The Extinguishment of Aboriginal Rights and the James Bay Agreement: The Condition 14 Test

Abstract

In 1977, an Act of the Parliament of Canada approved the James Bay and Northern Québec Agreement signed by the Crown and the Cree and the Inuit of Quebec. The Act purported to extinguish the Aboriginal title and interests of “all Indians and all Inuit” in and to the territory covered by the Agreement, thus extending the extinguishment clause to the land claims of Aboriginal peoples that were not parties to the Agreement. This purported unilateral extinguishment clause was met with immediate resistance from various non-signatory Indigenous groups who claimed that they were not properly consulted and that their Aboriginal title was unjustly extinguished. This article examines the validity of this claim, particularly whether, prior to the enactment of section 35 of the Constitution Act, 1982, there were any constitutional constraints on Parliament’s ability to unilaterally extinguish the rights of Indigenous peoples. The article argues that the 1870 Order in Council admitting Rupert’s Land into Canada, in particular Condition 14 of the Order, provides such constraints and thus precludes the unilateral extinguishment of the Aboriginal title of the non-signatory people. This article ultimately calls for negotiation and reconciliation among all parties involved in order to resolve the outstanding land claims and ensure the equitable recognition of Aboriginal rights.