Rights, Courts and Self-Government: Bill C-31, Nunavut and Modern Treaties

Changing the rules through courts, laws and treaties

In the last lesson, land disputes led to barricades. But much of the change in Indigenous rights since 1982 happened somewhere quieter: in courtrooms, in Parliament and at negotiating tables. Some of these negotiations took decades. Their results have changed the map of Canada, including creating a whole new territory.

In this lesson you will see how First Nations, Inuit and Métis people used the law, starting with section 35, to win recognition of their rights.

Bill C-31 (1985): ending one injustice, creating others

Under the old Indian Act, a First Nations woman who married a man without status lost her own status, and so did her children. She could lose the right to live on her reserve, own property there or be buried there. A non-Indigenous woman who married a status man gained status. Men never lost status by marriage.

First Nations women fought this for years:

• Jeannette Corbiere Lavell (Anishinaabe, Wikwemikong) took her case to the Supreme Court and lost in 1973.
• Mary Two-Axe Earley (Kanien'kehá:ka, Kahnawà:ke) campaigned for decades.
• Sandra Lovelace (Wolastoqey, Tobique First Nation) took her case to the United Nations Human Rights Committee, which ruled in 1981 that Canada had violated her rights.

With the Charter's equality rights (section 15) about to take effect in April 1985, Parliament passed Bill C-31 in 1985. It ended loss of status by marriage, let many people who had lost status regain it, and let bands control their own membership if they wished.

But the new rules still treated the grandchildren of women who had married out differently from the grandchildren of men who had. Sharon McIvor challenged this; the British Columbia Court of Appeal agreed in 2009, leading to Bill C-3 (2011). Another case led to Bill S-3 (2017). The fight over status rules shows continuity: discrimination can survive even after a law is reformed.

The Supreme Court defines section 35

Section 35 said "existing Aboriginal and treaty rights are hereby recognized and affirmed" but did not list them. The Supreme Court filled in the meaning case by case. Each decision became a precedent.

• ***R. v. Sparrow* (1990): Ronald Sparrow of the Musqueam Nation was charged for fishing with a net longer than allowed. The Court said Musqueam had an existing right to fish for food and ceremonies, and governments can limit section 35 rights only with strong justification**, such as conservation.
• ***Delgamuukw v. British Columbia* (1997): brought by Gitxsan and Wet'suwet'en hereditary chiefs. The Court said oral histories must be accepted as evidence, and explained what Aboriginal title** means.
• ***R. v. Marshall* (1999): Donald Marshall Jr., a Mi'kmaw man, was charged for fishing eels. The Court said the Peace and Friendship Treaties of 1760–61** protect a right to fish to earn a "moderate livelihood."
• ***Haida Nation v. British Columbia* (2004): governments have a duty to consult** Indigenous peoples before decisions that could affect their rights, even before a claim is proven.
• ***Tsilhqot'in Nation v. British Columbia* (2014): for the first time, the Court declared Aboriginal title** to a specific area of land, about 1 700 km² in central British Columbia.

Métis rights

Section 35 names the Métis as one of Canada's Aboriginal peoples, but governments long denied that Métis had rights.

• In 1993, Steve and Roddy Powley, father and son, shot a moose near Sault Ste. Marie, Ontario, and were charged with hunting without a licence. In ***R. v. Powley* (2003), the Supreme Court ruled that the Métis community of Sault Ste. Marie had a constitutional right to hunt for food. It set out the Powley test** for identifying Métis rights.
• In ***Manitoba Metis Federation v. Canada* (2013), the Court found that the federal government had not honourably fulfilled its promise of land to Métis children in the Manitoba Act, 1870**.
• In ***Daniels v. Canada* (2016), the Court agreed with an earlier 2013 ruling by Justice Michael Phelan that Métis and non-status Indians are "Indians" under section 91(24) of the Constitution Act, 1867. That means the federal** government is responsible for its relationship with them and cannot ignore them by saying they are a provincial matter.

Métis governments, such as the Métis Nation of Ontario (formed in 1993), have since signed agreements with the federal government recognizing Métis self-government.

A new territory: Nunavut (1999)

Inuit organizations negotiated for almost 20 years for a land claim and a territory of their own. The Nunavut Land Claims Agreement was signed in 1993, and on April 1, 1999, the Northwest Territories was divided and Nunavut ("our land" in Inuktitut) was created.

• Inuit make up a large majority of Nunavut's population, so its public government is largely led by Inuit.
• Inuktitut and Inuinnaqtun are official languages along with English and French.
• The land claim gave Inuit ownership of about 350 000 km² of land and a share of resource revenues.

Nunavut was a major development in the relationship between Inuit and the federal government, and an example of how a political map can change through negotiation rather than conflict.

Modern treaties and self-government: the Nisga'a

The Nisga'a Nation of northwestern British Columbia had pursued its land claim since the 1880s. The Calder case (1973), in which the Supreme Court first recognized that Aboriginal title exists in Canadian law, began with them. The Nisga'a Final Agreement was reached in 1998 and took effect on May 11, 2000. It was the first modern treaty in British Columbia. It:

• recognized Nisga'a ownership of about 2 000 km² of land in the Nass Valley;
• created the Nisga'a Lisims Government, with power to make laws on matters such as culture, language, lands and citizenship;
• replaced the Indian Act for the Nisga'a.

Some critics at the time argued that self-government created a separate order of government not found in the Constitution. Courts upheld the treaty. Many other modern treaties followed, such as the Tłı̨chǫ Agreement (Northwest Territories, 2005).