Domestic Laws versus Aboriginal Visions:
An Analysis of the Delgamuukw Decision
Candice Metallic & Patricia Monture-Angus
1. The concept of "rights" as we know it today is not
one that is (or was) prevalent in traditional First Nations
cultures. The concept most analogous to rights in the natural laws
of First Nations is "relationships", whether such relationships
are with one another, the land, plants, animals, sun, moon or sky
(Monture-Angus 1995: 216-248, 1999: 21-39). Fundamental to the harmonious
and peaceful existence of relationships is respect. Simple as this
may sound, the laws and customs of First Peoples are embedded in
oral teachings which include complex stories, legends, ceremonies
and dance. These teachings are shared in the most scared of ways
as well as in common, every day kinds of ways. It is every individuals
responsibility to participate in these traditions and practices
which teach the right way to be. Commitments to self-reflection
and living up to your gifts are equally essential to First Nations
well-being either individually or collectively.
2. Today, one of the most difficult problems that First Nations
face in striving to have their "rights" or "relationships"
respected and recognized in a contemporary manner is, in part, the
difficulty in reconciling traditional concepts of "rights"
or "relationships" with modern laws rooted in the western
colonial legal system. This system continues to operate so that
it is ideologically and conceptually at odds with traditional First
Nations laws. This is not a necessary condition. As the specifics
of First Nations legal traditions vary from nation to nation and
from community to community, law making and the revival of traditions
is best left with those communities and in those communities.
(It would be impossible to truly teach First Nations law in this
printed format and when community connection is not possible.) This
paper does not attempt to explain these systems of First Nations
laws but, rather, we concentrate on the difficult task of justly
reconciling two vastly different legal systems.
3. It is absolute, at least from the position of First Nations,
that colonialism is tenacious and wrong. Because of the tenacious
characteristic of colonialism, it is essential that the analysis
of Supreme Court of Canada decisions on Aboriginal rights be examined
from a First Nations standpoint. To do otherwise offers no
guarantee that colonial impacts are exposed and essentially prevents
the conclusion of these kinds of oppressive relations. Moreover,
if ending the era of conquest by law is important to Canada, then
this kind of analysis must be encouraged and respected. [The turmoil
that exists in the wake of the Supreme Court of Canadas decision
in Corbiere v Canada,  3 C.N.L.R. 24 is just one indicator
of the consequences of not providing opportunities for First Nations
scholars to analyze the developing case law. See Young-Ing 1993
and Smith 1999 for issues related to indigenous research and publishing.]
4. In order to accomplish the goals identified, this paper will
examine the landmark case of Delgamuukw v. B.C. [1998 1 C.N.L.R.
21] and other recent Canadian high court decisions from an "Aboriginal
standpoint" (that is Miqmaq and Mohawk). This discussion
illustrates the difficulty for First Nations adjudicating claims
in the Canadian judicial system given the continuing institutional,
structural and subjective limitations of the Canadian legal system.
In our view, there has been insufficient attention paid to this
form of legal analysis. (see Bell and Asch 1997; Borrows 1997; Mandell
1987) We also wish that it was possible for us to present a more
encouraging set of conclusions. However, the dynamics of ongoing
legal colonialism prevent this possibility. The acknowledgment that
legal colonization is ongoing, as evidenced in part by the presence
of the Indian Act (and recent unilateral actions to amend
it), is one of our fundamental premises. We also acknowledge that
the impact of this form of colonization is trans-generational and
has multiplied in consequence over time.
5. Our purpose in writing this paper does not diminish the need
to examine a complementary question or purpose which is also very
often over looked in discussions or pronouncements about the meaning
of Aboriginal rights: What, in fact and in law, is "the source
and content of the legal rights of British settlers?" (Walters
1993: 358) In our view, it is primarily the failure of the courts
but also many scholars to sufficiently consider this question. The
half-sided analysis of the relationship contributes significantly
to the way in which courts have gone astray in defining Aboriginal
6. It is clear that Aboriginal rights as both a linguistic and legal
structure is a 20th century phenomenon, primarily arising alongside
the post-World War II concern with human rights. (Royal Commission
1996: 308) Granted, the history between Aboriginal Peoples and western
based legal systems is a long one but it fundamentally rests on
the premise that European nations and people were superior to Indigenous
ones. (Monture-Angus 1999a: 21-39) This early legal history is marked
by, or perhaps tainted by, these colonial misconceptions. Historically,
law was a tool of colonial oppression used in multiple attempts
to acculturate and assimilate First Nations and their citizens,
at the same time, it attempted to delegitimize and destroy their
laws and traditions of First Nations. (Monture-Angus 1999b: 64-87;
Backhouse 1998) As Kent McNeil has indicated about the early legal
The Eurocentric vision of two founding nations,
and the constitutional dogma of exhaustive division of legislative
powers in our federal system, simply left no place for Aboriginal
governments in the minds of most non-Aboriginal politicians and
jurists. (McNeil: 96)
It is quite clear from an Aboriginal standpoint that the existing
Canadian legal framework offers only limited potential.
7. The task that First Nations view as fundamental is to step beyond
these colonial, Eurocentric and patriarchal visions of the European
presence in these territories now known as Canada. Myths such as
the two founding nations must be released. Legal constructs that
exclude First Nations participation must be reconsidered to determine
if such a rule can logically and fairly be extended to First Nations
government who were invisible to the drafters of the constitution.
One significant example is the rule that present constitutional
provisions as found in sections 91 and 92 of the Constitution
Act, 1867 (formerly known as the British North America Act),
require exhaustive division of powers between federal and provincial
governments. Until Canada releases their grasp on a contemporary
colonial mentality and voluntarily commits to these kinds of reconsiderations
then it is our view that no just reconciliation of First Nations
claims can occur. This paper documents a number of reasons for our
8. The oppression of First Nations peoples in Canada is a study
of an interdisciplinary nature which focuses on politics and law.
The law, in its statutory form, was used as an effective and convenient
tool to implement a myriad of government policies and rules aimed
at assimilation and or disenfranchisement of First Nations while
displacing them from their traditional homelands. To give context
to the type of oppression that First Nations have endured, one need
only undertake a historical review of the Indian Act which
represents the codification of colonial subordination of First Nations
and self-serving colonial policy. It is replete with provisions
that suppressed First Nations economies, social organization (including
gender relationships) and political structures (Royal Commission
Vol. 1: 281-307). For example, in the 1800s, government officials
viewed First Nations spiritual practices (which tie the people to
the land) as a threat to effective implementation of the governments
assimilation policy. Therefore, the government unilaterally amended
the Indian Act and made it unlawful for Indians to engage
in traditional ceremonies such as the Potlatch or Sundance:
Every Indian or other person who engages
in, or assists in celebrating or encourages either directly or indirectly
another to celebrate, any Indian festival, dance or other ceremony
of which the giving away or paying or giving back of money, goods
or articles of any sort forms a part, or is a feature, whether such
gift of money, goods or articles takes place before, at, or after
the celebration of the same... is guilty of an indictable offence
and is liable to imprisonment for a term not exceeding six months
and not less than two months... [An Act Further to Amend "The
Indian Act", S.C. 1895, c.25 s.6.]
9. Despite the fact that this section was repealed some time ago
(1951), the memory of the prohibition is still alive in the minds
and hearts of many communities, kinship groups and individuals.
Furthermore Constance Backhouse notes that surviving records suggest
that no whites were ever prosecuted under the Aboriginal dance provisions.
(1999: 92) The impact of the prohibition did not instantly dissipate
with its repeal. A number of Indian people were jailed for carrying
on these "religious" activities and we have never heard
mention of any form of compensation for acts which although permissible
under federal legislation clearly violated religious freedoms and
caused significant harms to First Nations both individually and
10. Furthermore, to prevent First Nations from advancing claims,
in 1927 the government enacted a provision in the Indian Act
which prohibited anyone from "receiving money for the prosecution
of a claim". [R.S.C. 1927, c. 98, at 53. Margin note to section
141]. Section 141, of the 1927 Act read:
Every person who, without the consent of
the Superintendent General expressed in writing, receives, obtains,
solicits or requests from an Indian any payment or contribution
or promise of any payment or contribution for the purpose of raising
a fund or providing money for the prosecution of any claim which
the tribe or band of Indians to which such Indian belongs, or of
which he is a member, has or is represented to have for the recovery
of any claim or money for the benefit of the said tribe or band,
shall be guilty of an offence and liable upon summary conviction
for each such offence to a penalty not exceeding two hundred dollars
and not less than fifty dollars or to imprisonment for any term
not exceeding two months.
11. It is essential to note that while limiting the right of Indians
to access legal representation and bring forward collective claims,
this provision more directly targeted lawyers. An infraction of
this section created an offence to which only lawyers (or those
representing "Indians") could be charged. (see Purich
1986: 122-3) At the time the section was in force it is safe to
suggest that lawyer could also be read as "white man".
As a result, this legislative obstacle to the legal advance of First
Nations claims was most effective in fully denying "Indians"
access to justice.
12. In understanding the political and legal struggles of First
Nations, it is essential to recognize the degree to which legal
oppression has overtly and covertly been imposed upon the self-determining
aspirations (and rights) of First Nations. Clearly the delay in
bringing forward First Nations claims in the present century
is not evidence of First Nations disinterest (which for some is
then translated into the notion of non-white inferiority, a deeply
rooted stereotype) but the legacy of colonial acts of legal violence
for which First Nations are not blameworthy. This is an important
reminder for the descendants of settlers as some believe First Nations
ought to just "get over it" and move ahead with the times.
For First Nations there is a positive and hopefully encouraging
aspect in this short reflection on history. In a relatively short
period of time, our people have overcome considerable obstacles
which now allows or the possibility of taking our concerns to court.
13. An interesting bilateral consequence arising out of the impairment
provided by section 141 of the 1927 Indian Act to the advancement
of Aboriginal rights litigation is that the bringing forward of
a number of legal actions neatly coincides with the time when First
Nations have been able to access post-secondary education in significant
numbers (including legal education). [S.C. 1876, c.18, s. 86(1).]
There are now several hundred First Nations lawyers practicing
law and a handful of us in academia writing about law. This coalesces
with a number of other factors including the development of Aboriginal
(and treaty) rights in domestic courts and creates a dynamic tension
that has resulted in significant litigation being brought to the
high courts in this country. Had significant development in Aboriginal
rights litigation commenced much earlier than the 1970s, the participation
of any First Nations citizen with legal training would not
have been possible. The coalescing of these dynamic factors offers
us encouragement, although we still worry that it is insufficient
to cause transformative change. Although this is by no means a justification
for the oppressive measures contained in the Indian Act,
the analysis does demonstrate that there are a number of catalytic
factors at play which will clearly lead to the development of a
coherent theory of Aboriginal rights. This development should be
led by First Nations with the assistance of our non-Aboriginal relations
who have taken the time and carry the commitment to form a true
understanding of who we are.
14. The analysis of the outcome of Aboriginal rights litigation
has not often been explained in terms of colonial oppression and
it is reasonable to conclude as Peter Russell notes:
as with other juridical triumphs in the
highest courts of settler societies, it is a bitter-sweet kind of
victory. These juridical wins come with a downside - a reminder
of the subordinate place of native societies within the larger settler
societies in which they are embedded, and of their dependence on
the courts that pronounce upon their rights in that larger society.
(Russell 1997: 247)
15. Again, it is also because of this characteristic of colonialism,
dependence, that the analysis of Supreme Court of Canada decisions
on Aboriginal rights must be examined from a First Nations
standpoint. The multifaceted nature of the outcomes of First Nations
legal struggles must be recognized as a struggle to end forced dependence.
Litigation, in and of itself, does not have a singularly negative
impact or result for First Nations. Colonial relations is this present
era are not that linear or explicit. Although we remain cautious
about encouraging First Nations to litigate given what we know and
have experienced of the Canadian legal system, we understand that
litigation is more of a possibility now than it was a mere two decades
16. To fully understand the impacts of the Delgamuukw decision,
a brief acknowledgment of the history of what is now known as Aboriginal
and treaty rights litigation is essential. It is widely recognized
that the Calder case in 1973 was a turning point in Aboriginal
rights litigation in Canada. [(1973), 34 D.L.R. (3d) 145; 74 W.W.R.
1 (S.C.C.)] Peter Russell describes this decision as catalytic "in
the struggle of Indigenous peoples to assert their rights to get
out from under an imperial relationship with the larger societies
in which they are embedded" (Russell 1997: 258). Among other
things, this decision marked the point that Aboriginal people began
to become involved in a substantive and proactive way, in litigation
against the Canadian state. (There were other attempts before Calder
to advance Aboriginal claims through the courts which met with frustration
(See Sero v Gault (Ontario, 1921) and Logan v Styres
(1959), 20 D.L.R. (2d) 416 (Ont. H.C.); Backhouse 2000: 103-131).
Since then, litigation has become a clear strategy on which First
Nations domiciled in Canada have been compelled to rely on in the
last 30 years.
17. In one of the more promising moments in Aboriginal rights litigation,
Justices Dickson and LaForest, indicated in the 1990 Sparrow
decision that a new era of legal relationship with Aboriginal
Peoples began with the entrenchment of section 35(1) of Part II
of Canadas constitution, which says that: The existing
aboriginal and treaty rights of the aboriginal peoples of Canada
are hereby recognized and affirmed. Relying on the wisdom
of Noel Lyon, the Justices note:
the context of 1982 is surely enough to
tell us that this is not just a codification of the case law on
aboriginal rights that had accumulated by 1982. Section 35 calls
for a just settlement for aboriginal peoples. It renounces the old
rules of the game under which the Crown established Courts of law
and denied those Courts the authority to question sovereign claims
made by the Crown. [R. v Sparrow,  3. C.N.L.R. 160
at 178, 70 D.L.R. (4th) 385.]
At a minimum, this judicial pronouncement must be seen to establish
new boundaries which should be considered the frontier of a new
(legal) relationship between Canada and First Peoples.
18. The court provided further detail on the shape of the new legal
frontier the 1982 amendments to Canadas constitution established.
The Supreme Court of Canada was clear in the Sparrow decision that
Aboriginal and treaty rights must be "construed in a purposive
way" [R. v Sparrow, 179] utilizing a generous and liberal
interpretation. Of equal emphasis, the court found, as follows:
When the Court of Appeal below was confronted
with the submission that s. 35 has no effect on aboriginal or treaty
rights and that it is merely a preamble to parts of the Constitution
Act, 1982, which deal with aboriginal rights, it said the following
at p. 322 [p.168 C.N.L.R.]:
This submission gives no meaning to s. 35. If accepted, it would
result in denying its clear statement that existing rights are hereby
recognized and affirmed, and would turn that into a mere promise
to recognize and affirm those rights sometime in the future... To
so construe s. 35(1) would be to ignore its language and the principle
that the Constitution should be interpreted in a liberal and remedial
way. We cannot accept that principle applies less strongly to
aboriginal rights that to the rights guaranteed by the Charter
particularly having regard to the history and to the approach to
interpreting treaties and statutes relating to Indians... [R. v
Perhaps these assurances deceived us or we were overly optimistic,
but we expected that such instructions would lead to meaningful
judicial outcomes. This unfortunately has most often not been the
case and our disappointment with the Delgamuukw decision
continues to mount.
19. If Sparrow truly establishes new boundaries, there is a need
to carefully guard the boundaries of this new frontier to ensure
we are not sliding back to old colonial law making practices and
processes. This need is prefaced on the recognition that colonialism
is tenacious. The embedded characteristics of colonial relations
ensures it the power to self-perpetuate. Given colonialisms
power to self-perpetuate, we understand that legal strategies which
aim to achieve just settlement must be proactive. Therefore, the
degree to which subsequent Supreme Court of Canada decisions respect
the creation of this new frontier is an important consideration.
It is the consideration at the centre of this examination of the
high courts decision in Delgamuukw.
20. Since the first pronouncement Supreme Court in 1990 on the meaning
of section 35(1), it is clear that there is no coherent and agreed
upon conceptual framework for Aboriginal rights on which judicial
decision making proceeds. This void is compounded by another challenge
that is discovered when one tries to reconcile the case law since
the Sparrow decision. One scholar describes the problem in
... the Supreme Court of Canadas first decision on the significance
of constitutionally recognizing "existing" Aboriginal
rights, it committed itself to a generous, liberal interpretation"
which does not legitimate all of the legislative restrictions of
aboriginal rights prior to their constitutional recognition in 1982.
But then in 1996, the Court, performing like the legendary trickster,
moved in the opposite direction with a clutch of decisions narrowing
Aboriginal and treaty rights. In the so-called Van der Peet
trilogy of case, the Court adopted an understanding of the Aboriginal
rights recognized in the Canadian Constitution as reducible to the
bundle of activities that could be shown to be integral to the distinctive
culture of an Aboriginal people at the time of first contact with
Following this long climb up and sudden plunge down, along comes
Delgamuukw at the end of 1997, and the Supreme Courts
Aboriginal rights roller coaster is on the rise again. Unlike the
Van der Peet trilogy where the rights being claimed were
to carry on certain activities (commercial fishing and high stakes
gambling), in Delgamuukw the Gitksan and Wetsuweten
peoples of northern British Columbia were claiming a more fundamental
and comprehensive Aboriginal right - native title to their traditional
lands. The Court has responded to this claim with a much broader
view of native title, as a constitutionally recognized right, than
it took to free-standing activity rights untied to traditional lands.
(Russell 1997: 247)
21. There is an important lesson embedded in this analysis. If the
courts behave incrementally and interpret narrowly Aboriginal rights
when the claims are for "activity based" interests not
directly connected to their view of the land yet act more expansively
when confronted by broad-based territorial claims including jurisdiction
(self-government), then First Nations should become hesitant to
continue to engaged in the "activities based" approach
to litigation (such as trials for hunting or fishing infractions).
Of course such an opportunity does not come without a cost. Expansive
litigation strategies are more costly, require extensive preparation
and take more time.
22. The Delgamuukw decision has been heralded by many as
a victory. Before we are willing to join in the applause, it is
essential to analyze the degree to which the court was able to "break
with the past" as the courts themselves mandated in the Sparrow
decision. The cause of our concern is perhaps most overt in the
courts discussion of evidentiary burdens despite the fact
that this is the portion of the judgment that is most frequently
hailed as a victory. The celebration centres on the fact that the
courts declared that oral history is equal in weight to written
history, overturning the evidentiary framework which would usually
have operated to exclude such evidence. Examination of the oral
history victory demonstrates precisely how the decision tastes "bitter-sweet"
for many First Nations. (Russell 1997: 247) In affirming that the
courts must put sufficient weight on oral histories when First Nations
enter them as evidence, Lamer concluded:
The trial judges treatment of the various kinds of oral histories
did not satisfy the principles I laid down in Van der Peet.
These errors are particularly worrisome because oral histories were
of critical importance to the appellants case. They used those
histories in an attempt to establish their occupation and use of
the disputed territory, an essential requirement for Aboriginal
title. The trial judge, after refusing to admit, or giving no independent
weight to these oral histories, reached the conclusion that the
appellants had not demonstrated the requisite degree of occupation
for "ownership". Had the trial judge assessed the oral
histories correctly, his conclusions on these issues of fact might
have been very different. [Delgamuukw, 56]
Accordingly, the courts will not be tolerant of a situation where
existing procedural rules compromise First Peoples ability
to have a case fairly heard and justly decided. This is, of course,
an important accomplishment. It should not be seen as an accomplishment
that is larger than the oral/written rule on which it was decided
despite the fact that First Nations face many similar barriers embedded
in Canadian law and its procedural rules.
23. One way of discerning the degree to which the 1997 Supreme Court
of Canada decision ignores the thresholds enumerated in Sparrow
is to look at the language Chief Justice Lamer selected when accepting
the validity of oral history in the courtroom. He states:
the laws of evidence must be adapted
in order that this type of evidence can be accommodated and
placed on an equal footing with the types of historical evidence
that courts are familiar with, which largely consists of written
documents. [Delgamuukw, 49-50; emphasis added.]
24. In essence, the Chief Justice concludes his findings on the
admission of oral history with no more than a bit of tinkering.
Existing legal standards including the rules of evidence can address
at least one element of First Nations distinctness that being
the different form historical traditions take. To imply that there
is nothing systematically "wrong" with the existing rules
of evidence and their ability to relate to Aboriginal Peoples without
engaging in some from of analysis is preposterous and this certainly
could never have been Lamers intent. However, if inclusion
is the appropriate standard, then merely offering the existing legal
paradigm, tinkering included, will not suffice. In effect, this
kind of reasoning only allows First Nations access to being
"white" at law (because that is the existing paradigm)
and this of course is nothing more than the familiar pattern of
colonialism. In repeating the historical themes that to date have
characterized colonial/First Nations relations, this approach certainly
does not respect the constitutional status of Aboriginal rights.
25. In examining the offer to "accommodate" First Nations
held out in Delgamuukw, the fact that in 1982 Aboriginal
and treaty rights acquired constitutional status must not escape
our attention and ought to bolster the argument for a new legal
regime for First Nations. The Canadian constitution is, of course,
the "supreme law of the land." (Section 52, Part II).
There is no domestic legal status greater than constitutionally
protected rights. This must mean something in real terms for the
scope and content of Aboriginal and treaty rights. However, the
degree to which the Courts (and legislatures) are respecting this
status is questionable.
26. The detail of our disappointment is demonstrated by considering
whether the language in which First Nation rights are accorded recognition
in Delgamuukw meets the standard established in Sparrow.
The words "adapt" and "accommodate" appear
in the legal discourse of equality rights and legal theories of
non-discrimination. The degree to which legal anti-discrimination
provisions have forced governments to do things differently is open
to question and it is recognized these protections frequently reinforce
the racial/cultural status quo. The fact that much of the successful
equality rights jurisprudence has been brought forward by white
men and white women (Aylward; Brodsky and Day 1989; Razack 1998)
is sufficient in our minds to cause concern about the degree to
which there is a potential to bring about both fundamental and transformative
change by transplanting such theories of anti-discrimination into
the sphere that should be occupied by a coherent theory of Aboriginal
rights (or more accurately, "relationships"). (Monture-Angus
27. Of particular concern is the inability of Canadian courts to
apply an understanding that reflects lived realities of intersectionality
rather than merely compounding grounds of discrimination when plaintiffs
are First Nations and women and/or poor and/or isolated on reserves
and so on. (Aylward 1999; Comack et al. 1999; Eaton 1994) The accepted
scope that the courts allow litigation to take influences the kinds
of situations, that is colonial outcomes, that qualify for remedy.
This is the infrequently examined gate-keeping function which can
be attributed to the courts failure to recognize that the
problem of colonialism is greater than the denial of hunting, fishing
and gathering rights or the theft of land. Our conclusion, therefore,
is that words like "accommodate" and "adapt"
are clearly below the standards envisioned in Sparrow.
28. The kinds of problems First Nations will turn to the courts
for assistance in the next decade also demonstrates the degree to
which a healthy amount of skepticism might be expected and not only
expected will help to keep our hopes for litigation realistic. Residential
schools would be the obvious example. The legal imagination presently
visions remedies only for the overt and direct incidents of physical
and sexual "abuse". (Chrisjohn et. al 1997) There is no
legal acknowledgment that residential schooling significantly contributed
to loss of language, loss of parenting skills, loss of community,
loss of identity, loss of self worth and that these losses all add
up to various outcomes of self abuse including suicide and substance
abuse. These losses can be tallied up across generations and include
those of us who were not forced or taken to residential schools.
A second example, is the fact that the legal and political systems
have failed to create avenues of redress for the Potlatch and dancing
prohibitions earlier mentioned. The problem is more accurately described
as a lack of legal imagination or even the will to imagine (Macklem
29. Our concern is equally with the application of "rights"
theory to Aboriginal claims and can also be seen in the conceptual
origins of non-discrimination provisions such as those found in
the Charter and Human Rights Codes. (Monture-Angus 1995:
chs. 4,7,8) As Kathleen Lahey concluded:
Thus I locate the struggle over the rights of disadvantaged groups
generally, and more particularly the rights of sexual minorities,
in the larger struggle that has unfolded in state societies over
the civil capacities of persons.... I have concluded
that the contemporary human rights movement became possible only
when state societies began to reach consensus that older notions
of civil incapacities - such as the lack of legal capacity
assigned to women by virtue of marriage - should no longer be used
to delimit different classes of adults.
Reading human rights law in this historical context has led me to
conclude that the human rights movement has had a dual
function; it has served to bring to an end the political practice
of using legal incapacities to strip some human beings
of their social and economic power, and it has protected members
of groups that have historically been denied full legal personhood
from wide-ranging forms of injury to their human dignity.
Although most commentators have used the notions of personhood and
human dignity almost interchangeably, I differentiate these concepts
here. Even though human rights guarantees were originally designed
to secure the basic incidents of full legal personality to disadvantaged
groups, merely securing the human dignity of people
who remain civilly incapacitated in any way will not
have much effect on deep-seated hierarchies of privilege. (Lahey
30. The level of analysis that Professor Lahey has brought to the
circumstances of sexual minorities also applies to other groups
who have had their civil capacities impaired (and in some situations,
such as matrimonial property on reserve, First Nations women still
remain non-persons). Colonial imposition on First Nations did not
end with attacks on the individual rights of First Nation persons
but also it interfered with "rights" in First Nations
legal systems. The degree to which the acknowledgment of a few rights
under the constitutional of Canada is thus revealed as incomplete.
We are not convinced that the current legal rights paradigm can
(or will) fully address the slate of consequences and impacts of
colonial oppression whilst recognizing that the interferences are
both individual and nation based.
31. A single example illuminates our concerns. It is evident in
recent litigation such as the Corbiere decision (which was,
in fact, a Charter case and not an Aboriginal rights case
under section 35) that the Charters section 15(1) is
influencing the conceptualization of Aboriginal rights and will
likely continue to do so especially if Aboriginal litigants continue
to rely on the Charter in framing their litigation. [Corbiere
v Canada (Minister of Indian and Northern Affairs), 1999. 3
C.N.L.R. 24.] The problem with the Charters influence
on section 35(1), an influence most likely gained simply because
they are both rights provisions, is that the connection (or lack
thereof) is largely judicially unquestioned. It is not a matter
as simple as arguing whether or not the Charter should apply
to First Nations governments. Rather the question and answer should
be framed in a clear articulation of how the Charter will
protect what little First Nations have left (and in our opinion
it will not because Aboriginal rights will then be subject to individualized
scrutiny under the Charter regime). First Nations considering
litigation under the Charter should be very careful to scrutinize
the consequences embedded in that instrument. (Turpel: 3-45) The
failure to do so may result in a potential misdirection of section
35(1) toward a rights paradigm driven by a culture that values individualism
(versus some form of discussion about communal or collective rights).
This dichotomy is not helpful.
32. In Corbiere, LHureux-Dubé J indicates that
the significant underlying value in the Charter is human
dignity. She cites from the Law decision as follows:
Human dignity means that an individual or group feels self-respect
and worth. It is concerned with physical and psychological empowerment
and integrity. Human dignity is harmed by unfair treatment premised
on personal traits or circumstances which do not relate to individual
needs, capacities, or merits. It is enhanced by laws which are sensitive
to the needs, capacities, and merits of different individuals, taking
into account the context underlying their differences. Human
dignity is harmed when individuals and groups are marginalized,
ignored, or devalued, and is enhanced when laws recognize the
full place of all individuals and groups within Canadian society.
Human dignity within the meaning of the equality guarantee does
not relate to the status or position of an individual in society
per se, but rather concerns the manner in which a person legitimately
feels when confronted with a particular law. (Corbiere, 47-48;
33. It is not that we dispute that the fundamental legal principal
in Canadian equality law, human dignity, should not also broadly
apply to Aboriginal rights litigation under section 35(1). In fact,
human dignity (although not usually expressed in precisely this
way) is one aspect of the concept of respect that defines traditional
First Nations approaches to relationships and natural laws. The
application of this principle must be applied in different ways
which are not easily comprehended by non-First Nations societies.
Therefore, it is better left to First Nations to determine how and
when such principles of human dignity will apply to our relationships,
especially to our internal relationships. In any event, from a legal
perspective one cannot ignore the fact that the Courts have declared
that Aboriginal rights are in some ways analogous to Charter
rights despite their obvious differences such as their communal/collective
nature. (Sparrow, 177) Again, this is another example of
the courts conservatism and demonstrates their inability to
access legal imagination.
34. The precise meanings of both equality and human dignity in the
context of potentially reconciling competing constitutional claims
must be carefully considered. In Delgamuukw, Chief Justice
Lamer provides this interesting articulation of the principles guiding
Aboriginal rights interpretation:
Aboriginal rights are truly sui generis,
and demand a unique approach to the treatment of evidence which
accords due weight to the perspective of Aboriginal peoples. However,
that accommodation must be done in a manner which does not strain
"the Canadian legal and constitutional structure". (Delgamuukw,
47-48. Lamer quoting himself in R. v Van der Peet, 
4 C.N.L.R. 184 at 202)
35. Lamers interpretation of Aboriginal rights does not permit
application of First Nations approach to the law or a just
reconciliation of historical circumstance that excluded First Nations
from Canadas original constitutional order and sovereign claims
if those claims "strain the Canadian legal and constitutional
structure". What must be understood is that any definition
of equality which vests Aboriginal rights with a duty to not strain
the constitutional order can only protect the legal and political
status quo. At best, this is enforcing equality as sameness, if
it is equality at all. Equality perhaps is not even the appropriate
standard to hold Aboriginal rights to as it is ground in a particular
cultures legal understanding. Equality as presently understood
by Canadian courts might not be a universal good. The irony of protecting
the Canadian constitutional structure at the expense of Aboriginal
rights (and the Aboriginal legal order) is transparent and the value
of human dignity is not even mentioned.
36. This examination exposes the trend of the judiciary is toward
conservatism and it also demonstrates that Canadian law makers are
not really prepared to undertake wholesale changes to existing legal
frameworks to incorporate First Nations conceptions of our "rights"
or "relationships". If this conclusion sounds harsh, it
is wise to remember that the final outcome in Delgamuukw
was to send the matter back to trial. Rather than creating space
for First Nations law making, the case law suggests that existing
laws and legal principles may have only shifted slightly to create
a small First Nations enclave within prescribed laws and rules when
those enclaves are no-threatening to Canadian legal ideals. This
is not equality nor does it respect human dignity. It is merely
nominal power sharing to only the degree that those with power feel
comfortable or non-threatened. It is the "trinkets" approach
to Aboriginal claims resolution and as such, is unsatisfactory.
37. The Supreme Court of Canada has been unequivocal in stating
on numerous occasions that the underlying principle of section 35
is the reconciliation of Aboriginal rights with the assertion of
Crown sovereignty (Van der Peet, 202). Reconciliation is
a complex concept that must be carefully considered. However, one
thing is clear in our minds: there is a significant difference between
mere "accommodation" or "adaptations" of existing
Euro-western legal orders of Aboriginal distinctness and true, fair
and just reconciliation. Aboriginal peoples, in our opinion, are
not in search of mere accommodations but transformational changes
such as the court in Sparrow imagined. There the court indicated
that what was to be expected since the entrenchment of Aboriginal
rights in the Canadian constitution was a "change in the rules
of the game". (Sparrow, 178). It is from transformational
changes that the potential to create a truly new relationship between
Canada and First Nations exists. The danger and the worry is that
the court will in fact define the parameters of new constitutional
relationships that only further entrench old colonial patterns.
Such a possibility looks to First Nations to do all the changing.
This cannot be the reconciliation the court refers to as the basic
premise underlying section 35(1) as such an approach is obviously
not new (Delgamuukw, 78). It remains colonial.
38. In adhering to the standard of true reconciliation, we must
question whether the court is engaging in transformative change
or merely engaging in flowing and supportive rights rhetoric
regarding the developing law of Aboriginal rights including Aboriginal
title. This examination requires the determination of the degree
to which the Delgamuukw decision actually incorporates First
Nations ways of thinking and seeing the world (a more respectful
way of acknowledging what the courts frequently label "Aboriginal
perspective"). In addition to the concerns we have raised about
Delgamuukws oral history victory, this project also
requires a careful consideration of the courts findings with respect
to the sui generis nature of Aboriginal rights and Aboriginal title,
the content of Aboriginal title, the inherent limit on land use
created by Lamer, communal rights and compensation. This further
analysis also substantiates the conclusions we have drawn earlier
in this paper and exposes the degree to which the Delgamuukw
decision feels terribly close to an old pattern.
39. Before considering the specific components of the Delgamuukw
decision, it is important to recognize that the findings in the
case often forces us to walk down the blade of that double-edged
sword constantly balancing our understanding as First Nations
persons and our heartfelt commitments to live in the ways of our
people with our legal training. [Candice Metallic is a member of
the Miqmaq Nation and Patricia Monture-Angus is Kahnyenhehaka
(Mohawk).] Such tension is also experienced as the "bitter-sweetness"
that has thus far been a characteristic of any form of reconciliation
that governments hold out or courts permit. We do not accept that
this tension is necessarily the central quality of reconciliation.
Rather, for true and sincere reconciliation of First Nations and
Canadian sovereignties to occur, the courts must undertake to examine
the idea of underlying crown title which is a central building block
only in the construction of Canadian sovereignty. This is a specific
issue which is part of the broader question asked earlier in the
paper: What rights in law did the settlers have? As First Nations
have existing legal and political structures. True reconciliation
should equally respect these structures and afford an equal expectation
that wandering into the Canadian constitutional fold does not unduly
strain those legal and political systems or relationships of First
40. If all parties are not equally motivated by the goal of true
reconciliation, then something has to happen to close the gap between
the two parties. James Youngblood Henderson (Chickasaw) has examined
the relationship between First Nations aspirations and judicial
pronouncements in Delgamuukw and noted:
The challenge to the Canadian judiciary
and other parties is to develop a sui generis and transcultural
approach to Aboriginal rights to land and activities issues, rather
than relying on British traditions. (Henderson, 10)
41. The tantalizing question is the degree to which the courts are
capable of stepping up to this standard. As already demonstrated,
the evidentiary pronouncements in Delgamuukw are cause for
concern despite the cause for celebration over the oral history
"victory". (It is essential to understand that courts
are not equipped or trained to understand how to listen to oral
history evidence. The concerns about cultural outsiders determining
the value of Indigenous systems are deep and complex.) Second, the
courts seem to have concluded that reconciliation is a threshold
task without considering the degree that First Nations would agree
with this conclusion or subscribe to the value of such a process.
Perhaps the priority in First Nation communities is really about
over coming colonial manifestations.
42. Commenting on the task before the courts, and in our view, arriving
at the essence of what skills reconciliation requires the court
to possess, James Youngblood Henderson continues:
Such reasoning suggests the judicial respect for Aboriginal law
and the common law must be equal for any translegal reconciliation
at the heart of a just trial. However, this approach creates a unique
translegal and transcultural-balancing test that is unexplored in
common law traditions and legal pluralism. This approach is also
inconsistent with the Courts decision that Aboriginal law
and prior presence comprise the source of Aboriginal rights. (Henderson
The emphasis of both the judiciary and legal academics demonstrate
that they both place their faith in the concept of sui generis
Aboriginal rights to create space for Aboriginal Peoples and their
rights. We are not fully convinced and do not share this hope. Sui
generis may be the courts replacement for the word "existing"
that was meant to limit Aboriginal rights and particularly stop
the revival of extinguished rights.
43. For rights to be sui generis simply means that they are
not like anything else.
Although this sui generis status which attaches to Aboriginal rights
can be demonstrated and does provide certain benefits, it also clearly
can act to marginalize and minimize the content of those constitutionally
protected rights. Further, it creates an entrenched uncertainty
as one never knows when established rules of law and evidence will
be followed in Aboriginal rights cases or when those rules will
be discarded as sui generis. Uncertainty will not provide access
to just resolutions of Aboriginal claims.
44. Again, walking on the blade of the double-edged sword, it is
equally possible, as just noted, that the sui generis nature of
these rights does not create space but rather holds the potential
to further entrench the marginalization of Aboriginal Peoples through
the vehicle of Aboriginal rights including Aboriginal title. The
Court in Delgamuukw, we believe, attempts to protect Aboriginal
title from such a consequence. Lamer CJ. indicates that Aboriginal
title is a "right in land" or in other words it is not
some lessor form of property right than those held in western systems
of law (Delgamuukw, 68) At the same time, the court describes
the position of Aboriginal title in Canadian law as sui generis
in nature. Again, this simply means that Aboriginal rights and Aboriginal
title are "not like anything else". With this simple definition
we do not take issue. It is a question of how the sui
generis nature of Aboriginal rights (including Aboriginal title)
are operationalized that causes us concern. There is little clarity
or guidance provided by the courts beyond claiming the sui generis
nature of Aboriginal rights including Aboriginal title. Without
clarity, a concept such as sui generis is overly flexible
and can be used by the court as easily to limit Aboriginal rights
as to protect them.
45. Since the decision in St. Catherines Milling (1888),
the high courts have been suggesting that Indian title was "a
personal and usufructuary right" and that the rights of "Indians"
are sui generis (St. Catherines Milling etc.
Co. v R. (1888), 14 A.C. 46 at 54 (P.C.); supra, Delgamuukw,
58). The courts have been very clear since Calder that the concept
"personal and usufructory rights" is not applicable nor
is it helpful in delineating Aboriginal land rights. (Delgamuukw,
59; supra, Calder, 209.) As this idea never came from
First Nations and was in fact offensive to us, it is difficult to
situate the courts setting aside of an idea with negative consequences
for us, as some kind of victory. Equally, the sui generis nature
of Aboriginal rights arising at the same time and in the same way,
is now seen as a positive focus within the slowly developing theory
of Aboriginal rights (and relationships). We are not convinced that
this concept, sui generis, should be so quickly embraced
despite its emotive fit with our belief in our difference. Emotive
fit is insufficient to guarantee legal respect which is really the
46. Other scholars have also expressed their concern about the potential
harmful characterization of the rights of Aboriginal people as sui
generis. John Borrows (Anishnabe) and Leonard Rotman thoughtfully
describe their concerns:
The sui generis concept is employed
to discard those notions of the common law that have not been "sensitive
to the Aboriginal perspective itself on the meaning of the rights
at stake." As such, the doctrine can be characterized as part
of the common law - that attempts to leave behind much of the common
law. Such a selective invocation of the common law is a risk-laden
speculation for Aboriginal peoples. If they submit to even a part
of the common law, it is inevitable that the other parts of this
structure will continue to operate. A contextual shift in one doctrine
does not mean that the accompanying legal blueprint will be redrafted
to conform to the new principle. There is still an intricate system
in place that supports the old design and architecture of the law.
Since the past application of common law principles has restricted
Aboriginal peoples in the exercise of their original entitlements,
its further use could represent the continuation of colonialisms
design. (Borrows and Rotman 1997: 26-7)
Thus, the sui generis characterization of Aboriginal rights
is problematic in the degree to which it attempts to convince us
that the tenets and practices of colonialism will be left behind.
47. In the last three decades, the courts in Canada have begun to
describe the content of Aboriginal title in several ways. The constant
theme of the decisions is the sui generis nature of Aboriginal
rights including Aboriginal title. Although this paper is not intended
to provide a rigorous analysis on the subject of Aboriginal title,
a brief discussion of the courts findings is necessary to ground
our remarks. (McNeil 1997 and 1998) The court lists three "dimensions"
of Aboriginal title: inalienability, source and communally held.
We take no issue with any of these three dimensions but note instead,
that this is not really a comprehensive or descriptive definition
of Aboriginal title. It is equally devoid of any First Nations
conception of land holding (and First Nations clearly had well developed
notions of territory). In introducing their discussion of Aboriginal
title, Lamer notes that there has "never been a definitive
statement from either court [the Judicial Committee of the Privy
Council or the Supreme Court of Canada] on the content of Aboriginal
title." (Supra, Delgamuukw, 57-9).
48. The Chief Justice continues:
I have arrived at the conclusion that the content of Aboriginal
title can be summarized by two propositions: first, that Aboriginal
title encompasses the right to exclusive use and occupation of the
land held pursuant to that title for a variety of purposes, which
need not be aspects of those Aboriginal practices, customs and traditions
which are integral to distinctive Aboriginal cultures; and second,
that those protected uses must not be irreconcilable with the nature
of the groups attachment to that land. (Supra, Delgamuukw,
What is particularly interesting in this conclusion is that we find
little that is really new or different in the courts expression.
This is largely a restatement of existing law dating back to at
least the Calder decision. The phrase "exclusive use
and occupation" strikes us as dramatically similar, given the
time that has passed, to the finding of "personal and usufructory"
right found in the 1888 St. Catherines Milling decision.
49. Particularly in the face of the Sparrow decision which
suggests that the "old rules of the game" no longer apply,
it is disheartening to closely examine the reasoning in the Delgamuukw
decision. It is similar to Sparrow in the fact the court
still insists on distinguishing the rights held by Aboriginal people
as in no way equivalent to fee simple. (62) This "full ownership"
is reserved for the crown and its subjects. The result, we believe,
is the construction of a hierarchy of legally recognized property
rights where Aboriginal title is subordinate. The court itself admits
to this arbitrary constriction when it defined Aboriginal title
as a right in land (57) but falling short of "a form of inalienable
fee simple". (62) Our point is simple: for a right that is
constitutionally protected we do not find that the court has significantly
challenged pre-existing assumptions and stereotypes of Aboriginal
legal systems and property ownership (more accurately expressed
within the culture as land and territorial relationships). If the
standard is, and it is our standard, that we see ourselves and our
cultures in the courts findings, then it is clear the court has
failed. The decision carves out a small space for Aboriginal title
but we find the space unnecessarily narrow and limited. It does
not respect our understanding of what the relationship in Canadian
law could, and perhaps, should be.
50. The unnecessary carving out of an overly small space has occurred
because the court has not sufficiently challenged its western colonial
heritage and the assumptions that flow from that heritage. The court
has also failed to challenged its own laws and historical circumstances
in such a manner that would allow Aboriginal and treaty rights to
flourish in a manner that all constitutionally protected rights
deserve. And the fact that Aboriginal rights including Aboriginal
title are constitutionally validated must not be obscured. (65)
Moreover, the courts have only recently begun to hear First Nations
testimony concerning our rights and remain challenged by precisely
what to do with this evidence. Therefore, the extent to which this
new approach has affected the outcome of any particular case is
certainly questionable and will likely remain this way for some
time into the future. This realization holds particular consequences
for First Nations considering their litigation options and must
form a basis of the analysis that communities with their lawyers
make before commencing and during litigation. This is a new job
for lawyers and a different kind of task. Therefore, it is First
Nations communities that must be vigilant in ensuring that this
analysis is made.
51. There are other examples which highlight our concerns about
the potential of litigation as a strategy. One is the limit that
is placed on the use of Aboriginal title lands. This is perhaps
the most offensive aspect of the Delgamuukw decision. This
"inherent limit", as the court describes it (62) is neither
necessary nor logical. Lamer opines:
The content of Aboriginal title contains
an inherent limit that lands held pursuant to title cannot be used
in a manner that is irreconcilable with the nature of the claimants
attachment to the land - it is a sui generis interest that
is distinct from "normal" proprietary interests, most
notably fee simple. (62-63)
Again, our concern with the sui generis characterization of Aboriginal
rights is evident here. It is the sui generis nature of Aboriginal
rights that are used to justify the application of the "inherent
limit" on land use (a limit that if applied to fee simple ownership
would be viewed as outrageous).
52. The courts also see their role as protecting Aboriginal title
through the application of the "inherent limit". This
is connected to the source of Aboriginal title as independent from
crown action. Prior occupation is relevant in two ways; first because
prior occupation demonstrates Aboriginal title, and second, "because
Aboriginal title originates in part from pre-existing systems of
Aboriginal law." (63) These factors culminate in the courts
recognition that the continuity of the relationship with the land
is important to the future continuance of Aboriginal communities
as Aboriginal and as distinct. Lamer concludes:
The relevance of the continuity of the relationship
of an Aboriginal community with its land here is that it applies
not only to the past but to the future as well. That relationship
should not be prevented from continuing into the future. As a result,
uses of the lands that would threaten the future relationship are,
by their very nature, excluded from the content of Aboriginal title.
53. Granted, there is no doubt that First Nations have teachings
that instruct and inform on the proper relationship of the people
to the land. This relationship, as Lamer correctly points out, is
both past looking as well as future looking. It is the land that
holds not only our ancestors but also the "faces in the sand"
(Mohawk expression for the children yet to be born). However, Lamer
fundamentally misunderstands the complexity of First Nations relationships
with the land. The relationship is a spiritual and ceremonial relationship.
The land is mother (and that is not a metaphor). (Little Bear 2000:
78) It is where we come from. Granted, Lamer as a representative
of the court is able to mouth compliance with what the courts refer
to as Aboriginal perspective. Unfortunately, this does not reflect
the complex understandings of our social, cultural, spiritual or
governmental orders as the First Peoples themselves understand it.
If "Aboriginal perspective" is acknowledged by the courts,
then one would assume that constitutional protections at least reflect
the knowledge of the people(s). Acknowledging First Nations distinctness
and knowledge systems must be more than legal platitude.
54. Equally troubling and likely a certain reflection of negative
stereotypes about First Nations ability to manage their own
affairs, are the examples Lamer chooses to delineate the need for
boundaries on Aboriginal use rights. He notes that: "uses of
the lands that would threaten the future relationship are, by their
very nature, excluded from the content of Aboriginal title."
(Supra Delgamuukw, 63) He provides that hunting grounds cannot
be strip mined and that ceremonial lands cannot be turned into parking
55. The irony is that the pillage of resources from Aboriginal lands,
be that timber or minerals, has historically not been carried out
by Aboriginal people. Rather it is the effect of government sanctioned
commercial activities carried on by large corporations vital in
the maintenance of the Canadian economy. The damage to Aboriginal
lands by external forces is not discussed in the case nor is there
a relationship drawn by the court to the "inherent limits".
If First Nations lands need protecting (and they do) it is
not from First Nations citizens. The result is the decision
does not reflect either Aboriginal or Canadian realities. It was
these very realities that were causal factors in the Gistkan and
Wetsuweten peoples engaging in court action in the first place.
The result of the litigation is the creation of a new category of
supervision over First Nations, the "inherent limit" and,
as such, colonialism is not denied but re-invented by the court.
The irony is indeed extreme.
56. These examples, strip mining and parking lots, are deeply offensive
to Aboriginal people, but more troubling is the idea of the enforcement
of such "protections". We are not suggesting that any
land use regulations are inappropriate, just that those regulations
need to respect the culture and the realities of life in the community.
And equally, legal remedies need to offer First Nations the opportunity
to protect our land and the way our culture is connected to that
land against outsiders. It is difficult to imagine that First Nations
themselves would initiate such litigation that seeks court intervention
in the internal regulation of land use. In this way, the courts
comments reflect a more contemporary, but none-the-less unjustified,
stereotype that First Nations governments do not respect their people.
This disrespect of citizens may have occurred as isolated incidents,
it is certainly not the norm. Rather, it appears that the court
has revitalized a rationalization for the "Indians are wards"
colonial notion and given the federal government another source
and form of legitimacy for intruding in First Nations lives
and governments. This is both colonial and paternal. We ought to
be able to expect more from Canadian courts in the twenty-first
57. Another notion of which the courts became especially fond in
the Delgamuukw decision is the idea that Aboriginal rights
(including Aboriginal title) are communal rights. Although, at the
cursory level we agree emphatically with this position, as land
rights (more accurately thought about as land relationships and/or
land responsibilities) were a commodity of the community and not
necessarily of certain individuals. But to juxtapose Aboriginal
rights and especially Aboriginal title as "communal rights
versus individual rights" is to blatantly disregard Aboriginal
cultures, traditions and governance structures where the individual
and collective are involved in co-existing relationships. When the
court had the opportunity to demonstrate their knowledge and regard
of First Nations cultures and traditions, they chose instead
to impose colonially laced remedies.
58. Communal rights in the Delgamuukw decision are used to
deny First Nations people access to individualized rights on occasion
and this potential is further embedded in the present litigation
framework. (R. v Sundown,  2 C.N.L.R. 289 at 307 (S.C.C.).
R. v Marshall,  4 C.N.L.R. 161. According to Department
of Fisheries regulations, access to fishing is based on only a handful
of licenses being issued. This handful is supposed to satisfy and
support the entire community. This essentially denies many Miqmaq
the opportunity to exercise their treaty rights.) In the same manner
that the fairly intended concept of sui generis can operate
in two directions, one that is respectful to Aboriginal people and
nations and one that only offers further marginalization and oppression,
so too is the potential interpretation and application of the communal
nature of Aboriginal rights. This is in fact the double-edged sword
that is embedded in our thinking about these issues. It is clear
that the benefit of this conceptual framework can accrue to either
Canada alone or Aboriginal nations. Rather, the solution rests on
balancing both these interests and sovereignties. At the present
time, the direction and the commitment of the courts is, at best,
unclear. Therefore, the degree to which courts can mediate a solution
is highly questionable. First Nations must carefully consider the
obstacles and uncertainties as part of their litigation strategies.
59. Although much of our response to Delgamuukw is about
our concern with the whittling down of constitutional rights, we
also recognize at least one area where potential still remains.
Compensation is an interesting issue raised by the courts. The dicta
regarding adequate compensation as a remedy for lack of consultation
(including more than monetary remedies) is progressed no further
than a few preliminary comments in the decision. (Halfway River
First Nation v British Columbia,  4 C.N.L.R. 7.) The duty
to consult is an element of the fiduciary duty the Crown owes to
First Nations. (Supra, Delgamuukw, 76-80) The Court's comments
are especially interesting with reference to the notion that compensation
arises on a failure of the government to adequately consult with
The economic aspect of Aboriginal title
suggests that compensation is relevant to the question of justification
as well, a possibility suggested in Sparrow and which I repeated
in Gladstone. Indeed, compensation for breaches of fiduciary
duty are a well-established part of the landscape of Aboriginal
rights: Guerin. In keeping with the duty of honour and good
faith on the Crown, fair compensation will ordinarily be required
when Aboriginal title is infringed. (80)
60. There is also an issue of the extent to which consultation is
required to satisfy the governments obligations. (79) It is an interesting
matter because it holds the potential to truly force governments
to begin doing business differently with First Nations. We stress
that this is only an introductory comment and it will take time
for the courts to clearly articulate the breadth and scope of these
findings. First Nations who are presently considering litigation
or developing strategies are encouraged to consider carefully and
creatively the issue of remedies such as compensation for failure
to consult. (Lysyk J.; Lawrence and Macklem 2000)
61. In Delgamuukw, Lamer is clear that the underlying purpose
of the constitutional provision recognizing and affirming Aboriginal
rights is reconciliation. (Supra, Delgamuukw, 78) Reconciliation,
in our view, is a complex concept in the context of Aboriginal relations
with Canada. Reconciliation does not sit on the air. It is a subsidiary
process that must follow a process of truth telling. This, in the
circumstances of relations with First Nations, must be part of a
process of education where Canadians choose to enlighten and educate
themselves about the many atrocities that were (and are) committed
against First Nations. All of these considerations associated with
reconciliation lead us to question whether we are yet ready to engage
in a sincere process of good faith leading toward reconciliation.
62. Based on a review of litigation from Calder through to
Delgamuukw and having an appreciation of the limitations
of litigation, it is evident that First Nations do not have the
luxury of determining the parameters of reconciliation, but rather
remain primarily concerned with continuing to protect what little
we have. This suggests that litigation by First Nations has done
little to shift the underlying dynamics of colonialism on to a foundation
that would enhance reconciliation. It would serve the integrity
of the legal process if the courts were careful to ensure that their
decisions reflect First Nations realities rather than pontificate
their ideals of the way they would like things to be. Without such
a shift, the distance between First Nations and Canadian institutions
remains unchanged and unchallenged.
63. It is clear that one of the significant difficulties that continues
to perpetuate the tension in Aboriginal rights litigation is the
lack of a coherent and a mutually agreed upon theory of Aboriginal
rights. As Patricia Monture-Angus has concluded:
Yet again, this is a familiar theme. Litigation in the area of Aboriginal
rights and Aboriginal title proceeds without a grounding in a solid,
coherent theory of the relationship between Aboriginal people and
the state (which is really the essence of the problem with Aboriginal
rights litigation). Without the theory, the direction we are headed
is unclear. It creates the opportunity to focus on limiting Aboriginal
rights rather than enhancing those rights. This latter task should
be the ambition of the Court, as constitutionally protected rights
should be taken seriously. (Monture-Angus 1999a: 129)
64. It is our view that this theorizing, as a first step in reconciling
the multiple sovereignties which make up the Canadian state, must
occur in a way that fully involves Aboriginal people as "equal
partners". Our analysis cautions First Nations on the degree
to which they can rely on the courts to genuinely be a forum for
rigorous discussion and resolution of the outstanding issues. If
a forum for discussion where equal partners cannot or does not exist,
we are not yet clearly at a new frontier but we are merely left
with too much of the same-old same-old, colonialism.
This paper reflects the law and scholarship at June 1, 2000. We
would, in addition, like to emphasize the fact that our concerns
with the Canadian legal process and practice are loudly demonstrated
in the Supreme Courts handling of the Mitchell v M.N.R
rendered May 24, 2001, File No. 27066.
The authors would like to thank the Delgamuukw Research Group; John
Borrows, Frank Cassidy, Kent McNeil, and Maria Morellato, for their
helpful comments on an earlier draft of this paper. We would also
like to pay our respects to the Elders who have spent time with
us and taught us to walk these two roads.
Aylward, Carol Canadian Critical Race Theory: Racism and the
Law (Halifax: Fernwood Publishing).
________ (1999) "Intersectionality: Crossing the Theoretical
and Praxis Divide" in Conference Proceedings, "Transforming
Womens Future: Equality Rights in the New Century," West
Coast LEAF, November 4-7.
Asch, Michael (1997) (ed.), Aboriginal and Treaty Rights in Canada:
Essays on Law, Equality and Respect for Difference (Vancouver:
Backhouse, Constance (2000) Colour-Coded: A Legal History of
Racism in Canada, 1900-1950 (Toronto: The Osgoode Hall Society).
Battiste, Marie ed. (2000) Reclaiming Indigenous Voice and Vision
(Vancouver: UBC Press) 77-85.
Bell, Catherine and Asch, Michael (1997) "Challenging Assumptions:
The Impact of Precedent in Aboriginal Rights Litigation" in
Michael Asch (ed.), Aboriginal and Treaty Rights in Canada: Essays
on Law, Equality and Respect for Difference (Vancouver: UBC
Borrows, John (1997), "Frozen Rights in Canada: Constitutional
Interpretation and the Trickster," 22:1 American Indian
Law Review, 37-64.
_________ and Rotman, Leonard (1997) "The Sui Generis Nature
of Aboriginal Rights," 36(1) Alberta Law Review (1997),
Brodsky, Gwen and Day, Sheila (1989) Canadian Charter Equality
Rights for Women: One Step Forward or Two Steps Back? (Ottawa:
Ontario Advisory Council on the Status of Women)
Chrisjohn, Roland, Young, Sherri and Maraun, Michael (1997)
The Circle Game: Shadows and Substance in Indian Residential School
Experience in Canada (Penticton: Theytus Books Ltd.).
Comack, Elizabeth et al eds. (1999) Locating Law: Race/Class/Gender
Connections (Halifax: Fernwood Publishing)Eaton, Mary (1994) "Patently
Confused: Complex Inequality and Canada v Mossop," 1 Rev.
Cons. Stud. 203.
Harring, Sidney L. (1998) Native People in Nineteenth Century
Canadian Jurisprudence (Toronto: The Osgoode Society).
________ "Envisaging Constitutional Space for Aboriginal Governments."
19:1 Queens Law Journal, 95-136 at 96.
Henderson, James Youngblood, "Proving a Constitutional Right
to the Land for Aboriginal Peoples of Canada", unpublished
manuscript, prepared for the Delgamuukw National Review.
Lahey, Kathleen (1999) Are We Persons Yet? Law and
Sexuality in Canada (Toronto: University of Toronto Press),
Little Bear, Leroy (2000) "Jagged Worldviews Colliding"
in Marie Battiste (ed.), Reclaiming Indigenous Voice and Vision
(Vancouver: UBC Press) 77-85.
Lysyk, Joanne, paper for the Delgamuukw National Review.
Macklem, Patrick (1991) "First Nations Self-Government and
the Borders of the Canadian Legal Imagination." 36 McGill
Law Journal, 382-456.
________ (2000) "From Consultaton to Reconciliation: Aboriginal
Rights and the Crowns Duty to Consult," 79 Canadian
Bar Review, 252-279.
Mandell, Louise (1987), "Native Culture on Trial" in Sheilagh
Martin and Kathleen Mahoney eds. Equality and Judicial Neutrality
Martin, Sheilagh and Mahoney, Kathleen eds. (1987), Equality
and Judicial Neutrality (Toronto: Carswell).
McNeil, Kent (1997) "The Meaning of Aboriginal Title"
in Michael Asch (ed.), Aboriginal and Treaty Rights in Canada:
Essays on Law, Equality and Respect for Difference. (Vancouver:
________ "Envisaging Constitutional Space for Aboriginal Governments."
19:1 Queens Law Journal, 95-136.
________ (1998) Defining Aboriginal Title in the 90s: Has
the Supreme Court Finally Got it Rights? (Toronto: York University,
Robarts Centre for Canadian Studies).
Monture-Angus, Patricia (1999a) "To Break with the Past: Searching
for the Meaning of Self-Determination" in Journeying Forward:
Dreaming First Nations Independence (Halifax: Fernwood Publishing).
________ (1999b) "The Crowns Ability to Deny Responsibility:
The First Era - Judicial Decisions Before 1990" in supra, "Journeying",
________ (1999c) "Theoretical Foundations and the Challenge
of Aboriginal Rights" in supra, "Journeying", 40-63.
________ (1995), "The Roles and Responsibilities of Aboriginal
Women: Reclaiming Justice" in Thunder in My Soul: A Mohawk
Woman Speaks (Halifax: Fernwood Publishing).
Purich, Donald (1986) Our Land: Native Rights in Canada (Toronto:
James Lorimer), 122-123.
Razack, Sherene (1998) Looking White People in the Eye: Gender,
Race, and Culture in Courtrooms and Classrooms (Toronto: University
of Toronto Press).
Royal Commission on Aboriginal Peoples (1996), Looking Forward,
Looking Back, Volume 1 (Ottawa: Supply and Services Canada).
Russell, Peter (1997) "High Courts and the Rights of Aboriginal
Peoples: The Limits of Judicial Independence", 61: 2 Saskatchewan
Law Review, 247-276.
Smith, Linda Tuhiwai (1999), Decolonizing Methodologies: Research
and Indigenous Peoples (London: Zed Books).
Turpel, Mary Ellen, "Aboriginal Peoples and the Canadian Charter:
Interpretative Monopolies, Cultural Differences", 6 Canadian
Human Rights Yearbook, 3-45.
Walters, Mark (1993) "British Imperial Constitutional Law and
Aboriginal Rights: A Comment on Delgamuukw v. British Columbia,"
17 Queens Law Journal, 350-413 at 358.
Wilkinson, Charles (1987) American Indians, Time and the Law
(New Haven: Yale University Press).
Young-Ing, Greg (1993), "Aboriginal Peoples Estrangement:
Marginalization in the Publishing Industry" in Jeannette Armstrong
(ed.), Looking at the Words of our People: First Nations Analysis
of Literature (Penticton, Theytus Books), 185.
The URL for this essay is:
© borderlands ejournal 2002