A-384-94
Robert Watt (Appellant)
v.
E. Liebelt and the Minister of Citizenship and Immigration (Respondents)
Indexed as: Wattv. Liebelt (C.A.)
Court of Appeal, Strayer, Décary and Linden JJ.A." Vancouver, November 16, 17, 18; Ottawa, December 30, 1998.
Constitutional law — Aboriginal and Treaty Rights — Whether Immigration Act departure order against Aboriginal foreign national contrary to existing Aboriginal right as guaranteed by Constitution Act, 1982, s. 35 — Appellant claiming right as one of —Aboriginal peoples of Canada— to enter, remain in Canada for spiritual, political, economic, social purposes — Adjudicator unduly limiting jurisdiction to deal with constitutional issue — Motions Judge wrong in finding appellant's Aboriginal right extinguished by Immigration Act, ss. 4, 5 — No clear governmental intention to extinguish right in question — Sovereign nature of Canada not legal barrier to existence of Aboriginal rights — Infringement of Aboriginal rights justified if in furtherance of legislative objective, consistent with special fiduciary relationship between Crown, Aboriginal peoples.
Citizenship and Immigration — Exclusion and removal — Inadmissible persons — Appellant foreign national, neither Canadian citizen nor registered as Indian under Indian Act — Convicted in British Columbia of cultivating cannabis — Ordered to depart from Canada — Whether departure notice infringing appellant's Aboriginal right — Right not extinguished by Immigration Act, ss. 4, 5 — Adjudicator having jurisdiction under Act to deal with matter, to refuse to issue removal order if Aboriginal right infringed — Matter referred back to Adjudicator for determination of questions of fact, law.
This was an appeal from a Trial Division decision dealing with a question as to whether the issuance of a departure order against the appellant would be contrary to an existing Aboriginal right of an Aboriginal people of Canada, as guaranteed by section 35 of the Constitution Act, 1982. The appellant is an American citizen who does not have Canadian citizenship and is not registered as an Indian under the Indian Act. In 1991, he was convicted in British Columbia under section 6 of the Narcotic Control Act for cultivating cannabis. As a result of that conviction, the Adjudicator held that she had no jurisdiction to determine whether the appellant was "an Aboriginal person of Canada", but found that he was subject to removal from Canada because of his conviction. On an application for judicial review of that decision in the Trial Division, the Motions Judge dismissed the application on the basis that the Aboriginal rights guaranteed by section 35 of the Constitution Act, 1982 have been extinguished by sections 4 and 5 of the Immigration Act. Because the Motions Judge felt that this issue has been the subject of considerable public interest and had raised a serious question of general importance, she certified two questions to be answered by the Federal Court of Appeal. The Court addressed the following issues: (1) can the certified questions be answered? (2) was the Motions Judge correct in finding that the right to remain in Canada, if such once existed, had been extinguished? (3) if not, can this Court answer question 1 as to the right to remain in Canada? (4) if not, can the matter be referred back to the Adjudicator for determination?
Held, the appeal should be allowed in part.
(1) Question 1 asked whether an Aboriginal person, who is a member of a tribe whose traditional territory straddles the Canada-U.S.A. border, and who is neither a Canadian citizen nor a person registered under the Indian Act, has a right to come into or remain in Canada. The only issue before the Adjudicator, and before the Motions Judge, was whether the appellant had some right to remain in Canada which the Adjudicator could not remove. This Court will not, in answering questions certified under subsection 83(1) of the Immigration Act, decide matters which cannot affect the outcome of the judicial review. Therefore, question 1 could be considered only as it related to the appellant's alleged right to remain in Canada. The second question, which asked whether the Adjudicator misinterpreted or unduly limited her jurisdiction to deal with the constitutional issue, was within the ambit of the issues properly before the Motions Judge and could be answered by the Court. That question should be answered in the affirmative.
(2) It was not open to the Motions Judge to determine as a matter of law that the Aboriginal right asserted by the appellant had been extinguished by sections 4 and 5 of the Immigration Act. The Supreme Court of Canada has narrowed the concept of extinguishment of Aboriginal rights. Parliament must have demonstrated a clear and plain intention to extinguish the right in question, which means that it must have been able to identify the right and to determine whether it should be extinguished. The mere fact that the relevant sovereign power did not recognize the existence of such a right is not enough to negate its existence. It is not possible to assume that, regardless of how an Aboriginal right may be defined or established by evidence, it may be taken as extinguished by virtue of a law inconsistent with that right. The Motions Judge erred in finding that the right claimed by the appellant had been extinguished. There was neither adequate evidence of the existence and definition of the right nor of a governmental intention to extinguish it.
(3) It may be true that the existence of a sovereign state is inconsistent with any fetters on the power of that state to control which non-citizens may remain in the country. However, a sovereign state may fetter itself as to the means by which, the circumstances in which, and the agencies of government by which, such power of control may be exercised. Canada has by its Constitution limited the exercise of governmental powers which may be inherent as a sovereign state. The sovereign nature of Canada is not a legal barrier to the existence of the Aboriginal rights as claimed, but the Court could go no farther in answering question 1. This question could not be answered with respect to the rights of an Aboriginal person to enter Canada. With respect to his right to remain, it could not be answered in the absence of any determination on the evidence with respect to such matters as: whether such person belongs to an Aboriginal people of Canada; the precise definition of the right claimed; the existence of an historic practice upon which the right is allegedly based; the relationship of that practice to the culture of an Aboriginal people of Canada; the intention of the Parliament and Government of Canada to extinguish that right; whether such right, if established and not extinguished, had been infringed; and whether such infringement, if it exists, is justified. Infringements can be justified if they are in furtherance of a legislative objective that is compelling and substantial, and are consistent with the special fiduciary relationship between the Crown and Aboriginal peoples. These are all matters requiring findings of fact and arguments of law in relation thereto.
(4) The Adjudicator did have the necessary powers, under section 80.1 of the Immigration Act, to dispose of the appellant's assertion of an Aboriginal right entitling him to remain in Canada. An adjudicator has jurisdiction to determine all questions of law and fact, to subpeona persons and things, and to examine under oath. The power to decide questions of law gives him both the duty and the obligation to determine constitutional questions which come before him. As for remedy, the Adjudicator cannot make a declaration of invalidity of a provision of the Immigration Act but he can treat any provision of the Act as inapplicable to an individual, and thus refuse to make a removal order against him if that would constitute an unconstitutional infringement of his Aboriginal right.
statutes and regulations judicially considered
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 15.
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 35.
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.3 (as enacted by S.C. 1990, c. 8, s. 5).
Federal Court Rules, 1998, SOR/98-106, rr. 300(e), 316.
Immigration Act, R.S.C., 1985, c. I-2, ss. 4(1),(2) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 3), (3), 5, 19(2)(a) (as am. by S.C. 1992, c. 49, s. 11), 27 (as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 4; S.C. 1992, c. 49, s. 16; 1995, c. 15, s. 5), 32 (as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 5; (4th Supp.), c. 28, s. 11; S.C. 1992, c. 49, s. 21), 80.1 (as enacted by S.C. 1992, c. 49, s. 70), 83(1) (as am. idem, s. 73).
Indian Act, R.S.C., 1985, c. I-5.
Narcotic Control Act, R.S.C., 1985, c. N-1, s. 6.
cases judicially considered
applied:
R. v. Gladstone, [1996] 2 S.C.R. 723; (1996), 137 D.L.R. (4th) 648; [1996] 9 W.W.R. 149; 79 B.C.A.C. 161; 23 B.C.L.R. (3d) 155; 109 C.C.C. (3d) 193; [1996] 4 C.N.L.R. 65; 50 C.R. (4th) 111; 200 N.R. 189; 129 W.A.C. 161.
referred to:
Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.); Malouf v. Canada (Minister of Citizenship and Immigration) (1995), 190 N.R. 230 (F.C.A.); Singh v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 127; (1998), 224 N.R. 227 (C.A.); McLeod v. Canada (Minister of Citizenship and Immigration), [1999] 1 F.C. 257 (C.A.); Gregory v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 606 (T.D.) (QL); R. v. Sparrow, [1990] 1 S.C.R. 1075; (1990), 70 D.L.R. (4th) 385; [1990] 4 W.W.R. 410; 46 B.C.L.R. (2d) 1; 56 C.C.C. (3d) 263; [1990] 3 C.N.L.R. 160; 111 N.R. 241; R. v. Van der Peet, [1996] 2 S.C.R. 507; (1996), 80 B.C.A.C. 81; 200 N.R. 1; 130 W.A.C. 81; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; (1997), 153 D.L.R. (4th) 193; 99 B.C.A.C. 161; 220 N.R. 161; 162 W.A.C. 161; R. v. Côté, [1996] 3 S.C.R. 139; (1996), 138 D.L.R. (4th) 385; 110 C.C.C. (3d) 122; [1996] 4 C.N.L.R. 26; 202 N.R. 161; R. v. Adams, [1996] 3 S.C.R. 101; (1996), 138 D.L.R. (4th) 657; 110 C.C.C. (3d) 97; [1996] 4 C.N.L.R. 1; 202 N.R. 89; Mitchell v. M.N.R., [1999] 1 F.C. 375 (C.A.); Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; (1991), 81 D.L.R. (4th) 358; 91 CLLC 14,023; 126 N.R. 1; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; (1991), 81 D.L.R. (4th) 121; 91 CLLC 14,024; 122 N.R. 361; [1991] OLRB Rep 790.
APPEAL from a Trial Division decision ([1995] 1 C.N.L.R. 230; (1994), 82 F.T.R. 57) dismissing an application to set aside an Adjudicator's decision ordering the appellant, an American Indian, to depart from Canada after being convicted of an offence and certifying two questions for consideration by the Federal Court of Appeal. Appeal allowed in part.
appearances:
Zool K. B. Suleman for appellant.
Leigh Taylor and P. Scott Cowan for respondents.
Peter R. Grant and Anjali Choksi for intervener Ktunaxa Nation.
Stuart A. Rush, Q.C., and Stan Guenther for interveners Colville Tribes, Okanagan Nation, Upper Nicola Indian Band.
solicitors of record:
Larson, Suleman, Sohn, Boulton, Vancouver, for appellant.
Deputy Attorney General of Canada for respondents.
Hutchins, Soroka & Grant, Vancouver, for intervener Ktunaxa Nation.
Rush Crane Guenther, Vancouver, for interveners Colville Tribes, Okanagan Nation, Upper Nicola Indian Band.
The following are the reasons for judgment rendered in English by
Strayer J.A.:
Introduction
This case involves the question of whether it could be contrary to an existing Aboriginal right of an Aboriginal people of Canada, as guaranteed in the Constitution, for an Aboriginal person who is a foreign national, and neither a Canadian citizen nor registered under the Indian Act1 of Canada, to be ordered to depart from Canada for a crime committed here. It also involves the possible jurisdiction of an adjudicator acting under sections 27 [as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 4; S.C. 1992, c. 49, s. 16; 1995, c. 15, s. 5] and 32 [as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 5; (4th Supp.), c. 28, s. 11; S.C. 1992, c. 49, s. 21] of the Immigration Act2 to determine whether the issue of a departure notice in respect of such a person would infringe such an Aboriginal right.
Facts
The following facts have been found in the previous proceedings or admitted by the appellant. He was born in 1954 in the State of Washington, U.S.A. He is a U.S. citizen, and he is a member of the Colville Federated Tribe whose headquarters are at Nespelem, Washington. He does not have Canadian citizenship, nor is he registered as an Indian under the Indian Act of Canada. He admits that he has lived in the Slocan Valley of British Columbia since 1986 "with the exception of a few brief periods". (The Adjudicator said that she fully accepted that the appellant is "an Aboriginal person of the Sinixt or Arrow Lake people" but did not further define what she meant by that term.) On August 27, 1991 the appellant was convicted in British Columbia of an offence under section 6 of the Narcotic Control Act3 for cultivating cannabis. This is an indictable offence subject to a term of imprisonment not exceeding seven years. As a result of this conviction, he was brought to inquiry under the Immigration Act, paragraphs 19(2)(a) [as am. by S.C. 1992, c. 49, s. 11] and 27(2)(c), it being the duty of the Adjudicator under section 32 of that Act to determine whether, if the facts were as alleged, he should be given a departure or deportation order.
At the hearing before the Adjudicator, counsel for the appellant raised the argument that by virtue of his Aboriginal rights the appellant cannot be ordered to leave Canada. The appellant himself in his testimony indicated that he did not recognize the sovereignty of Canada or of the United States but only the sovereignty of his own people whom, he alleged, had used territory on both sides of what is now the international border, such territory now being found in the Province of British Columbia and in the State of Washington. According to him the Arrow Lakes people had moved about in this area continuously since long before the Europeans arrived. He said that he was involved, among other things, in protecting burial sites of his people in Canada. His counsel asserted before the Adjudicator that the appellant's Aboriginal rights included hunting, fishing, foraging, traversing and travelling within the territory now known as Canada, rights to which the appellant is entitled through his relationship to the Arrow Lakes people. Considerable documentary evidence was filed before the Adjudicator in support of these contentions. There was also material indicating that when the Colville Reservation was established in the State of Washington in 1870 many of the Arrow Lakes people moved there. In 1902 one reserve was established for the Arrow Lakes Band in Canada but in 1953 the last surviving member of this Band died. The Band was declared extinct and the Reserve reverted to the Crown.4 It appears, however, that the Adjudicator indicated during the course of the proceedings that she could not make any such findings going to the existence or scope of constitutionally-entrenched Aboriginal rights or the entitlement of the appellant to assert any such right.5 Therefore, further oral evidence was not called before the Adjudicator.
In the result, the Adjudicator held that she had no jurisdiction to determine whether the appellant was "an Aboriginal person of Canada", a determination critical to any finding that the guarantee of section 35 of the Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]], would guarantee the rights which he was asserting. Instead, she found that he was subject to removal from Canada because of his conviction and she issued a departure notice to that effect. In doing so, she had regard to subsections 4(1), (2) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 3] and (3) as well as subsection 5(1) of the Immigration Act which provide as follows:
4. (1) A Canadian citizen and a permanent resident have a right to come into Canada except where, in the case of a permanent resident, it is established that that person is a person described in subsection 27(1).
(2) Subject to any other Act of Parliament, a Canadian citizen and a permanent resident have a right to remain in Canada except where, in the case of a permanent resident, it is established that that person is a person described in subsection 27(1).
. . .
(3) A person who is registered as an Indian pursuant to the Indian Act has, whether or not that person is a Canadian citizen, the same rights and obligations under this Act as a Canadian citizen.
5. (1) No person, other than a person described in section 4, has a right to come into or remain in Canada.
In doing so, she declined to consider the effect of subsections (1) and (2) of section 35 of the Constitution Act, 1982 which provide as follows:
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.
The appellant sought judicial review of this order in the Federal Court Trial Division. The Motions Judge dismissed the application [[1995] 1 C.N.L.R. 230] on the basis that, whether such Aboriginal rights had existed or not, or whether the appellant was entitled to rely on them, any such rights must have been extinguished by sections 4 and 5 of the Immigration Act as quoted above. These sections, she observed, had been adopted in 1977 [S.C. 1976-77, c. 52], five years before the adoption of the Constitution Act, 1982. She noted that section 35 of the latter Act only recognizes and affirms "existing" Aboriginal rights. She found the extinguishment of such rights by the Immigration Act before 1982 to be amply clear. Taking the position she did, she did not find it necessary to deal with the question of whether the Adjudicator could have decided these issues. Counsel for the appellant requested that she certify a question as a basis for appeal to this Court under subsection 83(1) [as am. by S.C. 1992, c. 49, s. 73] of the Immigration Act. She did not accept the question as drafted by counsel but certified the two following questions [at paragraph 13]:
1. Does an aboriginal person who is a member of a tribe whose traditional territory straddles the Canada-U.S. border, and who is neither a Canadian citizen nor a person registered under the Indian Act, have a right to come into or remain in Canada?
2. Did the adjudicator in this case misinterpret or unduly limit her jurisdiction to deal with the constitutional issue which was raised?
On appeal to this Court the appellant in his memorandum of fact and law asked for an order that he is one of the "Aboriginal peoples of Canada" with the right to "come in and remain in Canada to pursue his spiritual, political, economic, and social purposes". He asked for a determination that the Adjudicator had unduly limited her jurisdiction to deal with the constitutional issue. He sought the quashing of the Adjudicator's order or stay of that order until his status is properly determined. Further, he asked for a determination that subsection 4(3) and section 5 of the Immigration Act are contrary to section 15 of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]. In oral argument before us the first request for relief was amended somewhat so as to seek an order that the appellant "has an Aboriginal right to participate in traditional Arrow Lakes customs, traditions, and practices on Arrow Lakes territory, including that traditional Arrow Lakes territory which is on the Canadian side of the Canada-USA border".
At the hearing we first indicated to counsel for the appellant that we could not make findings of fact necessary for the determination of the continued existence of a relevant Aboriginal right, nor of the justification for its possible extinguishment, as we had no proper evidence before us. The Adjudicator had made no findings on these matters and indeed only limited evidence was put before her because of her unwillingness to do so. Nor did the Motions Judge make any findings necessary for such purposes because she had found that, as a matter of law, any such alleged rights, if they ever existed, had been extinguished by the Immigration Act.
Further, we asked for submissions by counsel on the question of whether the Court should consider the relief based on section 15 of the Canadian Charter of Rights and Freedoms, this issue having never been raised before the Adjudicator nor before the Motions Judge and no findings of fact having been made in respect of it. After hearing submissions we indicated that we could not entertain this argument.
Issues
It appears to me that the following issues must be addressed by this Court:
1. Can the certified questions be answered?
2. Was the Motions Judge correct in finding that the alleged right to remain in Canada, if it existed, had been extinguished?
3. If not, can this Court answer question 1 as to the right to remain in Canada?
4. If not, can the matter be referred back to the Adjudicator for determination?
Analysis
1. Can the certified questions be answered?
Question 1 gives rise to some difficulties because it goes beyond the matters necessary for determination of the judicial review in question and calls for an answer that could not be determinative of this appeal. It asks whether an Aboriginal person, in the circumstances which the appellant alleges, has a right to "enter and to remain in Canada". The only issue before the Adjudicator, and before the Motions Judge, was whether this appellant had some right to remain in Canada which the Adjudicator could not remove. Indeed the Motions Judge correctly described the issue before her in the opening sentence of her reasons as follows:
The issue in this case is whether an aboriginal person who is neither a Canadian citizen nor a registered Indian has a right to remain in Canada because he belongs to a tribe whose traditional territory straddles the Canada-United States border.
The Adjudicator was obliged to determine whether the appellant should be ordered removed from Canada because of a criminal conviction here. She was not invited to consider whether he had a right to enter Canada and a judicial review of her decision cannot be directly determinative of that right. It is well established that this Court will not, in answering questions certified under subsection 83(1) of the Immigration Act, decide matters which cannot affect the outcome of the judicial review.6 We can therefore only consider question 1 as it relates to the appellant's alleged right to remain in Canada.
The second question is clearly within the ambit of the issues properly before the Motions Judge and can be answered by this Court.
2. Was the Motions Judge correct in finding that the alleged right to remain in Canada, if it existed, had been extinguished?
The Motions Judge determined that as a matter of law there had been extinguishment. We must consider whether she was correct in law in finding that, even if the appellant or his ancestors had such rights as he claims, they had been extinguished by operation of the Immigration Act.
I have concluded that it was not open to the Motions Judge to determine as a matter of law that the Aboriginal right asserted had been extinguished. The Motions Judge relied on sections 4 and 5 of the Immigration Act as quoted above. She correctly concluded that by the terms of those sections alone the appellant, by virtue of subsection 5(1), has no right to remain in Canada. He is neither a Canadian citizen nor registered under the Indian Act. In her view Parliament has spoken clearly through these sections in limiting the classes of persons who have a right to enter or remain in Canada and it is not in dispute that the appellant comes within none of these classes. According to his evidence before the Adjudicator, this is a matter of indifference to him since he does not recognize the sovereignty of Canada or the United States. The Motions Judge properly eschewed this view, and went on to apply the literal meaning of the Immigration Act.
However, the Motions Judge determined this matter in 1994 and since that time the jurisprudence, particularly that of the Supreme Court of Canada, has considerably evolved in the direction of narrowing the concept of extinguishment of Aboriginal rights. I understand that jurisprudence, at least as of this date, to mean the following:
1. Parliament or the government must have demonstrated a "clear and plain intention" to extinguish the right in question. To this end it must have been able to identify the right and to determine whether it should be extinguished.7 A general regulatory scheme which may affect the exercise of Aboriginal rights does not constitute their extinguishment. As was said in R. v. Gladstone:8
. . . the failure to recognize an aboriginal right, and the failure to grant special protection to it, do not constitute the clear and plain intention necessary to extinguish the right.
2. The burden of proof to establish the existence of such a right is of course on he who asserts it, although he may not be subject to the same standards of proof expected of other claimants in the Court.9 The mere fact that the relevant sovereign power did not recognize the existence of such a right is not enough to negate its existence.10
3. If the existence of a specific Aboriginal right is established by these rules, then legislation necessarily inconsistent with that right is not, per se, enough to establish extinguishment nor is mere regulation of the right.11
Understandably, the Motions Judge did not address all these issues when she decided this matter in 1994, as much of the now governing jurisprudence had not yet developed. I believe that in the light of this jurisprudence it is not possible to assume that, regardless of how the right may be defined or established by evidence, it may be taken as extinguished by virtue of a law inconsistent with that right. Instead, specific consideration must be given to the precise definition of the right claimed, and the question of whether Parliament or the government intended in a sufficiently clear manner, to extinguish such a right. I believe that this may require further evidence, including extrinsic evidence as to Parliament's intention, evidence which was not put before the Adjudicator because of the restrictive view she took of her jurisdiction.
I am therefore of the view that the Motions Judge erred in finding extinguishment of the right as claimed. There was neither adequate evidence of the existence and definition of the right nor of a governmental intention to extinguish it.
3. If not, can this Court answer question No. 1 as to the right to remain in Canada?
There is one issue of law with which we can deal. The respondent contends that the existence of a sovereign state is inconsistent with any fetters on the power of that state to control which non-citizens may remain in the country. Suffice it to say that while there is ample authority in international and common law for that proposition, a sovereign state may fetter itself as to the means by which, the circumstances in which, and the agencies of government by which, such power of control may be exercised. Canada has by its Constitution limited the exercise of governmental powers which may be inherent as a sovereign state. For example, the Canadian Charter of Rights and Freedoms prohibits any actions by any agencies of government which might otherwise be within the authority of a sovereign state such as the power to control the content of the press or the power to carry out unlimited searches and seizures of those within its territory. In the same vein, section 35 of the Constitution Act, 1982 now guarantees existing Aboriginal rights not previously extinguished, and this carries the corollary that no agency of the state can, after 1982, extinguish those rights. As long as the Constitution remains unamended, Canadian authorities are subject to this limitation on what would otherwise be an incident of sovereign power. In fact, in adopting section 35, Canada has exercised its sovereignty by establishing a hierarchy of rights exercisable in Canada: a hierarchy which can only be alterered by another exercise of sovereign power, namely the amendment of the Constitution.
I therefore believe the matter must be approached in a more nuanced fashion. It is true that the abandonment of incidents of Canadian sovereignty should not be readily implied and pre-1982 laws which controlled the presence in Canada of non-Canadians should not be lightly set aside. But it must be recognized, in the light of the recent Supreme Court jurisprudence, that there are important assumptions to be applied against the pre-1982 extinguishment by Canadian laws of Aboriginal rights: our legal system at that time must be taken to have recognized that such rights could not be extinguished except by clear and plain measures to that effect. The fact that legislators and administrators at that time were not aware of such requirements nor indeed of the right now asserted does not validate the extinguishment. In fact it casts greater doubt on the alleged extinguisment because they could not have intended to extinguish that which they didn't know existed.
This does not mean, of course, that proper control of the border may not be a justification for Canada to control or limit in some way the exercise of relevant and unextinguished Aboriginal rights.12
I am therefore of the view that the sovereign nature of Canada is not a legal barrier per se to the existence of the Aboriginal rights as claimed, but I believe that this Court can go no farther in answering question 1.
Instead there will have to be a number of findings of fact which have as yet not been made. Without attempting to list these exhaustively, they will include findings such as the following. Is the appellant a member of an "aboriginal people of Canada" in order to be entitled to assert a right under section 35 of the Constitution Act, 1982 ? There may be mixed questions of law and fact here as to the indicia for identifying an "aboriginal people of Canada". Does the fact that the appellant's ancestors once occupied land here entitle them indefinitely to a claim to be an Aboriginal people of Canada? What continuing nexus may be required if such "people" are no longer resident in Canada? Further, there will have to be difficult findings as to whether this Aboriginal right ever existed and if so, how it is to be defined. As noted above, the appellant himself has somewhat altered his description of the right asserted as between his written submissions and his oral submissions to the Court. He will have to demonstrate that the right, as described by him, was exercised in pre-contact times and has continued more or less constantly since that time. The appellant will have to show that this practice or tradition, however it is defined, was integral to the distinct culture of the Arrow Lakes people.13 As the appellant asserts the right to stay in a particular area, he must show that the practice or custom was one exercised in the area in question. One of the practices or customs which he asserts, because he testified that he has engaged in it in Canada on behalf of his people, is the protection of burial grounds. I believe he must show that the Aboriginal right asserted to maintain burial grounds, which presumably is a communal right, is one which is intrinsically infringed because he in particular is not allowed to carry on this activity. The same problem would arise if he were, for example, serving a prison term in Canada in respect to his offence and thus unable to tend the burial grounds.
If an unextinguished right can be established, it will remain for the tribunal dealing with the question to determine if there has been an infringement of that right by sections 4 and 5 of the Immigration Act. And, if infringement is found, there may remain the question, if the Crown so asserts, as to whether such infringement is justified.14 According to the Supreme Court, infringements can be justified if they are in furtherance of a legislative objective that is compelling and substantial, and are consistent with the special fiduciary relationship between the Crown and Aboriginal peoples.15
These are all matters requiring findings of fact and arguments of law in relation thereto. As we indicated at the hearing, we are not in a position to make these determinations because we have very few findings of fact and very little evidence in the record, the Adjudicator having declined to receive further evidence in the light of her view of her inability to determine issues of constitutional law and Aboriginal rights.
4. If not, can the matter be referred back to the Adjudicator?
It was argued by the respondent that the Adjudicator cannot make the necessary determinations to dispose of the appellant's assertion of an Aboriginal right entitling him to remain in Canada. In part, that argument is that the jurisdiction of the Adjudicator is limited to making determinations under section 32 of the Immigration Act as to whether a person is subject to removal from Canada by the terms of the Immigration Act. It is also asserted that the Adjudicator can give no remedy requested by the appellant because it is bound to order his removal if he comes within the statutory conditions for that removal. The respondent also argues that as a practical matter an immigration inquiry, which is specifically required by the Act to be informal and expeditious, is not an appropriate forum for determining complex questions of Aboriginal rights and constitutional limitations.
I am satisfied that the Adjudicator does have the necessary powers to deal with this matter. Section 80.1 of the Immigration Act16 provides as follows:
80.1 (1) Subject to section 40.2 an adjudicator has sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction, that may arise in the course of proceedings that are required by this Act to be held before an adjudicator.
(2) An adjudicator has all the powers and authority of a commissioner appointed under Part I of the Inquiries Act and, without restricting the generality of the foregoing, may, for the purposes of any proceedings that are required by this Act to be held before an adjudicator,
(a) issue a summons to any person requiring the person to appear at the time and place set out in the summons to testify with respect to all matters within that person's knowledge relative to the subject-matter of the proceedings and to bring and produce any document, book or paper in the person's possession or under the person's control relative to the subject-matter of the proceedings;
(b) administer oaths and examine any person under oath;
(c) issue commissions or requests to take evidence in Canada; and
(d) do all other things necessary to provide for the full and proper conduct of the proceedings.
(3) Adjudicators shall sit at the times and at the places in Canada that are considered necessary by the Chairperson for the proper conduct of their business.
(4) An adjudicator shall deal with all proceedings as informally and expeditiously as the circumstances and considerations of fairness permit.
(5) An adjudicator is not bound by any legal or technical rules of evidence and, in any proceedings, may receive and base a decision on evidence adduced in the proceedings and considered credible or trustworthy in the circumstances of the case.
It will be noted that an adjudicator has jurisdiction to determine all questions of law and fact, to subpoena persons and things, and to examine under oath. It appears to me that the power to decide questions of law gives her both the duty and the obligation to determine constitutional questions which come before her.17 As for remedy, while the Adjudicator cannot make a declaration of invalidity of a provision of the Immigration Act she can treat provisions of the Act as invalid as applied to this individual, and thus refuse to make a removal order against him if that would constitute an unconstitutional infringement of his Aboriginal right.18
Of more force is the argument that a hearing before the Adjudicator does not as a practical matter provide a very good forum for disposing of complex issues of fact and constitutional law. In particular the evidence necessary to establish the Aboriginal right may cover some centuries of activities as well as involving the study of the relevant culture and the role of this right within that culture. As is apparent from subsections 80.1(4) and (5), supra, the adjudicator is authorized to act informally and is not bound by the technical rules of evidence.
There may, however, be other means for resolving this practical problem. Section 18.3 of the Federal Court Act19 provides as follows:
18.3 (1) A federal board, commission or other tribunal may at any stage of its proceedings refer any question or issue of law, of jurisdiction or of practice and procedure to the Trial Division for hearing and determination.
(2) The Attorney General of Canada may, at any stage of the proceedings of a federal board, commission or other tribunal, other than a service tribunal within the meaning of the National Defence Act, refer any question or issue of the constitutional validity, applicability or operability of an Act of Parliament or of regulations thereunder, to the Trial Division for hearing and determination.
It appears to me that the Attorney General of Canada could, on the return of this matter to the Adjudicator by this Court, make a reference to the Federal Court Trial Division under subsection 18.3(2) which enables her to "refer any question or issue of the constitutional validity, applicability or operability of an Act of Parliament". The difficult issue involved here, and in respect of which the Adjudicator may face practical problems in determination, is essentially a matter of the validity or applicability of sections 4 and 5 of the Immigration Act because of their possible conflict with section 35 of the Constitution Act, 1982.
We raised this matter with counsel at the hearing but counsel for the respondent took the position that the facts would first have to be found before there could be a reference. She relied on jurisprudence in relation to references taken under subsection 18.3(1). In my view there is an important difference between subsections 18.3(1) and 18.3(2). Subsection 18.3(1) allows the tribunal to refer "any question or issue of law, of jurisdiction or practice and procedure". This has been taken not to include a reference as to questions of fact. However, subsection 18.3(2) which was only added in 199020 allows the reference of "any question or issue of . . . constitutional validity, applicability or operability of an Act of Parliament". Questions of validity and applicability, at least, commonly involve questions of fact. I have identified above a number of the factual questions which will have to be determined in this matter by someone, to determine whether a right guaranteed under section 35 of the Constitution Act, 1982 has been infringed and, if so, whether that infringement is justified. Paragraph 300(e) of the Federal Court Rules, 1998 [SOR/98-106] provides that a reference under section 18.3 of the Federal Court Act should be dealt with as an application subject to certain modifications provided for in rules 320-323. This would mean that ordinarily evidence would be produced by affidavits, subject to cross-examination, although rule 316 allows the Court to authorize the taking of viva voce evidence as well.
Disposition
I would therefore allow the appeal in part, quash the departure order of November 16, 1993 and refer the matter back to an adjudicator under the Immigration Act for determination in accordance with these reasons.
The questions should be answered as follows:
Question 1: This question cannot be answered with respect to the rights of such an Aboriginal person to enter Canada. With respect to his right to remain, it cannot be answered in the absence of any determination on the evidence with respect to such matters as: whether such person belongs to an Aboriginal people of Canada; the precise definition of the right claimed; the existence of an historic practice upon which the right is allegedly based; the relationship of that practice to the culture of an Aboriginal people of Canada; the intention of the Parliament and Government of Canada to extinguish such a right; whether such right, if established and not extinguished, has been infringed; and whether such infringement if it exists is justified. Only in this way can an answer to this question be properly limited to that which is required for determination of the appellant's case.
Question 2: Yes.
Décary J.A.: I agree.
Linden J.A.: I agree.
1 R.S.C., 1985, c. I-5.
2 R.S.C., 1985, c. I-2.
3 R.S.C., 1985, c. N-1.
4 See Appeal Book, vol. II, at pp. 328-329; Appeal Book, vol. VI, at p. 1050.
5 Appeal Book, vol. VI, at p. 1118 ff.
6 See e.g. Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.); Malouf v. Canada (Minister of Citizenship and Immigration) (1995), 190 N.R. 230 (F.C.A.); Singh v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 127 (C.A.); McLeod v. Canada (Minister of Citizenship and Immigration), [1999] 1 F.C. 257 (C.A.); Gregory v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 606 (T.D.) (QL).
7 ;R. v. Sparrow, [1990] 1 S.C.R. 1075, at p. 1099.
8 [1996] 2 S.C.R. 723, at p. 753.
9 ;R. v. Van der Peet, [1996] 2 S.C.R. 507, at pp. 558-559; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, at pp. 1068-1069, 1072-1076.
10 ;R. v. Côté, [1996] 3 S.C.R. 139; R. v. Adams, [1996] 3 S.C.R. 101.
11 See e.g. Sparrow, supra, note 7, at p. 1097; Delgamuukw, supra, note 9, at p. 1120; Van der Peet, supra, note 9, at p. 585.
12 ;Cf. Mitchell v. M.N.R., [1999] 1 F.C. 375 (C.A.), at para. 18.
13 See e.g. Van der Peet, supra, note 9, at p. 549.
14 Id., at p. 526.
15 Delgamuukw, supra, note 9, at pp. 1107-1108.
16 As enacted by S.C. 1992, c. 49, s. 70.
17 See e.g. Tétrault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22.
18 ;Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5, at p. 17.
19 R.S.C., 1985, c. F-7 [as enacted by S.C. 1990, c. 8, s. 5].
20 S.C. 1990, c. 8, s. 5.