Creating Constitutional Space for Indigenous Peoples: Canada's Ambivalence

8/8/2019 Creating Constitutional Space for Indigenous Peoples: Canada's Ambivalence

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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, holdingonto 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] 2S.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’sentrenched political, legal, and economic interests developed in, and remain dependent

on, disregard of aboriginal peoples and their rights. In Canadian aboriginal rights

jurisprudence, British Columbia is the tail that wags the dog.

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The fact that the earlier legal tradition described above still survives,

despite the Supreme Court of Canada’s veiled efforts to the contrary,5

creates considerable and, I would add, increasing tension in the Canadian

jurisprudence on aboriginal rights. This tension reflects a deeper contest, if

you will, between indigenous and non-indigenous peoples for constitutional

space within modern Canada.

b. Where I Live and Work

I live and work in Vancouver, British Columbia, Canada. I am an

Associate Lawyer with the law firm, Peter Grant and Associates. We

represent indigenous people, including indigenous governments,

exclusively. I practice mainly in the area of constitutional law.

Canada is a federal state. It has 10 provinces and 3 territories.

Bordering the Pacific Ocean, British Columbia is the western-most province.

British Columbia’s land area (944,735 sq. km) is almost twice the size of

Spain’s (504,782 sq. km). Its population (around 4.2 million) is less than

1/10th of Spain’s (around 46 million). This past year, 2008, marks the 150th

year since British Columbia’s founding as a British Colony.

2. Section 35 of Constitution Act, 1982

The Constitution Act, 1982 initiated a new era in the history of

Canada’s constitution and thus a new era in the history of Canada itself.

Section 35 of the 1982 Act signaled Canada’s commitment to building a new

relationship with its indigenous peoples who, within Canada, are usually

denominated aboriginal peoples. Section 35 says:

35 (1) The existing aboriginal and treaty rights of the

aboriginal peoples of Canada are hereby recognized and

affirmed.

(2) In this Act, “aboriginal peoples of Canada” includes

the Indian, Inuit and Métis peoples of Canada.

5 Those in the Court responsible for these efforts never acknowledged their departure

from the earlier tradition in their reasons for judgment.

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(3) For greater certainty, in subsection (1) “treaty rights”

includes rights that now exist by way of land claims

agreements or may be so acquired.

(4) Notwithstanding any other provision of this Act, the

aboriginal and treaty rights referred to in subsection (1)

are guaranteed equally to male and female persons.

I would like to draw attention to and elaborate on a few things in this

text before proceeding to my main discussion.

First, Section 35(2) says that the aboriginal peoples whose rights are

protected by Section 35(1) include the Indian, Inuit and Métis peoples of

Canada. Unlike many in the United States who still call themselves Indians

or American Indians, Indian peoples in Canada tend to prefer to speak of themselves as “First Nations”. First Nations peoples live in nearly every

region of Canada except the far north, where the Inuit live. The origin of the

Métis is found in the early stages of the fur trade in Canada. First French,

and then Scottish, English and other European-descended male fur traders

took up with First Nations (or sometimes Inuit) women, remained in the

country, and raised families. In some places, most notably in Manitoba,

communities with distinctive cultures arose, neither First Nations nor French

nor Scottish, et cetera.

Second, the rights protected by Section 35 are of two kinds: aboriginal

and treaty rights. Stated simply, aboriginal rights are rights arising from

aboriginal peoples’ prior occupation of Canada – that is, prior to European

contact,6 the Crown’s assertion of sovereignty,7 or the Crown’s effective

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 speakingof 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 isto 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 thetreatment 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 Vander Peet at para. 270:

The assertion of British sovereignty was … expressly recognized as notdepriving 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’sseparate 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 theUnited 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 itsinhabitants 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 themselvesthat 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 discoverygave title to the government by whose subjects or by whose authority it

was made against all other European governments, which title might beconsummated 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 noEuropeans 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 beingexclusive, 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 necessarilyto 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 tocomplete 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 discoverygave 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 singleexception 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 mereeight 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 encompassthe 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 distinctivenessof 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 theorigins 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).

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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 arisefrom 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 thatsociety; 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 themajority 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 nowtreated 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. 53when 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 specialemphasis 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 Delgamuukwis 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 existingaboriginal 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’sclaimed] 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 saythat 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 arisenindependently 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, thataboriginal 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 anaboriginal 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

44 Ibid. at para. 151 (emphasis added).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 woodharvesting 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” todistinguish 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 itsrequirement 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 evensocially 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/Greytook 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. 4558 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 theanalysis 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 theconclusion 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 toharvest 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 andtraditions 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









1The Crown, through the MoF [Ministry of Forests] and

its predecessors, has permitted logging on Gitanyow traditional

territory for many years under varying regimes. Gitanyow’s

rights to the timber resources on its traditional territory has

been a longstanding source of contention between the parties.

The precise amount of timber that has been removed from the

areas covered by Gitanyow traditional territory is disputed.

Nevertheless, there is no question that substantial logging and

road building have occurred on those lands, and that these

activities have had a significant impact on the sustainability of

timber resources, and on other aspects of Gitanyow tradition

and culture. A Landscape Unit Plan developed for Gitanyow

traditional territory in 2005 described this:

In the past several decades, clearcut timber

harvesting operations have impacted much of

Gitanyow lands, resulting in a loss of numerous

traditional use sites, damaging or altering many

areas where traditional uses were conducted, and

converting structurally diverse mature and old

growth forests to structurally simple young forests.

As a result of the conversion from mature and old

growth forests to young growth forest, large areas

of habitats required to support plants, birds, fish,

animals that Gitanyow Huwilp members

traditionally used for sustenance and cultural

purposes have been lost to Gitanyow use for many

decades into the future. Therefore, on those lands,

the traditional use can no longer be conducted.

Gitanyow Huwilp members are concerned that

timber harvesting will continue to alter the forest

and stream habitats, thereby changing forest

conditions required to produce the plants, animals, birds, and fish that are necessary for Gitanyow

traditional uses.

Logging activity has impacted other aspects of Gitanyow

culture as well. It has destroyed the Wilp cabins [which Wilp

members and other Gitanyow persons (with permission) used to

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access lands and resources]. Removal of resources has

prevented the Hereditary Chiefs from carrying out their duties

under Gitanyow Ayookxw, or law, to manage their Wilp

territories and resources to ensure future sustainability. As well,

they have been unable to draw on these resources to maintain

their Wilp culture and traditional activities, and instead must

use personal funds for these purposes. Gitanyow say that this

has caused not only financial hardship, but pain and shame

among its people.74

Fully aware that the Court would examine their claim to an aboriginal

right of governance in connection with their Wilp system through the Vander 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).

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1The clearest example of [its failure to respect

Gitanyow’s rights and take its corresponding duties seriously]

… lies in the [Provincial] Crown’s failure to recognize that the

honour of the Crown and s. 35 of the Constitution Act imposed

a constitutional duty to meaningfully consult and reach

accommodation with respect to the recognition of the Wilps and

Wilp boundaries in the strategic decision to replace the [six]

FLs [Forest Licences]. Dismissing such recognition as

impractical, without discussion or explanation, fell well below

the Crown’s obligation to recognize and acknowledge the

distinctive features of Gitanyow’s aboriginal society, and

reconcile those with Crown sovereignty.76

Wii’litswx is the first case in Canada in which a court has affirmed an

aboriginal people’s claim to governance rights over its ancestral territory.77

It has to be noted, however, that the Court did not affirm a claim to

governance rights simpliciter , that is, a governance right accruing to an

aboriginal people as a people who were already governing themselves and

their territory prior to the arrival of Europeans. What it affirmed was a claim

to an aboriginal right reflecting a specific governance system that manifestly

was (and remains) integral to Gitanyow’s distinctive way of life. It remains

to be seen how many other indigenous peoples in British Columbia and

elsewhere in Canada will be able under the Van der Peet regime to repeat

and/or build on Gitanyow’s success.78

11. Final Reflections79

76 Ibid. at para. 247.77 I emphasize the word “claim” because Madame Justice Neilson could not find or grantan order declaring that Gitanyow had a proven aboriginal right. Simplifying somewhat,

this is because the Wii’litswx case proceeded by way of judicial review and judicial

review proceedings, unlike trial proceedings, must rely largely on “un-tried” affidavit

rather than “tried” viva voce evidence. As of yet, no aboriginal people has succeeded in proving an aboriginal right of governance at trial.

78 Because the Province declined to appeal Madame Justice Neilson’s decision, her

findings on Gitanyow’s claims and the Crown’s corresponding duties stand.79 These final reflections - and therefore I - profited greatly from the contributions of and

discussions with the seminar speakers and attendees. Although it would not be

appropriate in a footnote to delve into specifics, I want to acknowledge my debts of challenge and enlightenment to my fellow participants: Jeremy Kinsman (who, along

with his many accomplishments, was Canadian Ambassador to the European Union

[2002-2006]), and Professors Francisco Colom González, Jorge Lazarte, Jessé Souza, and

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Canada, like many nations, has, except for a century and a half hiatus,

long struggled with the question of what, if any, space indigenous peoples

should occupy within the prevailing political and legal regime. Thus,

Canada’s more recent struggle with the question of what constitutional space

they should occupy by virtue of Section 35 of the Constitution Act, 1982 is

not a struggle with a new question differing in kind from the previous but

rather a struggle with a new variation of an old, albeit now less familiar,

question.

Until 1982, the question was answered generally by saying that

indigenous peoples could occupy as much space within the prevailing

political and legal regime as was compatible with Crown sovereignty. In

consequence, the more expansive the notion of Crown sovereignty, the less

space available.80

For much of its 19th and 20th century history, Canada tended to look

upon indigenous peoples as groups to be gradually but inevitably assimilated

into mainstream Canadian society.81 Consequently, over this period of time,

Canada took the stance that any space occupied by indigenous peoples

within the prevailing political and legal regime was only temporary. Over

this period of time, there was no struggle with the question of what, if any,

space, indigenous peoples should occupy within the prevailing political and

legal regime. Canada had firmly settled on the answer, “None”. It was the

Supreme Court of Canada’s decision in the Calder case in 1970, affirming

the common law’s ability to recognize aboriginal title, that forced Canada to

reconsider the question.

Claudio Lomnitz. To the latter Professors, I wish to add my appreciation for sogenerously, 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 intheir 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 WhitePaper”). 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

http://www.ainc-inac.gc.ca/ai/arp/ls/pubs/cp1969/cp1969-eng.pdf






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 thatlegally 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 acolonialist and therefore self-serving belief that indigenous peoples did not

share the status of peoples with British and other European peoples.

Justifying why they did not share this status required finding a difference

that made the difference. Some said it was their religion or lack thereof,

some said it was a propensity for war or savagery, others said that they

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simply lacked the social organization required to constitute them as a

people.82

But times have changed. Where Canada once looked for aboriginal

difference only to justify its discrimination against aboriginal peoples, it

now looks to aboriginal difference to support its multiculturalist self-image

and aspirations. But one thing has not changed. As I hope my main

discussion has shown, Canada’s focus on aboriginal difference has the

consequence, whether still intended or not, that aboriginal peoples are

denied their full and rightful place as peoples within the prevailing political

and legal regime. Despite the expectations and hopes of many, the

constitutionalization of aboriginal rights did not change this. The reason it

did not is traceable to the Supreme Court of Canada’s fateful decision in

Van der Peet . There the Court viewed Section 35’s promise of rights

recognition as aimed directly at aboriginal difference and only indirectly ataboriginal 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 bewholly 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 waswar ...". 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 peoplewho claim aboriginal rights to prove that their ancestors formed “an organized society”.

For a recent example, see the British Columbia Supreme Court decision in Lax Kw'alaams Indian Band v. Canada (Attorney General), 2008 BCSC 447 at paras. 124ff.For a brief but perceptive - one might even say withering - judicial critique of this

“practice”, see the British Columbia Supreme Court decision in Tsilhqot'in Nation v. British Columbia, 2007 BCSC 1700 at paras. 451-454.

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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 theneed 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 childof Confederation, is about to become the downtrodden stepchild of

Confederation.

The remark is found in Halfway River First Nation v. British Columbia (Ministry of

Forests), [1999] 4 C.N.L.R. 1 at para. 232. As it turns out, the views of colleagues

alluded to in the above remark have been generally confirmed in subsequent

jurisprudence, including Supreme Court of Canada jurisprudence (e.g. Haida Nation, supra.) Nonetheless, the increased administrative burden needed to show a modicum of

respect for the aboriginal rights of the Province’s First Nations has not turned British

Columbia into “the downtrodden stepchild of Confederation.”

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I wish to conclude with a final reflection on the Supreme Court of

Canada’s focus on aboriginal culture. It cannot but appear – especially from

the indigenous perspective - as anything other than judicial hubris for the

Court to take upon itself the role of “protector” of indigenous cultures. It is

for indigenous peoples alone to protect their cultures and as they best see fit.

What they need from Canada and its courts is the recognition of rights that

protect them as peoples governing themselves and their territories through

their own institutions and laws. With such rights recognized, indigenous

peoples will look after their cultures themselves.

Documents

Creating Constitutional Space for Indigenous Peoples: Canada's Ambivalence