive power. The executive power lies in the Queen, and so-calledassociate, the governor-general and the Privy Council. The Constitution Act, 1867 recognizes and categorizes separate constitutional status along wiht specific section 17 and 52 for the legislature and judiciary sections 96 and 106 which explains the relating power as well as limits.

Parliament is endowed with constitutional power to endorse all federal laws and for organization of  federal courts. In accordance wiht section 38 parliament is examined  by the authorities of  the executive to describe the House of Commons  and by the power of the judiciary to declare laws enacted unconstitutionally. Parliament is also  answerable for assissing the power available with the executive, for reserve Bills conceded by the Houses of Parliament and to prohibit laws enacted (secs. 55-7).The Judicial branch is having  constitutional authority to endeavor all cases, to construe the laws present in  those cases and to announce any law . The judiciary is examined  by authority in the executive for  assigning its members; by power in the legislature to endorse revisions that overturn judicial decisions, it comprises various constitutional decisions (Charter of Rights, s. 33); He is also authorized to remove judges wiht  the combined power of the executive and legislative branches.