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Creating Constitutional Space for Indigenous Peoples: Canada’s Ambivalence 1. Introduction a.

Theses Canada opened a new chapter in the history of its relationship with its indigenous peoples when the Constitution Act, 19821 came into force on 17 April 1982. Section 35 in particular expressed a new, constitutional, commitment on the part of Canada to protecting the aboriginal and treaty rights of its aboriginal peoples.2 In its first opportunity to interpret Section 35, the Supreme Court of Canada described Section 35 as a “promise to the aboriginal peoples of Canada.”3 The indigenous peoples of Canada justifiably expected that the aboriginal rights henceforth amendable to Section 35’s promise of constitutional protection included the full range of aboriginal rights previously amenable only to common law protection. Aboriginal rights previously amenable to common law protection included the rights of these peoples to continue to govern themselves and their territories through their own political institutions and laws. Their expectation, they soon discovered, was not borne out. In subsequent decisions, the Supreme Court of Canada narrowed Section 35’s promise to Canada’s indigenous peoples to a promise to protect what defines them as aboriginal. The promise did not extend to what constitutes them as peoples, whether these constituting factors define them as aboriginal or not. In effect, the Court attempted to shift the focus of aboriginal rights and aboriginal rights jurisprudence from rights accruing to aboriginal peoples as peoples who were already governing themselves and their territories when European peoples began establishing themselves in North America, to rights accruing to aboriginal peoples as distinctive cultural groups, whose cultures

Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. Although the word “indigenous” has broader scope than “aboriginal”, I shall generally use them interchangeably when speaking of peoples (i.e. whether speaking of indigenous or aboriginal peoples in Canada). I shall not, however, do the same when speaking of rights. The term “aboriginal rights” has a specific meaning in Canadian law that is not interchangeable with the term “indigenous rights”. 3 R. v. Sparrow, [1990] 1 S.C.R. 1075 at para. 1 [hereinafter Sparrow].
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trace back to before European peoples began establishing themselves on the continent. The first of my paper’s two basic theses is that what the Supreme Court of Canada has attempted to do is both a departure from Canada’s earlier legal tradition and a narrowing of the legal space formerly available to indigenous peoples. My paper’s second basic and, practically speaking, more important thesis – which brings me to why I speak of what the Court attempted to do – is that the earlier legal tradition still survives “beneath the radar,” so to speak, and may yet be rehabilitated. The fact that the new legal orthodoxy has not fully displaced the old is an expression of Canada’s ambivalence regarding its promise in 1982 to yield constitutional space to indigenous peoples. Non-indigenous Canada is torn between, on the one hand, holding onto the privileges obtained through its long history of usurpation, dispossession, and myriad other forms of injustice and, on the other, putting its relationship with indigenous peoples on a just footing. So long as it could – comforted by its founding myths and its courts’ complicity - “look the other way,” disregard indigenous peoples, and do as it pleased, the rights of aboriginal peoples qua peoples were little more than a theoretical challenge to the State’s political, legal, and economic status quo. However, raised to constitutional status in 1982, their potential for challenging the status quo became realizable. The Supreme Court of Canada’s subsequent reconstrual of aboriginal rights as cultural rights, focused on the cultural difference of aboriginal peoples, severely curtailed this potential. In retrospect, moreover, it is clear that the Court was also working to ensure that whatever potential remained in aboriginal rights qua cultural rights to challenge the status quo, this potential would be only incrementally and very slowly realized.4

It is not incidental that the Supreme Court of Canada introduced its reconstrual of aboriginal rights as cultural rights in a simultaneously released trio of aboriginal fishing rights decisions originating in British Columbia, that is, R. v. Van der Peet, [1996] 2 S.C.R. 507; R. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672; and R. v. Gladstone, [1996] 2 S.C.R. 723. I say “not incidental” because aboriginal rights challenges to the status quo have their potentially greatest effect in British Columbia where the Province’s entrenched political, legal, and economic interests developed in, and remain dependent on, disregard of aboriginal peoples and their rights. In Canadian aboriginal rights jurisprudence, British Columbia is the tail that wags the dog.
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The fact that the earlier legal tradition described above still survives, despite the Supreme Court of Canada’s veiled efforts to the contrary,5 creates considerable and, I would add, increasing tension in the Canadian jurisprudence on aboriginal rights. This tension reflects a deeper contest, if you will, between indigenous and non-indigenous peoples for constitutional space within modern Canada. b. Where I Live and Work I live and work in Vancouver, British Columbia, Canada. I am an Associate Lawyer with the law firm, Peter Grant and Associates. We represent indigenous people, including indigenous governments, exclusively. I practice mainly in the area of constitutional law. Canada is a federal state. It has 10 provinces and 3 territories. Bordering the Pacific Ocean, British Columbia is the western-most province. British Columbia’s land area (944,735 sq. km) is almost twice the size of Spain’s (504,782 sq. km). Its population (around 4.2 million) is less than 1/10th of Spain’s (around 46 million). This past year, 2008, marks the 150th year since British Columbia’s founding as a British Colony. 2. Section 35 of Constitution Act, 1982 The Constitution Act, 1982 initiated a new era in the history of Canada’s constitution and thus a new era in the history of Canada itself. Section 35 of the 1982 Act signaled Canada’s commitment to building a new relationship with its indigenous peoples who, within Canada, are usually denominated aboriginal peoples. Section 35 says: 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.
Those in the Court responsible for these efforts never acknowledged their departure from the earlier tradition in their reasons for judgment.
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(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired. (4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons. I would like to draw attention to and elaborate on a few things in this text before proceeding to my main discussion. First, Section 35(2) says that the aboriginal peoples whose rights are protected by Section 35(1) include the Indian, Inuit and Métis peoples of Canada. Unlike many in the United States who still call themselves Indians or American Indians, Indian peoples in Canada tend to prefer to speak of themselves as “First Nations”. First Nations peoples live in nearly every region of Canada except the far north, where the Inuit live. The origin of the Métis is found in the early stages of the fur trade in Canada. First French, and then Scottish, English and other European-descended male fur traders took up with First Nations (or sometimes Inuit) women, remained in the country, and raised families. In some places, most notably in Manitoba, communities with distinctive cultures arose, neither First Nations nor French nor Scottish, et cetera. Second, the rights protected by Section 35 are of two kinds: aboriginal and treaty rights. Stated simply, aboriginal rights are rights arising from aboriginal peoples’ prior occupation of Canada – that is, prior to European contact,6 the Crown’s assertion of sovereignty,7 or the Crown’s effective
Aboriginal rights of First Nations and Inuit peoples, such as hunting and fishing rights, must trace their origin to pre-contact practices, customs and traditions, that is, to prior to their contact with Europeans. The time of contact varies across Canada, roughly from the 1500s to the 1800s. See Van der Peet at paras. 60ff. 7 Aboriginal title, which is a right to the exclusive occupation and use of the land, must trace its origin to the Crown’s assertion of sovereignty. Again, the time of the Crown’s assertion of sovereignty varies across Canada. Regarding British Columbia, the prevailing view is that the Crown asserted sovereignty over the general area in 1846. Aboriginal title is an aboriginal right under Section 35(1). It is now somewhat customary in Canadian legal/academic circles to rely on context to indicate whether we are speaking of aboriginal rights so as to include aboriginal title or not. In any case, Section 35(1) is taken to include aboriginal title. See the Supreme Court of Canada’s decision in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 at paras. 144ff [hereinafter
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control,8 as the case may be. Treaty rights are rights contained in treaties negotiated with the Crown. Historically, treaties in Canada have mainly concerned the formation of military alliances, the restoration of peace after hostilities, and the surrender of aboriginal rights to/on lands in exchange for certain Crown promises, such as the reservation of parcels of land protected from the encroachment of settlers and ongoing hunting and fishing rights on lands not taken up for settlement or other purposes. Section 35(3) is concerned with the future negotiation of treaties of the latter kind. The earliest treaties were negotiated with First Nations peoples. All of the historical treaties, that is, treaties signed roughly before 1930, are with First Nations peoples. There are a small number of modern treaties, about one dozen, beginning in the mid 1970s, with most concluded within the past decade. In British Columbia, fourteen treaties were negotiated within the original colony on Vancouver Island in the 1850s. In these treaties, the First Nations gave up their rights to certain parcels of land in exchange for, among other things, promises that they could continue hunting and fishing as they had formerly. In 1901, the federal Crown concluded a treaty with First Nations whose territories included the northeastern quadrant of British Columbia. In the past decade, three other treaties have been concluded in British Columbia. What this means – and it is important to note for purposes of this paper – is that most of the land in British Columbia is still subject to the aboriginal rights claims of the Province’s First Nations peoples. The remaining portion of my paper is focused on Section 35(1). For the sake of convenience, I shall henceforth speak simply of Section 35 rather than Section 35(1). I trust this will cause no confusion. 3. Magnitude of the Task As I stated earlier, Section 35 of the Constitution Act, 1982 signaled Canada’s commitment to building a new relationship with its aboriginal peoples. And as the words of the provision suggest, this new relationship is to be built upon the Canadian state’s recognition and affirmation of the
Delgamuukw]. 8 The aboriginal rights of Métis peoples must trace their origin to pre-control practices, customs and traditions, that is, to prior to when Europeans achieved political and legal control of the area. See the Supreme Court of Canada’s decision in R. v. Powley, [2003] 2 S.C.R. 207 at paras. 36ff. 5

aboriginal and treaty rights of Canada’s aboriginal peoples. Something important left unsaid by the provision is that the Canadian state’s history of ignoring, disrespecting, and sometimes even denying the aboriginal and treaty rights of aboriginal peoples - and the ever present consequences of this history – gave rise to the need for Section 35.9 Set against this background, Section 35 is occasionally associated with a remedial purpose.10 For those unfamiliar with the particulars, including, sadly, many Canadians, it is important to gain some sense of the magnitude of the commitment undertaken by the State in 1982. There are 60-80 historically based indigenous nations in Canada.11 These nations divide into 1000 or so local indigenous communities.12 Largely for administrative purposes, most of these communities relate as “bands” to Federal and Provincial governments. There are more than 600 bands in Canada, almost half of them in British Columbia. The number of bands in British Columbia reflects the fact that at the time of Spanish and English contact in the late 18th century, the northwest pacific coast was the most densely populated region north of the Mexico City area. The population – later decimated by the introduction of European diseases – was sustained by the abundance of sea and river life and in particular by the wild Pacific salmon. The diversity of indigenous peoples is reflected in the fact that at least 7 of Canada’s 11 or so distinct indigenous language groups are found within the Province, at least two of which are language isolates. The Supreme Court of Canada has rejected a global approach to defining the aboriginal rights of aboriginal peoples in favor of a
In Sparrow, the Supreme Court of Canada acknowledged: ... there can be no doubt that over the years the rights of the Indians were often honoured in the breach.... As MacDonald J. stated in Pasco v. Canadian National Railway Co.: "We cannot recount with much pride the treatment accorded to the native people of this country" [para. 49; citation omitted]. 10 For Supreme Court of Canada judgments, see, for example, Sparrow at para. 47 and Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511 at para. 32 [hereinafter Haida Nation]. 11 Report of the Royal Commission on Aboriginal Peoples, Vol. 2, Restructuring the Relationship, Part One, “Toward an Aboriginal Order of Governance,” at page 72 (Ottawa: Supply and Services Canada, 1996). 12 Ibid.
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contextualized, case-by-case approach.13 Thus the rights recognized and affirmed by Section 35 are the rights of particular aboriginal peoples, with their own particular cultures, traditions, and histories. In consequence, no two aboriginal peoples need occupy the constitutional space afforded by Section 35 in exactly the same way or to the same extent. 4. Aboriginal Rights and the Common Law The constitutional space potentially occupied by any given aboriginal people is proportionate to their rights as recognized and affirmed in Section 35. This is true for both aboriginal and treaty rights. In this paper, I wish to focus on aboriginal rights. The doctrine of aboriginal rights existed prior to the Constitution Act, 1982. To understand the doctrine, it is helpful to know that the British Crown recognized that North America was already inhabited by independent indigenous nations, with their own institutions and laws. Because it did not look upon the land as terra nullius,14 it did not consider itself free to deal with the land with no regard for the prior occupants’ claims.15 Indeed under
R. v. Kruger, [1978] 1 S.C.R. 104. As former Justice, now Chief Justice of Canada, McLachlin wrote in her dissent in Van der Peet at para. 270: The assertion of British sovereignty was … expressly recognized as not depriving the aboriginal people of Canada of their pre-existing rights; the maxim of terra nullius was not to govern here. This was not a point of contention within the Court. See also Justice Lebel’s separate but concurring judgment in R. v. Marshall; R. v. Bernard, [2005] 2 S.C.R. 220 at para. 132 [hereinafter, Marshall/Bernard]. 15 In Canada, as in the United States, it is accepted that Chief Justice John Marshall of the United States Supreme Court in Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823) gave a relatively accurate account how, at least from the British perspective, the European powers approached these questions: On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all, and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new by bestowing on them civilization and Christianity in exchange for unlimited independence. But as they were all in pursuit of nearly the same object, it
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English law, unless otherwise modified or abrogated, the institutions and laws of the prior occupants were to continue much as they were before the Crown’s assertion of sovereignty over the people and their lands.16 Unfortunately, those acting on behalf of the Crown in British Columbia eventually adopted a contrary view. Although a few treaties were signed with First Nations peoples on Vancouver Island in the 1850s prior to the settlement and development of the areas,17 colonial authorities basically ignored the rights of the prior indigenous inhabitants after settlement of the
was necessary, in order to avoid conflicting settlements and consequent war with each other, to establish a principle which all should acknowledge as the law by which the right of acquisition, which they all asserted should be regulated as between themselves. This principle was that discovery gave title to the government by whose subjects or by whose authority it was made against all other European governments, which title might be consummated by possession. The exclusion of all other Europeans necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which by others all assented. Those relations which were to exist between the discoverer and the natives were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them. In the establishment of these relations, the rights of the original inhabitants were in no instance entirely disregarded, but were necessarily to a considerable extent impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty as independent nations were necessarily diminished, and their power to dispose of the soil at their own will to whomsoever they pleased was denied by the original fundamental principle that discovery gave exclusive title to those who made it. Almost ten years later, in Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), at page 559, Chief Justice Marshall wrote: The Indian nations had always been considered as distinct, independent political communities, retaining their original rights, as the undisputed possessors of the soil, from time immemorial, with the single exception of that imposed by irresistible power, which excluded them from intercourse with any other European potentate than the first discoverer of the coast of the particular region claimed. 16 This is known as the doctrine of continuity. On the doctrine in regard to aboriginal peoples, see the Supreme Court of Canada’s judgments in Guerin v. Canada, [1984] 2 S.C.R. 335 at para. 89 [hereinafter Guerin], and Mitchell v. Canada (Minister of National 8

Province began in earnest in the 1860s. For more than 120 years thereafter, successive colonial and then provincial governments in British Columbia took the position that First Nations peoples had no legal rights arising from their prior occupation and even if they did, their rights had been extinguished through colonial acts or instruments. It was only after being pushed by the courts, and especially by the Supreme Court of Canada in the 1970s and 1980s, that the Province began to modify its stance. But to return to the main thread of my argument, those aboriginal institutions and laws compatible with Crown sovereignty were in principle incorporated into the English common law. This meant that aboriginal political institutions and laws could be recognized by the courts. The earliest example of such recognition by a Canadian court is the case of Connolly v. Woolrich.18 The case was decided on 9 July 1867, a mere eight days after Canadian confederation. It concerned the estate of a man of European descent who, after leaving Quebec to work in the fur trade in the West, had married a Cree woman according to Cree custom in 1803. He later returned to Quebec, left her and married another woman in Quebec under Quebec law. The issue in Connolly was whether the marriage according to Cree customary law was valid under Canadian law. Having found that the marriage possessed three characteristics of marriage cognizable by Canadian law (that is, voluntariness, permanence, and exclusivity), the court concluded that the marriage was valid. The Connolly case is a clear example of the potential for the recognition of aboriginal institutions and laws by the dominant, common law legal system. Unfortunately, this potential went largely unrealized in the subsequent history of Canada.19
Revenue), [2001] 1 S.C.R. 911 at paras. 9-10 [hereinafter Mitchell]. For a seminal decision in English jurisprudence, see the Privy Council’s decision in Amodu Tijani v. Southern Nigeria (Secretary), [1921] 2 A.C. 399. 17 On the Douglas Treaties generally, see R. v. Morris, [2006] 2 S.C.R. 915 at paras. 19ff. 18 Connolly v. Woolrich, (1867), 17 R.J.R.Q. 75. 19 A few subsequent cases confirmed the power of the common law courts to recognize aboriginal self-governing rights, for example, rights regarding marriage, inheritance, adoption. One of the most significant recent decisions is the British Columbia Court of Appeal’s decision in Casimel v. Insurance Corp. of British Columbia, [1994] 2 C.N.L.R. 22. There the Court of Appeal recognized an aboriginal people’s customary law regarding adoption. The decision contains a good summary of the previous case law. 9

Despite the common law’s potential for recognizing a broad spectrum of aboriginal institutions and laws, aboriginal rights existing under the common law were always subject to Parliament’s power to extinguish them at will. 5. Aboriginal Rights, the Constitution and the Supreme Court of Canada In its first decision dealing with the meaning and effect of Section 35, the 1990 Sparrow decision, the Supreme Court of Canada found that the constitutionalization of aboriginal rights in 1982 had protected them from the State’s powers of extinguishment. Henceforth, they could only be extinguished with aboriginal consent. And although the State could still infringe such rights, it could do so only with proper justification. It gave no indication that aboriginal rights protected by Section 35 did not encompass the rights of aboriginal peoples to continue to govern themselves and their territories according to their own political institutions and laws. Indeed, it appeared to affirm the potential of such rights to challenge the status quo: Our history has shown, unfortunately all too well, that Canada's aboriginal peoples are justified in worrying about government objectives that may be superficially neutral but which constitute de facto threats to the existence of aboriginal rights and interests. By giving aboriginal rights constitutional status and priority, Parliament and the provinces have sanctioned challenges to social and economic policy objectives embodied in legislation to the extent that aboriginal rights are affected.20 Its second opportunity to consider the meaning and effect of Section 35 came in 1996 with its decision in the Van der Peet case. The Chief Justice of Canada appeared ready to confirm that Section 35 protected the same range of aboriginal rights previously protected by the common law. Writing for the majority, the Chief Justice said: … it must be remembered that s. 35(1) did not create the legal doctrine of aboriginal rights; aboriginal rights existed and were recognized under the common law. At common law aboriginal rights did not, of course, have constitutional status, with the result that Parliament could, at any time, extinguish or
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Sparrow at para. 64. 10

regulate those rights: it is this which distinguishes the aboriginal rights recognized and affirmed in s. 35(1) from the aboriginal rights protected by the common law. Subsequent to s. 35(1) aboriginal rights cannot be extinguished and can only be regulated or infringed consistent with the justificatory test laid out by this Court in Sparrow....21 Although it was not immediately clear at the time - because the emphasis on cultural distinctiveness seemed innocent -, the Chief Justice in the next three paragraphs provided the Court’s overt justification for departing from the earlier legal tradition regarding aboriginal rights and thus narrowing the legal space previously available to indigenous people. Without acknowledging the departure, he wrote: The fact that aboriginal rights pre-date the enactment of s. 35(1) could lead to the suggestion that the purposive analysis of s. 35(1) should be limited to an analysis of why a preexisting legal doctrine was elevated to constitutional status. This suggestion must be resisted. The pre-existence of aboriginal rights is relevant to the analysis of s. 35(1) because it indicates that aboriginal rights have a stature and existence prior to the constitutionalization of those rights and sheds light on the reasons for protecting those rights; however, the interests protected by s. 35(1) must be identified through an explanation of the basis for the legal doctrine of aboriginal rights, not through an explanation of why that legal doctrine now has constitutional status. In my view, the doctrine of aboriginal rights exists, and is recognized and affirmed by s. 35(1), because of one simple fact: when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries. It is this fact, and this fact above all others, which separates aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal, and now constitutional, status.

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Van der Peet at para. 24 (citations omitted). 11

More specifically, what s. 35(1) does is provide the constitutional framework through which the fact that aboriginals lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown. The substantive rights which fall within the provision must be defined in light of this purpose; the aboriginal rights recognized and affirmed by s. 35(1) must be directed towards the reconciliation of the preexistence of aboriginal societies with the sovereignty of the Crown.22 To authoritatively support the position he was developing, the Chief Justice then went on to survey the previous Canadian, American, and Australian jurisprudence on aboriginal rights. In his survey, he interpreted the previous decisions on aboriginal rights as focused on the distinctiveness of the societies occupying the land when the Europeans arrived. He did this despite the fact that distinctiveness served no critical evidentiary, criterial, or other legal function in the previous jurisprudence. His interpretation of the Supreme Court of Canada’s earlier decision in Calder v Attorney General of British Columbia23 serves as the clearest example. Calder is the ground breaking case in Canada on aboriginal title. The Chief Justice’s initial summary remarks on Calder are above reproach. He wrote: In Calder, supra, the Court refused an application by the Nishga [Nisga’a] for a declaration that their aboriginal title had not been extinguished. There was no majority in the Court as to the basis for this decision; however, in the judgments of both Judson J. and Hall J. (each speaking for himself and two others) the existence of aboriginal title was recognized. Hall J. based the Nishga's aboriginal title in the fact that the land to which they were claiming title had "been in their possession from time immemorial" (Calder, supra, at p. 375). Judson J. explained the origins of the Nishga's [Nisga’a’s] aboriginal title as follows, at p. 328:

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Van der Peet at paras. 29-31 (emphasis added). [1973] S.C.R. 313. 12

Although I think that it is clear that Indian title in British Columbia cannot owe its origin to the [Royal] Proclamation of 1763, the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means and it does not help one in the solution of this problem to call it a "personal or usufructuary right". What they are asserting in this action is that they had a right to continue to live on their lands as their forefathers had lived and that this right has never been lawfully extinguished.24 It is in the Chief Justice’s gloss on the foregoing passage from Calder that he shifts the emphasis from the prior occupation of the land as the basis for aboriginal title to the distinctiveness of the prior occupants. He wrote: The position of Judson and Hall JJ. on the basis for aboriginal title is applicable to the aboriginal rights recognized and affirmed by s. 35(1). Aboriginal title is the aspect of aboriginal rights related specifically to aboriginal claims to land; it is the way in which the common law recognizes aboriginal land rights. As such, the explanation of the basis of aboriginal title in Calder, supra, can be applied equally to the aboriginal rights recognized and affirmed by s. 35(1). Both aboriginal title and aboriginal rights arise from the existence of distinctive aboriginal communities occupying "the land as their forefathers had done for centuries" (p. 328).25 So far as the criteria and evidence for the existence and scope of aboriginal title or rights were concerned, the Court in Calder put the functional emphasis on the fact of the prior occupation of British Columbia by aboriginal peoples not on their distinctiveness, whether amongst themselves or in comparison with the lately-arrived Europeans. After his summary of the Canadian, American, and Australian jurisprudence, the Chief Justice felt justified in asserted the following:
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Van der Peet at para. 33. Ibid. (emphasis added). 13

The Canadian, American and Australian jurisprudence thus supports the basic proposition put forward at the beginning of this section: the aboriginal rights recognized and affirmed by s. 35(1) are best understood as, first, the means by which the Constitution recognizes the fact that prior to the arrival of Europeans in North America the land was already occupied by distinctive aboriginal societies, and as, second, the means by which that prior occupation is reconciled with the assertion of Crown sovereignty over Canadian territory.26 In the very next paragraph, the Chief Justice set the (new) test for identifying aboriginal rights. He wrote: In order to fulfil the purpose underlying s. 35(1) -- i.e., the protection and reconciliation of the interests which arise from the fact that prior to the arrival of Europeans in North America aboriginal peoples lived on the land in distinctive societies, with their own practices, customs and traditions -- the test for identifying the aboriginal rights recognized and affirmed by s. 35(1) must be directed at identifying the crucial elements of those pre-existing distinctive societies. It must, in other words, aim at identifying the practices, traditions and customs central to the aboriginal societies that existed in North America prior to contact with the Europeans.27 6. Consequences of the Shift The Supreme Court of Canada’s adoption of the “integral to distinctive culture” test for determining whether a “practice, custom or tradition” is an aboriginal right under Section 35 is a noticeably narrower approach to the potential accommodation of aboriginal peoples, institutions, and laws under the common law. By interpreting Section 35 as protecting only those expressions of aboriginal cultures that define them as distinctive, the Supreme Court in effect denied protection to general social features common to indigenous and non-indigenous peoples, including general political and legal features.
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Ibid. at para. 43 (emphasis added). Ibid. at para. 44 (emphasis added). 14

Rather than give an extended apology for denying protection to such features, the majority in Van der Peet simply prosaically acknowledged the implication in passing: To satisfy the integral to a distinctive culture test the aboriginal claimant must do more than demonstrate that a practice, custom or tradition was an aspect of, or took place in, the aboriginal society of which he or she is a part. The claimant must demonstrate that the practice, custom or tradition was a central and significant part of the society's distinctive culture. He or she must demonstrate, in other words, that the practice, custom or tradition was one of the things which made the culture of the society distinctive -- that it was one of the things that truly made the society what it was. This aspect of the integral to a distinctive culture test arises from fact that aboriginal rights have their basis in the prior occupation of Canada by distinctive aboriginal societies. To recognize and affirm the prior occupation of Canada by distinctive aboriginal societies it is to what makes those societies distinctive that the court must look in identifying aboriginal rights. The court cannot look at those aspects of the aboriginal society that are true of every human society (e.g., eating to survive), nor can it look at those aspects of the aboriginal society that are only incidental or occasional to that society; the court must look instead to the defining and central attributes of the aboriginal society in question. It is only by focusing on the aspects of the aboriginal society that make that society distinctive that the definition of aboriginal rights will accomplish the purpose underlying s. 35(1).28 Perceptively, Madame Justice McLachlin, who later became and is now the Chief Justice of Canada and who registered her dissent from the majority in Van der Peet, noted that the Court’s approach to aboriginal rights was “based on a dichotomy between aboriginal and non-aboriginal practices, traditions and customs,” and that this approach

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Ibid. at paras. 55-56 (emphasis added). 15

… literally amounts to defining aboriginal culture and aboriginal rights as that which is left over after features of nonaboriginal cultures have been taken away.29 Despite the accuracy of her criticism of the majority in Van der Peet, she has, first as Justice and then as Chief Justice of Canada, fairly closely adhered to the Van der Peet test for aboriginal rights in her subsequent judgments. 7. Negotiated Treaties – the Favored Way of Filling Constitutional Space Another consequence of the shift to understanding aboriginal rights as rights aimed at protecting the defining features of distinctive aboriginal cultures has been that an aboriginal people’s aboriginal rights are now treated as a undefined set of inchoate rights, not to be clarified and duly recognized and affirmed as Section 35 promised, but to serve as basis or, more often, from the State’s point of view, an irritant stimulus for negotiating a clearly delimited set of closely defined treaty rights.30 Of course, nothing in Section 35 itself suggests that aboriginal rights are subordinate to treaty rights. Since roughly the mid 1990s, the Supreme Court of Canada has discouraged the litigation of aboriginal rights claims and encouraged Stateindigenous negotiations leading to treaties. Indeed the Court has made it clear that the recognition and protection of aboriginal rights is secondary to the final resolution – or, as it prefers to say, “reconciliation” - of aboriginal rights claims through negotiated treaty settlements.31 The consistent message is that neither the courts nor, consequently, the State is interested in recognizing and affirming aboriginal rights. Negotiating from the position of power, the State insists that indigenous peoples compromise their unacknowledged aboriginal rights for the sake of a final resolution of their claims in treaty.

Ibid. at para. 154. The Supreme Court of Canada set the stage for this outcome in Sparrow at para. 53 when it said: “Section 35(1), at the least, provides a solid constitutional base upon which subsequent negotiations can take place.” 31 See especially Delgamuukw at paras. 70, 186 & 207.
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Another way to put it is to say that indigenous peoples are expected to negotiate for constitutional space. They are expected to accept that the constitutional space they will come to occupy will not be equal to a space proportionate to their aboriginal rights. The negotiated constitutional space can in principle be greater than a space proportionate to their aboriginal rights but it will in fact be considerably less. In British Columbia, where a federal-provincial-First Nations treaty negotiation process has been in place for more than a decade, most of the negotiations are stalled. A large number of First Nations refuses to enter into such negotiations. It is widely recognized among First Nations that the current process will not yield a treaty settlement proportionate to their aboriginal rights. 8. The Earlier Tradition’s Lingering Presence Despite the Supreme Court of Canada’s reconstrual of aboriginal rights as protecting aboriginal cultural difference in Van der Peet and subsequent decisions, the earlier tradition has persisted of treating aboriginal rights as the rights of peoples who were already governing themselves and their territories prior to the arrival of Europeans. Its persistence was first confirmed in the Court’s 1997 decision in Delgammukw – a case originating in British Columbia. Nearly twenty-five years earlier, and almost a decade prior to Section 35, the Court had its first opportunity to consider an aboriginal title claim in the Calder case – a case also originating in British Columbia. In Calder, the Court considered the Nisga’a people’s claim to aboriginal title under the common law. In Delgamuukw, the Court had its first opportunity to consider an aboriginal title claim in light of Section 35. The claim was initiated by the Gitxsan and Wet’suwet’en peoples. As has already been noted, the Court in Calder placed no special emphasis on the distinctiveness or difference of aboriginal peoples in its discussion of common law aboriginal title. An aboriginal people’s prior occupancy of the land was the controlling factor. Given the facts that Court had adopted the integral-to-a-distinctive-culture test for aboriginal rights in Van der Peet and that it had also determined that aboriginal title is a species

17

of aboriginal right,32 it was logical, natural, and predictable that lawyers for the provincial and federal governments in Delgamuukw would argue that … aboriginal title merely encompasses the right to engage in activities which are aspects of aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures of the aboriginal group claiming the right and, at most, adds the notion of exclusivity; i.e., the exclusive right to use the land for those purposes.33 Nonetheless, Chief Justice Lamer, who was responsible for introducing the integral-to-a-distinctive-culture test for aboriginal rights in Van der Peet and who was again writing for the majority, rejected the State’s argument. Doing so required some, jurisprudentially speaking, agile backpedaling on his part. To justify his rejection of the State’s argument, the Chief Justice invoked two then-recent Supreme Court of Canada decisions in which a notion of aboriginal title less restricted than the notion advanced in the State’s argument was maintained.34 He studiously, one cannot help concluding, avoided invoking pre-1982 jurisprudence on common law aboriginal title as authoritative sources for his rejection. Nonetheless, in the final analysis, the understanding of aboriginal title put forth in Delgamuukw is an organic development of the earlier common law understanding, with aboriginal cultural difference serving no crucial evidentiary, criterial, or other legal function. Here is the Chief Justice’s own account of how the constitutionalization of aboriginal rights in 1982 affected common law aboriginal title: 1Aboriginal title at common law is protected in its full form by s. 35(1). This conclusion flows from the express language of s. 35(1) itself, which states in full: “[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada
See the Supreme Court of Canada’s decision in R. v. Adams, [1996] 3 S.C.R. 101 at paras. 25-26 [hereinafter Adams]. 33 Delgamuukw at para. 118. 34 Specifically, he invoked Guerin and Canadian Pacific Ltd. v. Paul, [1988] 2 S.C.R. 654.
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are hereby recognized and affirmed” (emphasis added). On a plain reading of the provision, s. 35(1) did not create aboriginal rights; rather, it accorded constitutional status to those rights which were “existing” in 1982. The provision, at the very least, constitutionalized those rights which aboriginal peoples possessed at common law, since those rights existed at the time s. 35(1) came into force. Since aboriginal title was a common law right whose existence was recognized well before 1982 (e.g., Calder, supra), s. 35(1) has constitutionalized it in its full form.35 Nonetheless, the Chief Justice could not resist asserting – although it made no difference to the analysis of aboriginal title – that … the [Van der Peet] requirement that 1the [aboriginal people’s claimed] land be integral to the distinctive culture of the claimants is subsumed by the requirement of occupancy….36 Of course, on the standard uses of the word “subsume” as meaning more or less the same as comprehend or encompass, it is false to say that the occupancy requirement for aboriginal title subsumes the Van der Peet requirement.37 It is only true by virtue of the Court deeming it to be so. The Court’s second and most recent full opportunity to consider an aboriginal title claim in light of Section 35 came in 2005 with the Marshall/Bernard case.38 There the Court never spoke of the Van der Peet test for aboriginal rights or even used the word “integral”.39 As in Delgamuukw, the Court’s approach to aboriginal title in Marshall/Bernard is basically a development of the earlier common law understanding. There was, however, a Van der Peet style gloss on aboriginal title in the Court’s affirmation of the requirement that to prove aboriginal title, an
Delgamuukw at para. 133. Ibid. at para. 142. 37 Resorting to the now old-fashioned language of the philosophy of ideas, we might say that the relevant common law notion of occupancy of the land does not contain the notion of the land’s being integral to the occupant’s distinctive culture. 38 In Marshall/Bernard, the Court rendered a single decision for two cases that had arisen independently of one another. 39 Strikingly, the decision contains fewer than half a dozen references to Van der Peet. I say “strikingly” because Delgamuukw contained nearly forty.
35 36

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aboriginal people must demonstrate that its connection to the land was of “a central significance to its distinctive culture.”40 In Van der Peet, Chief Justice Lamer had summed up the position on aboriginal rights thusly: … in order to be recognized as an aboriginal right, an activity must be of central significance to the culture in question - it must be something which makes that culture what it is.41 Shortly thereafter in its decision in Adams, the Court went on - in remarks incidental to its discussion of the relationship of aboriginal rights and the test introduced in Van der Peet to aboriginal title - to associate this requirement with aboriginal title: In Van der Peet, at para. 43, aboriginal rights were said to be best understood as: ... first, the means by which the Constitution recognizes the fact that prior to the arrival of Europeans in North America the land was already occupied by distinctive aboriginal societies, and as, second, the means by which that prior occupation is reconciled with the assertion of Crown sovereignty over Canadian territory. From this basis the Court went on to hold, at para. 46, that aboriginal rights are identified through the following test: ... in order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right. What this test, along with the conceptual basis which underlies it, indicates, is that while claims to aboriginal title fall within the conceptual framework of aboriginal rights, aboriginal rights do not exist solely where a claim to aboriginal title has been made out. Where an aboriginal group has shown that a particular practice, custom or tradition taking place on the land
40 41

Marshall/Bernard at para. 67. Van der Peet at para. 85 (emphasis added). 20

was integral to the distinctive culture of that group then, even if they have not shown that their occupation and use of the land was sufficient to support a claim of title to the land, they will have demonstrated that they have an aboriginal right to engage in that practice, custom or tradition. The Van der Peet test protects activities which were integral to the distinctive culture of the aboriginal group claiming the right; it does not require that that group satisfy the further hurdle of demonstrating that their connection with the piece of land on which the activity was taking place was of a central significance to their distinctive culture sufficient to make out a claim to aboriginal title to the land. Van der Peet establishes that s. 35 recognizes and affirms the rights of those peoples who occupied North America prior to the arrival of the Europeans; that recognition and affirmation is not limited to those circumstances where an aboriginal group's relationship with the land is of a kind sufficient to establish title to the land.42 In Delgamuukw, the Chief Justice had referred to the foregoing passage from Adams in effort to find a feature of aboriginal title identifying it as a species of aboriginal rights qua cultural rights. Hence, he wrote: … although aboriginal title is a species of aboriginal right recognized and affirmed by s. 35(1), it is distinct from other aboriginal rights because it arises where the connection of a group with a piece of land “was of a central significance to their distinctive culture”….43 Despite these words and the assertion that a connection to the land that was of central significance to an aboriginal group’s distinctive culture is a requirement for aboriginal title, it is, it turns out, a requirement making no imaginable difference so far as proof of tile is concerned. Here are the Chief Justice’s own words: Although this remains a crucial part of the test for aboriginal rights, given the occupancy requirement in the test for aboriginal title, I cannot imagine a situation where this
42 43

Adams at para. 26 (emphasis added). Delgamuukw at para. 137 (emphasis added). The point is repeated at para. 150. 21

requirement would actually serve to limit or preclude a title claim. The requirement exists for rights short of title because it is necessary to distinguish between those practices which were central to the culture of claimants and those which were more incidental. However, in the case of title, it would seem clear that any land that was occupied pre-sovereignty, and which the parties have maintained a substantial connection with since then, is sufficiently important to be of central significance to the culture of the claimants. As a result, I do not think it is necessary to include explicitly this element as part of the test for aboriginal title.44 The above is a tacit admission that neither integrality nor central significance to a distinctive culture is functionally relevant to the law on aboriginal title. It is also evidence that the earlier common law approach to aboriginal rights, at least so far as aboriginal title is concerned, has not been fully displaced. 9. The New Orthodoxy Unraveling a. An Artificial and Unwieldy Test The Supreme Court of Canada’s most recent extended discussion of and elaboration on the Van der Peet conception of aboriginal rights as rights accruing to aboriginal peoples as distinctive cultural groups is found in its 2006 decision in Sappier/Gray.45 The main issue before the Court was whether the 1Maliseet and Mi'kmaq peoples of New Brunswick possess each an aboriginal right to harvest wood for domestic purposes on Crown (that is, State/public) land. The Court held that they do. In its deliberations over whether the Maliseet and Mi’kmaq peoples do possess such a right, the Court was presented with the task of determining, in accordance with the Van der Peet test, whether the activity of harvesting wood for domestic purposes reflected a practice, tradition or custom that was integral to the distinctive cultures of the Maliseet and Mi’kmaq peoples prior to European contact (in their case, around 1500) and
Ibid. at para. 151 (emphasis added). R. v. Sappier; R. v. Gray, [2006] 2 S.C.R. 686 [hereinafter Sappier/Gray]. In this decision, as in Marshall/Bernard, the Court rendered a single decision for two cases that had arisen independently of one another.
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therefore qualified as an aboriginal right. The Court found its task particularly difficult on account of problems concerning the evidence required to prove that a practice, tradition or custom was integral to an aboriginal people’s pre-contact distinctive culture and uncertainty as to what, if any, genuine, non-prejudicial, and legally salient feature of an aboriginal people’s pre-contact existence the term “distinctive culture” refers – all problems connected to the Court’s Van der Peet inheritance. Since it is the trial courts that hear the evidence, appellate courts must make due with the evidence previously presented at trial in making their decisions. The Supreme Court of Canada is Canada’s highest appellate court. In the Sappier/Gray case(s), very little evidence of the Maliseet and Mi’kmaq peoples’ pre-contact wood harvesting practices was presented at trial. Most of the evidence was about the importance of wood in Maliseet and Mi’kmaq cultures generally. The focus of the evidence at trial created a problem for the Supreme Court of Canada in light of the Van der Peet test. The Court succinctly explained the evidentiary problem as follows: 1In order to be an aboriginal right, an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right: R. v. Van der Peet, [1996] 2 S.C.R. 507, at para. 46. The first step is to identify the precise nature of the applicant's claim of having exercised an aboriginal right: Van der Peet, at para. 76. In so doing, a court should consider such factors as the nature of the action which the applicant is claiming was done pursuant to an aboriginal right, the nature of the governmental regulation, statute or action being impugned, and the practice, custom or tradition being relied upon to establish the right: Van der Peet, at para. 53. … The difficulty in the present cases is that the practice relied upon to found the claims as characterized by the respondents was the object of very little evidence at trial. Instead, the respondents led most of their evidence about the importance of wood in Maliseet and Mi'kmaq cultures and the many uses to which it was put. This is unusual because the jurisprudence of this Court establishes the central importance of the actual practice in founding a claim for an aboriginal right. Aboriginal rights are founded upon practices, customs,
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or traditions which were integral to the distinctive pre-contact culture of an aboriginal people. They are not generally founded upon the importance of a particular resource. In fact, an aboriginal right cannot be characterized as a right to a particular resource because to do so would be to treat it as akin to a common law property right. ...46 The most that the evidence established, on the balance of probabilities,47 was “that 1wood was critically important to the Maliseet and the Mi'kmaq peoples pre-contact,”48 that is, that it was critically important to their survival. Taken alone, the evidence established nothing about these peoples’ pre-contact harvesting practices or, a fortiori, the integrality of such practices to their pre-contact cultures. Nonetheless, the Court proceeded to assume an underlying wood harvesting practice and then to infer that the Maliseet and Mi’kmaq peoples engaged in the practice of harvesting wood primarily for the sake of survival and secondarily for domestic use.49 Its justification for making this assumption and inference, which was treating the Van der Peet analysis, it admitted, flexibly, was that it was necessary in order to stay true to the object of the analysis: Flexibility is important when engaging in the Van der Peet analysis because the object is to provide cultural security and continuity for the particular aboriginal society. This object gives context to the analysis. For this reason, courts must be prepared to draw necessary inferences about the existence and integrality of a practice when direct evidence is not available.50 The Court offered no guidance to help trial courts determine when, in the face of evidence insufficient to satisfy the Van der Peet test, they should “apply” the test flexibly in order to meet the object of the analysis.
Ibid. at paras. 20-21 (emphasis added). The term “balance of probabilities” refers to a “standard of proof” that must be met in order to establish a claim in court. It is sometimes called the “civil standard” to distinguish the standard of proof most often associated with civil action (e.g. breach of contract) from the standard of proof beyond a reasonable doubt closely associated with criminal law. 48 Sappier/Gray at para. 28. 49 Ibid. at para. 33. 50 Ibid. at para. 33.
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The Court’s other Van der Peet related problem concerned the reference of the term “distinctive culture”. Aside from the issue of what function the adjective “distinctive” is to serve – which I will come to presently -, lower courts have found the concept of culture an elusive one.51 Moreover, since no precisely equivalent concept exists in the languages of Canada’s indigenous peoples, “the concept of culture is itself,” the Court had to admit, “inherently cultural.”52 In consequence of the latter, although the Court did not go on to say it, there is seldom, if ever, anything in precontact aboriginal reality that is precisely articulated by the courts’ use of the word “culture”.53 It is at least partly because of the inadequacy of the word to aboriginal reality that the judiciary has found the concept elusive. Despite these fundamental problems, the Court in Sappier/Grey was not prepared to walk completely away from the Van der Peet test and its requirement that aboriginal rights must trace their origins to a practice, tradition or custom that was integral to a pre-contact, distinctive aboriginal culture. Thus, it was compelled to return to what it saw as the earlier Court’s basic rationale for introducing the notion of a distinctive culture into Canadian aboriginal rights jurisprudence, writing: 1This brings us to the question of what is meant by "distinctive culture". As previously explained, this Court in Van der Peet set out to interpret s. 35 of the Constitution in a way which captures both the aboriginal and the rights in aboriginal rights. Lamer C.J. spoke of the "necessary specificity which comes from granting special constitutional protection to one part of Canadian society" (para. 20). It is that aboriginal specificity which the notion of a "distinctive culture" seeks to capture.54 But because subsequent academic criticism had convincingly identified serious flaws stemming from Van der Peet and the majority’s focus on
Ibid. at para. 44. Ibid. 53 My choice of the word “articulated” is meant to resonate the Platonic ideal of language and thought as carving things at their natural joints (διατέμνειν κατ’ ἄρθρα ᾗ πέφυκεν). See, e.g., Plato’s Phaedrus 265e 1-3. As an aside, although apropos, I would add that even socially constructed reality has its “natural” joints that may or may not be well articulated in speech and thought. 54 Sappier/Gray at para. 42.
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aboriginal difference, the Court in Sappier/Grey felt obliged to expressly affirm, in agreement with the academic critics, that "Aboriginality means more than interesting cultural practices and anthropological curiosities worthy only of a museum"....55 The Court then observed that the academic critiques echoed concerns expressed by the two Supreme Court justices who had written their own separate opinions dissenting from the majority in Van der Peet, namely Madame Justice (now Chief Justice) McLachlin and Madame Justice L'Heureux-Dubé J. The Court found particularly trenchant Madame Justice L'Heureux-Dubé’s concern that "[t]he [majority’s] approach based on aboriginal practices, traditions and customs considers only discrete parts of aboriginal culture, separating them from the general culture in which they are rooted"….56 With these criticisms and concerns in view, the Court in Sappier/Grey took a step back from the Van der Peet majority’s emphasis on “aboriginality” and thus a step closer to the Court’s earlier common law focus on “prior occupation”. Hence, it wrote: 1The aboriginal rights doctrine, which has been constitutionalized by s. 35, arises from the simple fact of prior occupation of the lands now forming Canada. The "integral to a distinctive culture" test must necessarily be understood in this context. As L'Heureux-Dubé J. explained in dissent in Van der Peet, “[t]he ‘distinctive aboriginal culture’ must be taken to refer to the reality that, despite British sovereignty, aboriginal people were the original organized society occupying and using Canadian lands….”57 But despite the acknowledged problems with the Van der Peet analysis, including the risk of “racialized stereotypes of Aboriginal peoples,”58 the Court was unwilling to return the full way to its pre-Van der Peet position. And so, the Court directed, the focus of aboriginal rights analyses was not to be, as it has said, on “the simple fact of [the] prior occupation [by
Ibid. (citations to academic critiques omitted). Ibid. at para. 43. For Madame Justice L'Heureux-Dubé’s comment in context, see Van der Peet at para. 150. 57 Ibid. at para. 45 58 Ibid.
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indigenous peoples] of the lands now forming Canada” but rather on the distinctive nature of their prior occupation or pre-contact way of life: The focus of the Court should therefore be on the nature of this prior occupation. What is meant by "culture" is really an inquiry into the pre-contact way of life of a particular aboriginal community, including their means of survival, their socialization methods, their legal systems, and, potentially, their trading habits.59 Although the Court in Sappier/Grey could not bring itself to abandon the Van der Peet analysis completely for the earlier legal tradition regarding aboriginal rights, maintaining the façade of Van der Peet required it to adopt a more flexible but consequently less principled approach to the Van der Peet analysis in the face of otherwise inadequate evidence, to reinterpret the analysis in light of the dissent in Van der Peet, and to shift some of the focus back to prior occupancy and thus impliedly to Canada’s prior occupants as peoples. b. Supplanting or Supplementing? In one recent case, namely, Mitchell, the Supreme Court of Canada has characterized the Van der Peet approach to aboriginal rights as supplementing rather than supplanting the earlier common law approach The basic issue in Mitchell was “whether the Mohawks of Akwesasne, Quebec have the right to bring goods into Canada from the United States for collective use and trade with other First Nations without paying customs duties.”60 Although the full Court agreed in the result – that is, that the Mohawks had failed to prove such an aboriginal right -, two of the seven justices delivered their own joint opinion differing from the majority on the reasoning in support of the result. Writing for the majority, Chief Justice McLachlin stated the conclusion and a summary of the majority’s reasoning thus: I conclude that the aboriginal right claimed has not been established. The sparse and tenuous evidence advanced in this
59 60

Ibid. Mitchell at para. 1. 27

case to prove the existence of pre-contact Mohawk trading north of the Canada-United States boundary simply cannot support the claimed right. Even if deference is paid to the trial judge on this finding, any such trade was clearly incidental, and not integral, to the Mohawk culture. As a result, Chief Mitchell must pay duty on the goods he imported to Canada.61 Unlike the majority in the Sappier/Grey decision five years later, the majority in Mitchell did not entertain a flexible approach to the Van der Peet analysis to make up for the inadequate evidence. In Mitchell, it insisted that the generous approach to the evidence sometimes mandated in aboriginal rights cases “… should not be should not be confused with a vague sense of after-the-fact largesse.”62 Alluding to the doctrine of continuity, the Chief Justice explained both how it was that aboriginal rights acquired their existence under English law as well as the conditions under which they continued to exist as part of the common law prior the Constitution Act, 1982:63 1Long before Europeans explored and settled North America, aboriginal peoples were occupying and using most of this vast expanse of land in organized, distinctive societies with their own social and political structures. The part of North America we now call Canada was first settled by the French and the British who, from the first days of exploration, claimed sovereignty over the land on behalf of their nations. English law, which ultimately came to govern aboriginal rights, accepted that the aboriginal peoples possessed pre-existing laws and interests, and recognized their continuance in the
Ibid. at para. 3. Ibid. at para. 39. It should be noted that the Court’s finding of an aboriginal right to harvest wood for domestic purposes in the Sappier/Grey case carried no commercial economic consequences. Van der Peet was the Court’s first but by no means last opportunity to consider and reject a claim for an aboriginal right of a commercial nature. Not without some justification, many are convinced that the courts - encouraged by the Supreme Court of Canada’s decision in Van der Peet – have tacitly adopted the default position that commerce and aboriginality are mutually exclusive. 63 The issue of a right’s existence is central to contemporary aboriginal rights jurisprudence because Section 35 protects only existing aboriginal and treaty rights, that is, only rights that had not ceased to exist before 1982.
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absence of extinguishment, by cession, conquest, or legislation.... Accordingly, European settlement did not terminate the interests of aboriginal peoples arising from their historical occupation and use of the land. To the contrary, aboriginal interests and customary laws were presumed to survive the assertion of sovereignty, and were absorbed into the common law as rights, unless (1) they were incompatible with the Crown's assertion of sovereignty, (2) they were surrendered voluntarily via the treaty process, or (3) the government extinguished them….64 Giving a retrospective Van der Peet spin to her foregoing summary, she then added: “Barring one of these exceptions, the practices, customs and traditions that defined the various aboriginal societies as distinctive cultures continued as part of the law of Canada.”65 Mister Justice Binnie delivered the opinion on behalf of Mister Justice Major and himself that concurred with the majority in the result but differed in the reasoning. Without criticizing the majority’s application of the Van der Peet integral-to-a-distinctive-culture test to the Mohawk claim, he recognized that the test’s application failed to sound the depths of the Mohawk’s argument. “The root of their argument was, he wrote, that the Mohawks of Akwesasne acquired under the legal regimes of 18th century North America, a positive legal right as a group to continue to come and go across any subsequent international border dividing their traditional homelands with whatever goods they wished, just as they had in pre-contact times. In other words, Mohawk autonomy in this respect was continued but not as a mere custom or practice. It emerged in the new European-based constitutional order as a legal trading and mobility right. By s. 35(1) of the Constitution Act, 1982, it became a constitutionally protected right.66

Marshall at paras. 9-10 (emphasis added). Ibid. at para. 10. 66 Ibid. at para. 148 (emphasis added).
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Because their autonomy had, the Mohawks argued, continued as a positive legal right under the legal regimes of 18th century North America but not as a mere custom or practice, the majority’s application of the Van der Peet analysis was, Justice Binnie implied, inapt for giving their claimed right – a right that may have been an existing aboriginal right when the Constitution Act, 1982 came into force - its full and proper constitutional space. Although he acknowledged that “[c]are must be taken not to carry forward doctrines of British colonial law into the interpretation of s. 35(1) without careful reflection,”67 he also affirmed that …the language of s. 35(1) cannot be construed as a wholesale repudiation of the common law. The subject matter of the constitutional provision is “existing” aboriginal and treaty rights and they are said to be “recognized and affirmed” not wholly cut loose from either their legal or their historical origins.68 British colonial law supplies one of the legal/historical origins from which, in Justice Binnie’s view, aboriginal rights must not be wholly cut loose. Thus, the recognition promised by Section 35 is not limited to aboriginal rights expressing practices integral to distinctive pre-contact aboriginal societies. Nor is its recognition extended – with no support for doing so coming from the Van der Peet test – to a small assortment of aboriginal rights, such as aboriginal title, previously acknowledged by the common law prior to 1982. The better view, on Justice Binnie’s analysis, is that the courts, in Van der Peet and other cases, … have extended recognition beyond pre-existing “rights” to practices, customs or traditions integral to the aboriginal community’s distinctive culture.69 In other words, the Van der Peet analysis supplements – and perhaps even corrects - the traditional approach to aboriginal rights but it does not wholly supplant it.70
Ibid. at para.149. Ibid. at para. 150. 69 Ibid. at para. 143. 70 It is worth noting that in his written reasons, Justice Binnie refers three times to then Justice – now Chief Justice - McLachlin’s dissent in Van der Peet to buttress his claims.
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It remains to be seen whether courts will adopt Justice Binnie’s position (or something like it) in appropriate cases. The fact that he was writing against – albeit writing subtly against - the majority, which included Chief Justice McLachlin, weighs against it. But if nothing else, the fact that two Supreme Court of Canada justices, Justices Binnie and Major, were willing to invoke the earlier legal tradition on aboriginal rights is further evidence that the tradition still survives. 10. Advancing the Rights of Aboriginal Peoples qua Peoples Despite the limitations imposed by the Van der Peet test, it is possible in some cases, working within its confines, to engage Section 35’s promise so that it lends its protection to aboriginal peoples as peoples and not merely as distinctive cultural groups. Doing so requires litigating their claims as peoples entitled to govern themselves and their territories according to their own political institutions and laws under the rubric of aboriginal rights as cultural rights. In 2008, our firm, Peter Grant and Associates, had the privilege of representing the Gitanyow Hereditary Chiefs in a proceeding before the Supreme Court of British Columbia. The dispute that gave rise to 1Wii'litswx v. British Columbia (Minister of Forests)71 began when the Provincial Minister of Forests decided, over Gitanyow’s objections, to replace six already existing forest licence agreements with six new forest licence agreements. The six forest licences are located (wholly or partly) within Gitanyow’s ancestral territory in north-central British Columbia.72 The Gitanyow Hereditary Chiefs went to court to challenge the Minister’s decision, basically, for unconstitutionally promoting the Provincial and corporate revenue/commercial interests in the forests in Gitanyow territory at the expense of Gitanyow’s aboriginal rights and title and without any real benefit to the Gitanyow people.
See his remarks in Marshall at paras. 114, 141, & 143. 71 2008 BCSC 1139 [hereinafter Wii’litswx]/ 72 British Columbia’s forest licences are agreements created and structured pursuant to Provincial forestry legislation. These agreements give licencees timber harvesting rights on Provincial Crown lands for a set period of time (usually 15 years). The imposition of colonial/provincial forestry regimes on First Nations peoples in British Columbia began in the 1860s on Vancouver Island. These regimes have all been imposed on First Nations without their consent or even an attempt to obtain their consent. 31

The Gitanyow Hereditary Chiefs felt particularly provoked by the Province’s adamant refusal, first, to recognize the Gitanyow system of governance and law and, then, to accept its legal and practical implications for the tandem of Provincial management and corporate exploitation of the forests within Gitanyow ancestral territory. The Gitanyow govern themselves and their traditional territory (approximately 10,460 sq. km) through their Wilp system. In her reasons for judgment in Wii’litsxw, summarizing the evidence regarding the Gitanyow Wilp system and the role of the Gitanyow Hereditary Chiefs, Madame Justice Neilson wrote: 1Gitanyow provided this historical background, which was not challenged by the Crown. 1Gitanyow is organized into eight matrilineal units, collectively called the Huwilp, and individually called Wilps, or Houses. Each Wilp has its own territory, and these collectively form Gitanyow traditional territory. The Huwilp are the social, political, and governing units of Gitanyow. They hold and exercise rights and title to the Gitanyow traditional territory on behalf of the Gitanyow people. Every Gitanyow person belongs to a Wilp. By virtue of this membership, each person has rights to the territory and resources owned by his or her Wilp, under the direction of the Hereditary Chiefs of each Wilp. Each Wilp is identified in part by a unique Ayuuk, or crest, and Getimgan, or totem poles. These crests and totem poles demonstrate each Wilp’s relationship to its territories. Each Wilp has a Hereditary Chief, who holds daxgyet, or power and authority of the Wilp, over its territories. The Hereditary Chiefs traditionally exercised their daxgyet through the management of their Wilp’s lands and resources, and demonstrated their power and authority in feasting, gift-giving, and maintenance of their crests through the raising of totem poles.73 Madame Justice Neilson then summarized the problems that the Gitanyow people were facing as follows:
73

Wii’litswx at paras. 21-22. 32

1The Crown, through the MoF [Ministry of Forests] and its predecessors, has permitted logging on Gitanyow traditional territory for many years under varying regimes. Gitanyow’s rights to the timber resources on its traditional territory has been a longstanding source of contention between the parties. The precise amount of timber that has been removed from the areas covered by Gitanyow traditional territory is disputed. Nevertheless, there is no question that substantial logging and road building have occurred on those lands, and that these activities have had a significant impact on the sustainability of timber resources, and on other aspects of Gitanyow tradition and culture. A Landscape Unit Plan developed for Gitanyow traditional territory in 2005 described this: In the past several decades, clearcut timber harvesting operations have impacted much of Gitanyow lands, resulting in a loss of numerous traditional use sites, damaging or altering many areas where traditional uses were conducted, and converting structurally diverse mature and old growth forests to structurally simple young forests. As a result of the conversion from mature and old growth forests to young growth forest, large areas of habitats required to support plants, birds, fish, animals that Gitanyow Huwilp members traditionally used for sustenance and cultural purposes have been lost to Gitanyow use for many decades into the future. Therefore, on those lands, the traditional use can no longer be conducted. Gitanyow Huwilp members are concerned that timber harvesting will continue to alter the forest and stream habitats, thereby changing forest conditions required to produce the plants, animals, birds, and fish that are necessary for Gitanyow traditional uses. Logging activity has impacted other aspects of Gitanyow culture as well. It has destroyed the Wilp cabins [which Wilp members and other Gitanyow persons (with permission) used to
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access lands and resources]. Removal of resources has prevented the Hereditary Chiefs from carrying out their duties under Gitanyow Ayookxw, or law, to manage their Wilp territories and resources to ensure future sustainability. As well, they have been unable to draw on these resources to maintain their Wilp culture and traditional activities, and instead must use personal funds for these purposes. Gitanyow say that this has caused not only financial hardship, but pain and shame among its people.74 Fully aware that the Court would examine their claim to an aboriginal right of governance in connection with their Wilp system through the Van der Peet lens, Gitanyow presented considerable evidence to the Court, and argued accordingly, that the Wilp system was integral to Gitanyow culture prior to European contact in the early 19th century and remains so today. Based upon the strength of their claim to the aforesaid aboriginal right, Gitanyow further argued that the Province had a constitutional duty to recognize the Gitanyow Wilp system and give effect to its recognition in its dealings with Gitanyow in regard to the forests within Gitanyow territory. In her reasons, Madame Justice Neilson found that Gitanyow possessed a strong case for an aboriginal right or rights in regard to the Wilp system. She wrote: 1I am satisfied on the material before me that the Wilp are an integral and defining feature of Gitanyow’s society. As such, the Wilp system and the related aboriginal rights attract the protection of s. 35 of the Constitution Act….75 Based on this finding, she further found that the Province was under a constitutional duty to recognize Gitanyow’s Wilp system and give meaningful effect to its recognition in its dealings with the Gitanyow and the forests with Gitanyow territory. She went on to criticize the Crown’s conduct as follows:
Ibid. at paras. 25-26. Ibid. at para. 222. By her addition of the phrase “related aboriginal rights”, she meant to include, among other things, a Gitanyow right to govern, manage, and exercise stewardship over Gitanyow territory in accordance with the Gitanyow Ayookxw (law).
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1The clearest example of [its failure to respect Gitanyow’s rights and take its corresponding duties seriously] … lies in the [Provincial] Crown’s failure to recognize that the honour of the Crown and s. 35 of the Constitution Act imposed a constitutional duty to meaningfully consult and reach accommodation with respect to the recognition of the Wilps and Wilp boundaries in the strategic decision to replace the [six] FLs [Forest Licences]. Dismissing such recognition as impractical, without discussion or explanation, fell well below the Crown’s obligation to recognize and acknowledge the distinctive features of Gitanyow’s aboriginal society, and reconcile those with Crown sovereignty.76 Wii’litswx is the first case in Canada in which a court has affirmed an aboriginal people’s claim to governance rights over its ancestral territory.77 It has to be noted, however, that the Court did not affirm a claim to governance rights simpliciter, that is, a governance right accruing to an aboriginal people as a people who were already governing themselves and their territory prior to the arrival of Europeans. What it affirmed was a claim to an aboriginal right reflecting a specific governance system that manifestly was (and remains) integral to Gitanyow’s distinctive way of life. It remains to be seen how many other indigenous peoples in British Columbia and elsewhere in Canada will be able under the Van der Peet regime to repeat and/or build on Gitanyow’s success.78 11. Final Reflections79
Ibid. at para. 247. I emphasize the word “claim” because Madame Justice Neilson could not find or grant an order declaring that Gitanyow had a proven aboriginal right. Simplifying somewhat, this is because the Wii’litswx case proceeded by way of judicial review and judicial review proceedings, unlike trial proceedings, must rely largely on “un-tried” affidavit rather than “tried” viva voce evidence. As of yet, no aboriginal people has succeeded in proving an aboriginal right of governance at trial. 78 Because the Province declined to appeal Madame Justice Neilson’s decision, her findings on Gitanyow’s claims and the Crown’s corresponding duties stand. 79 These final reflections - and therefore I - profited greatly from the contributions of and discussions with the seminar speakers and attendees. Although it would not be appropriate in a footnote to delve into specifics, I want to acknowledge my debts of challenge and enlightenment to my fellow participants: Jeremy Kinsman (who, along with his many accomplishments, was Canadian Ambassador to the European Union [2002-2006]), and Professors Francisco Colom González, Jorge Lazarte, Jessé Souza, and
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Canada, like many nations, has, except for a century and a half hiatus, long struggled with the question of what, if any, space indigenous peoples should occupy within the prevailing political and legal regime. Thus, Canada’s more recent struggle with the question of what constitutional space they should occupy by virtue of Section 35 of the Constitution Act, 1982 is not a struggle with a new question differing in kind from the previous but rather a struggle with a new variation of an old, albeit now less familiar, question. Until 1982, the question was answered generally by saying that indigenous peoples could occupy as much space within the prevailing political and legal regime as was compatible with Crown sovereignty. In consequence, the more expansive the notion of Crown sovereignty, the less space available.80 For much of its 19th and 20th century history, Canada tended to look upon indigenous peoples as groups to be gradually but inevitably assimilated into mainstream Canadian society.81 Consequently, over this period of time, Canada took the stance that any space occupied by indigenous peoples within the prevailing political and legal regime was only temporary. Over this period of time, there was no struggle with the question of what, if any, space, indigenous peoples should occupy within the prevailing political and legal regime. Canada had firmly settled on the answer, “None”. It was the Supreme Court of Canada’s decision in the Calder case in 1970, affirming the common law’s ability to recognize aboriginal title, that forced Canada to reconsider the question.
Claudio Lomnitz. To the latter Professors, I wish to add my appreciation for so generously, tirelessly, and convivially carrying on - what became - our two and one-half day symposium, not only within the seminar room but also beyond, in the splendid streets and restaurants of Zaragosa. 80 In Mitchell, at para. 151, Justice Binnie observed: Prior to Calder, supra, “sovereign incompatibility” was given excessive scope. The assertion of sovereign authority was confused with doctrines of feudal title to deny aboriginal peoples any interest at all in their traditional lands or even in activities related to the use of those lands. 81 The tendency reached its acme in 1969 with the federal government’s Statement of the Government of Canada on Indian Policy, Northern Development. Ottawa (i.e. “the White Paper”). Otherwise hard to find, the document is available on the website of Indian and Northern Affairs Canada at < http://www.ainc-inac.gc.ca/ai/arp/ls/pubs/cp1969/cp1969eng.pdf >. 36

Clearly, for much of its 19th and 20th century history, Canada considered it contrary to its national aspirations to pursue political and legal avenues for protecting and preserving indigenous cultural or any other difference. But even prior to this period, Canada (including its French and British colonial predecessors), not only did not but could not have viewed its legal or moral obligations chiefly, if at all, in terms of protecting and preserving indigenous cultural difference. Under British Imperial/common law, the prior sovereignties, occupants, and owners of the land acquired certain legal rights at the Crown’s assumption of sovereignty. That indigenous peoples might enjoy rights under this regime differing from the rights of, say, English colonists in one of Britain’s North American colonies was due primarily to the fact that they were non-British nations or peoples, not to the fact that they were indigenous peoples. In the beginning, and for sometime thereafter, the former difference was the only difference that legally counted. Allowing for the fact that Britain’s imposition of sovereignty did not allow for anything incompatible with its sovereignty, there was considerable potential space within the prevailing political and legal regime for indigenous political institutions and laws and thus for political and legal pluralism. Of course, in the subsequent history of Canada, some, like the French in Quebec, were permitted to occupy considerable political and legal space within Canada, while others, namely, indigenous peoples, were refused. The development of political and legal pluralism within Canada has been largely a derivatively European affair. The normative conflicts that did arise were ones familiar to the European powers and manageable under doctrines such as the doctrine of sovereign succession and the doctrine of continuity. Of course, the fact that the French in Quebec but not indigenous peoples were permitted to occupy significant space within the prevailing political and legal regime was due to the workings of ignorance, bigotry and discrimination. At the roots this ignorance, bigotry and discrimination was a colonialist and therefore self-serving belief that indigenous peoples did not share the status of peoples with British and other European peoples. Justifying why they did not share this status required finding a difference that made the difference. Some said it was their religion or lack thereof, some said it was a propensity for war or savagery, others said that they

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simply lacked the social organization required to constitute them as a people.82 But times have changed. Where Canada once looked for aboriginal difference only to justify its discrimination against aboriginal peoples, it now looks to aboriginal difference to support its multiculturalist self-image and aspirations. But one thing has not changed. As I hope my main discussion has shown, Canada’s focus on aboriginal difference has the consequence, whether still intended or not, that aboriginal peoples are denied their full and rightful place as peoples within the prevailing political and legal regime. Despite the expectations and hopes of many, the constitutionalization of aboriginal rights did not change this. The reason it did not is traceable to the Supreme Court of Canada’s fateful decision in Van der Peet. There the Court viewed Section 35’s promise of rights recognition as aimed directly at aboriginal difference and only indirectly at aboriginal peoples.
In its decision in Calder in 1970, the Supreme Court of Canada expressly distanced itself from such notions, saying: The assessment and interpretation of the historical documents and enactments tendered in evidence must be approached in the light of present-day research and knowledge disregarding ancient concepts formulated when understanding of the customs and culture of our original people was rudimentary and incomplete and when they were thought to be wholly without cohesion, laws or culture, in effect a subhuman species. This concept of the original inhabitants of America led Chief Justice Marshall in his otherwise enlightened judgment in Johnson v. McIntosh [(1823), 8 Wheaton 543,21 U.S. 240], which is the outstanding judicial pronouncement on the subject of Indian rights to say, "But the tribes of Indians inhabiting this country were fierce savages whose occupation was war ...". We now know that that assessment was ill-founded. The Indians did in fact at times engage in some tribal wars but war was not their vocation and it can be said that their preoccupation with war pales into insignificance when compared to the religious and dynastic wars of "civilized" Europe of the 16th and 17th centuries. Marshall was, of course, speaking with the knowledge available to him in 1823. Despite these strong words of disavowal, courts continue to require aboriginal people who claim aboriginal rights to prove that their ancestors formed “an organized society”. For a recent example, see the British Columbia Supreme Court decision in Lax Kw'alaams Indian Band v. Canada (Attorney General), 2008 BCSC 447 at paras. 124ff. For a brief but perceptive - one might even say withering - judicial critique of this “practice”, see the British Columbia Supreme Court decision in Tsilhqot'in Nation v. British Columbia, 2007 BCSC 1700 at paras. 451-454.
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By interpreting Section 35’s promise of rights recognition as focused on aboriginal difference and, more particularly, on aboriginal cultural difference, the Court has largely succeeded in narrowing the constitutional space that would otherwise have been available to indigenous peoples. Moreover, the small space left to be filled only minimally trenches upon the far larger space previously structured and filled by the dominant society. By denying aboriginal rights that protect commonalities that aboriginal peoples share with other peoples, such as rights of governance, without need to resort to differences, Canada is asking indigenous peoples to adjust to a surface identity. Not much differently than Canadians of Scottish ancestry who occasionally don kilts and recite the poetry of Robbie Burns but who rely in no vital way on Scottish political and legal institutions,83 the indigenous peoples of Canada are expected to maintain their culture without reliance on indigenous political and legal institutions. In effect, by withholding protection from indigenous peoples’ political and legal institutions, Canada is trying to graft aboriginal culture onto the state’s political and legal institutions.84 If it is Canada’s genuine purpose to have its indigenous peoples restore, enhance, and project their cultures into the future, then its Supreme Court, in its Van der Peet decision, has set a course that is undermining its purpose. By pressing for the uprooting of indigenous culture from indigenous political and legal institutions (which have themselves been largely uprooted from indigenous territories), the Court is making it difficult to impossible for indigenous peoples pass on anything more than simulacra of their cultures to future generations. It is an oft-expressed worry of those concerned about maintaining sufficient unity to allow the state to function peacefully and efficiently for the good of all, that rights devoted to protecting indigenous peoples as peoples entitled to govern themselves and their territories through their own

I intend no disrespect by my example. In fact, my choice of example was dictated by the fact that my Ross family traces its origins to Scotland. 84 If one subscribes to a version of the theory presented in Plato’s Republic that the psyche or soul internalizes the surrounding political ordering and culture it grows up with, one can begin to grasp the enormous harm – perhaps, in light of the legacy of Residential Schools in Canada, one should speak of the even more enormous harm – that would be visited upon indigenous persons were Canada’s “graft” to succeed.
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political institutions and laws would be inimical to the state, its requisite unity, and the common good. Let me begin to respond to this worry first by saying that I shall assume that by “the state” we are talking about a liberal/democratic state. I shall also assume that we are talking about a state that places value on a measure of pluralism, including but not necessarily limited to cultural pluralism. For such a state, the challenge of maintaining a relatively wellfunctioning, liberal, democratic, pluralistic society is real and unavoidable. In short, for such a state, the question is not whether it will be pluralist but rather how pluralist. But surely those who constitute the plurality should have some say. After all, we are assuming a free and democratic state. Accordingly, if the groups who compose the plurality are committed to the state, recognize the need for unity, and are willing to share in and promote the common good, then there is no reason why the plurality cannot run deep. In the case of Canada, the vast majority of indigenous peoples is committed to the state, recognizes the need for unity, and is willing to share in and promote the common good. In these circumstances, it is inconsistent with Canada’s overall liberal, democratic, and pluralist ethos to remain hesitant to recognize the rights of indigenous peoples to govern themselves and their territories through their own political institutions and laws.85

It must be said that Canada’s hesitancy owes much to what it believes are the economic ramifications of such recognition, especially for the Province of British Columbia. It was with such considerations in mind that a former justice of the British Columbia Court of Appeal once remarked: If my colleagues [on the Court of Appeal] are right [that the Province’s duties under Section 35 must add to its administrative burdens], British Columbia, which was once described as the spoilt child of Confederation, is about to become the downtrodden stepchild of Confederation. The remark is found in Halfway River First Nation v. British Columbia (Ministry of Forests), [1999] 4 C.N.L.R. 1 at para. 232. As it turns out, the views of colleagues alluded to in the above remark have been generally confirmed in subsequent jurisprudence, including Supreme Court of Canada jurisprudence (e.g. Haida Nation, supra.) Nonetheless, the increased administrative burden needed to show a modicum of respect for the aboriginal rights of the Province’s First Nations has not turned British Columbia into “the downtrodden stepchild of Confederation.”
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I wish to conclude with a final reflection on the Supreme Court of Canada’s focus on aboriginal culture. It cannot but appear – especially from the indigenous perspective - as anything other than judicial hubris for the Court to take upon itself the role of “protector” of indigenous cultures. It is for indigenous peoples alone to protect their cultures and as they best see fit. What they need from Canada and its courts is the recognition of rights that protect them as peoples governing themselves and their territories through their own institutions and laws. With such rights recognized, indigenous peoples will look after their cultures themselves.

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