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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

1
Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
2
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

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.

2
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.

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Those in the Court responsible for these efforts never acknowledged their departure
from the earlier tradition in their reasons for judgment.

3
(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

6
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.

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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

9
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
13
R. v. Kruger, [1978] 1 S.C.R. 104.
14
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

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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.

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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
20
Sparrow at para. 64.

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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 pre-
existing 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.

21
Van der Peet at para. 24 (citations omitted).

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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 pre-
existence 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:

22
Van der Peet at paras. 29-31 (emphasis added).
23
[1973] S.C.R. 313.

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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:

24
Van der Peet at para. 33.
25
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.
26
Ibid. at para. 43 (emphasis added).
27
Ibid. at para. 44 (emphasis added).

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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

28
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 non-
aboriginal 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 State-
indigenous 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.

29
Ibid. at para. 154.
30
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.

16
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
32
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.

18
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
35
Delgamuukw at para. 133.
36
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.

19
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
Marshall/Bernard at para. 67.
41
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
Adams at para. 26 (emphasis added).
43
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).
44

45
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.

22
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,

23
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.
46
Ibid. at paras. 20-21 (emphasis added).
47
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.

24
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 pre-
contact 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
51
Ibid. at para. 44.
52
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.

25
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
55
Ibid. (citations to academic critiques omitted).
56
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.

26
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
Ibid.
60
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

61
Ibid. at para. 3.
62
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.

28
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

64
Marshall at paras. 9-10 (emphasis added).
65
Ibid. at para. 10.
66
Ibid. at para. 148 (emphasis added).

29
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
67
Ibid. at para.149.
68
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.

30
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

33
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:

74
Ibid. at paras. 25-26.
75
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).

34
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


76
Ibid. at para. 247.
77
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

35
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/cp1969-
eng.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

37
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.

82
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.

38
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

83
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.

39
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 well-
functioning, 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

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.”

40
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.

41