“Protection of “hunting grounds” is the foundation of Canadian Aboriginal & Environmental law.” This is part 1 of 4 of Jack Woodward’s keynote presentation at the Canadian Bar Association’s National Aboriginal Law Conference [PDF], on June 11, 2015 at Fortress Louisberg National Historic Site, Nova Scotia.
My dear fellow lawyers in the National Aboriginal Law Section of the Canadian Bar Association. Thank you to the organizers, and sponsors, who made it possible for us to meet here in historic Fortress Louisberg. This great stone monument is famous for being a complete failure.
Despite these stone defenses, the old feudal, undemocratic, colonial regime fell. A few years later the Royal Proclamation of 1763 happened, so 1763 is the beginning of my story tonight.
Fortress Louisberg could not prevent the great transfer of wealth and political power of 1763, when the country we now call Canada was created.
The Royal Proclamation stands for four things: democracy, the rule of law, compensation for veteran soldiers, and protection of the lands and hunting grounds of the aboriginal people.
Tonight I want to talk about the enduring importance of those words “hunting grounds”, and how that old-fashioned-sounding concept leads us straight to section 35 of the Constitution. And after that I will go on to talk about the modern constitutional protection of aboriginal lands, and what that means for the economic and environmental future of Canada.
The Royal Proclamation was a document from the Age of Enlightenment. It was written by a Whig (or Liberal) government in London, the decade before the American Declaration of Independence and almost a generation before the French Revolution. But it laid a foundation. The idea that colonists and aboriginal people would have rights – rights to land, rights to justice, rights to elected assemblies, that was a powerful idea, and it foreshadowed the democratic revolutions that rocked the 18th century world, which until then was strictly about monarchy and feudal institutions. All that happened, despite this impressive fortress where we are having dinner.
Being here in Fortress Louisberg, this failed attempt to resist change, reminds me of our current federal government. On June 26, 2014, 250 years after the Royal Proclamation, the Supreme Court of Canada signaled another great transfer of wealth, power, and political legitimacy, when aboriginal title was declared to Tsilhqhot’in territories, overruling 150 years of resistance by Canada and British Columbia. Tsilhqot’in happened, after decades of stonewalling by Canada, and the Harper government was powerless to stop it, standing by like an obsolete relic of the neo-colonial era, being swept away.
I am ahead of myself. Back to 1763. The new government of Canada was called Quebec, but it included land in what is now other provinces and large parts of what is now the United States. Eventually, the name of this new country was changed to Canada, boundaries were changed, powers were re-distributed. But 1763 is when Canada began, and it began with protection of “hunting grounds”.
Protection of “hunting grounds” is 18th century language for protection of ecosystems, or environmental protection. To have a meaningful hunting ground, there must be animals to hunt. Animals come from habitat. So it is a question for wildlife biology: What is the amount of habitat necessary that a population of animals can thrive and multiply and produce a surplus sufficiently large to support a meaningful hunt?
Canada is huge, but the landscape is delicate. For most of Canada, in 1763, the highest and best long-term sustainable use of the land was as a hunting ground. That may even be true today as well. Push those ecosystems too hard with industrial development, and the ecosystems fail.
From a lawyer’s perspective, if there is a right to “hunting grounds” there will be a question of fact: How much industry and settlement can the land support, without destroying the hunting grounds? The answer to that question requires expert evidence – mainly traditional knowledge and wildlife biologists.
A lawyer begins to visualize trials. Trials about the cumulative effect of industrial development on the hunting grounds. About the impact of industrial development on the customs, practices and traditions related to the hunting grounds. About whether the proposed settlement or industrial development breaks the cultural bond between the people and their hunting grounds.
250 years later, the fourth promise in the Royal Proclamation is still alive, and enforceable, because it has morphed into section 35, and it has become a powerful foundation for the economic advancement of aboriginal peoples, and for protection of the environment.