Treaty Lands and Crown Obligations: The "Tracts Taken Up" Provision

The "tracts taken up" provision found in many treaties across Canada puts geographic limits on First Nations' hunting, trapping and fishing treaty rights. Historically, provinces have assumed that this provision, coupled with the surrender of First Nation lands, gives them unilateral authority to "take up" such land and exploit its natural resources, with no legal obligation to consult or compensate the affected First Nations. This article critically examines these assumptions, and explores the relationship between treaty rights to hunt, trap and fish and the Crown's obligations under the "tracts taken up" provision. The author begins by canvassing the Supreme Court of Canada decisions in the Sparrow, Delgamuukw, Badger and Marshall cases, which illustrate the trend toward acknowledging the collective nature of treaty rights and circumscribing the Crown's ability to use the tracts taken up provision to limit them. He argues, however, that the approach now used to limit Crown authority is inadequate. Drawing on underlying principles previously recognized by the Court, by American cases and by recent scholarship, he proposes a new two-part approach to the interpretation of treaty rights. First, the substance of the rights in question would be analyzed, not as a series of individual rights but as a guarantee of collective survival. Second, courts would consider the measures that must be taken to ensure the viability of the resource on which the particular right depends. By placing positive obligations on the government to protect treaty rights, this new approach would ensure that the honour of the Crown is upheld and that the government fulfills its treaty promises to the First Nation as a whole. The author concludes with a consideration of the constitutional division of powers, and argues that the provinces do not have a plenary power to "take up" treaty lands. Provincial powers under various treaties are limited or non-existent. To the extent that provinces do have authority to take up lands, they must meet fiduciary duties traditionally ascribed to the federal government. In the interests of stability and certainty, the federal and provincial Crowns should increase their efforts to negotiate arrangements with First Nations for the management of Crown lands.

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