Constitutional recognition of aboriginal and treaty rights

A new framework for managing legal pluralism in Canada

Bibliographic Data

ID14799764
AuthorsGhislain Otis (0000-0002-2563-9498, Ottawa University, corresponding author)
Year2014
Volume46
Issue3
Pages320-337
Publication date2014-09-02
Peer ReviewedYes
Open AccessNo
TypeARTICLE
VenueThe Journal of Legal Pluralism and Unofficial Law (JOURNAL)
Journal identifiersISSN: 0732-9113 • E-ISSN: 2305-9931
PublisherInforma UK Limited (PUBLISHER • GB)
DOI10.1080/07329113.2014.986951
OpenAlexW2036601414
LanguageEN
Citations received5
References cited11

In Canada, section 35 of the Constitution Act, 1982 states that "The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed". It was expected that section 35 would be the foundation for a new approach to managing the coexistence of indigenous and non-indigenous law as a key element of legal pluralism in Canada. This paper assesses the extent to which the implementation of section 35 by courts, governments and indigenous peoples has so far actually fostered the constitutional recognition and protection of indigenous legal orders in a way that departs from the colonial approach. After a detailed survey of aboriginal rights jurisprudence and recent treaty-making practice, the author concludes that the advent of section 35 has not fundamentally altered the state's traditional unwillingness to let non-state indigenous law settle inter-societal distributive issues that are deemed fundamental to the political and economic orders put in place as a result of the assertion of Crown sovereignty over indigenous peoples and their land.Keywords: aboriginal and treaty rightsindigenous peoplesCanadaindigenous lawlegal pluralism AcknowledgementsThis research was undertaken, in part, thanks to funding from the Canada Research Chairs program.Notes1. As underscored by McNeil (Citation1997a, 135–136), "[t]his apparently means that Aboriginal peoples' rights to their traditional lands are not derived from the legal systems which the Europeans imposed on them".2. For example, legislation in the Northwest Territories, Nunavut, the Yukon and British Columbia recognizes customary adoption.3. For an introductory presentation of various indigenous systems in Canada, see Borrows (Citation2010, 23–106).4. The question whether the exercise of an aboriginal right to self-government is subject to the Canadian Charter of Rights and Freedoms has been intensely debated among academics. It will not be addressed in this article. For a recent discussion, see Grammond (Citation2013, 428–438).5. For an early discussion of the sources of law with respect to aboriginal rights, see Otis (Citation1999).6. This was recently reiterated in Tsilhqot'in (Citation2014, par. 10). See also Roberts (Citation1989, par. 340) and Guérin (Citation1984, par. 376–379).7. Aboriginal title is a sub-category of aboriginal rights related to ownership and control of the land: Van der Peet (Citation1996, par. 33); Adams (Citation1993, par. 25–29) and Delgamuukw Citation1997, par. 111.8. See also Flanagan (Citation1998, 305–307) and Lambert (Citation1998, 259–263).9. Commentators have severely criticized the Supreme Court's essentialist and backward-looking approach. See, in particular, Borrows (Citation1997), Barsh and Youngblood Henderson (Citation1997), McNeil (Citation1997b), Otis (Citation1997) and Rotman (Citation1997).10. For example, in Pamajewon (Citation1996) the Court stated, at par. 28, that even though the evidence "does demonstrate that the Ojibwa gambled, it does not demonstrate that gambling was of central significance to the Ojibwa people".11. Professor Slattery rightly spoke of land title as a generic right (Citation1998, 71): "A generic aboriginal right is a right of a standardized character that attaches to all Aboriginal groups that meet certain criteria. The basic contours of a generic right are determined by general principles of Canadian common and constitutional law rather than historical aboriginal practices, customs and traditions."12. Professor Flanagan (Citation1998, 318–321) rightly underscores the parallels existing between the justification offered by Justice Lamer of the inherent limit to aboriginal title and the understanding that some aboriginal jurists have of pre-colonial aboriginal land regimes.13. The parternalist and ethnocentrist nature of those "inherent limits" to the aboriginal title have been, and rightly so, denounced by several analysts. McNeil (Citation1998b), 11–13; Bartlett (Citation1998, 386–388).14. Thus, Justice Lamer, in Delgamuukw (Citation1997, par. 148), wrote that: "if, at the time of sovereignty, an aboriginal society had laws in relation to land, those laws would be relevant to establishing the occupation of lands which are the subject of a claim for aboriginal title. Relevant laws might include, but are not limited to, a land tenure system or laws governing land use."15. This seems to have been admitted by an adherent of this theory who rightly underscored that "while Aboriginal law can be used as evidence of exclusive occupation, the content of Aboriginal title is not determined by that law" (McNeil Citation1998b, 289).16. It is clear from the wording of section 35(1) of the 1982 Constitution Act, which recognizes and affirms the existing rights of aboriginal "peoples" that aboriginal rights are group rights. Moreover, the Supreme Court confirmed that treaty rights to hunt were collective rights: see Sundown (Citation1999) 1 SCR 393 (SCC) at par. 36. On the collective nature of aboriginal rights, see Saranchuk (Citation1997).17. In Tsilhqot'in Nation, the Court reiterated that title gives the group the right "to control how the land is used", at par.75.18. The Supreme Court has so far not clearly ruled that a generic aboriginal right to self-government is recognized under section 35. See McNeil (Citation2007), 129.19. Similarly, in Delgamuukw (Citation1997, par. 166, 168), the Supreme Court stated that the aboriginal title included the right to choose which land uses were allowed. An author gave several examples of collective matters with regards to the exercise of the aboriginal title: "to allocate the use of the land to which aboriginal title extends; to decide on utilization practices; to determine which resources should be harvested and by whom; to participate in the process of consultation that would lead to justification for infringement; to agree to the amount of compensation under infringement and justification and to decide upon surrender of the land, if that is the wish of the people". See Lambert (Citation1998, 268).20. For a general discussion see Grammond (Citation2013), 286–297.21. See especially Sundown (Citation1999 par. 36). This does not prevent such rights from giving rise to individual interests that are sufficiently specific to allow for an individual cause of action, see Behn (Citation2013, par. 32–35).22. The Court points out that "the treaty rights do not belong to the individual, but are exercised by authority of the local community", Marshall (1999b), par. 17.23. Leave to appeal denied by the Supreme Court, [2013] CSCR. no. 144.24. The Agreement clearly states that the term "law" cannot be interpreted as including the Ayuukhl Nisga'a or Ayuuk which are Nisga'a traditional laws and practices. See, CitationNisga'a Final Agreement, p. 8. Also see CitationConstitution of the Nisga'a Nation, s. 62.25. Section 27; 32(2). These provisions are in conformity with the Agreement, c. 11, art. 9 (1) which states that the Nisga'a Constitution must "provide for the role of the Nisga'a elders, Simgigat and Sigidimhaanak in providing guidance and interpretation of the Ayuuk to Nisga'a Government".26. CitationMaa-nulth First Nations Final Agreement, s. 26.1.1; CitationTsawwassen First Nation Final Agreement, c. 21 s. 2.c; CitationYale First Nation Final Agreement, s. 25.1.1 d; CitationLheidli T'enneh Final Agreement, c. 3 s. 2.b; CitationTla'amin Final Agreement, c. 22 s. 1 c, CitationTlicho Land Claims and Self-Government Agreement, s. 1.1.1, s.v. "Tlicho First Nation", "Tlicho" et "eligible voter".27. CitationMaa-nulth First Nations Final Agreement, s. 13.17.1; CitationTsawwassen First Nation Final Agreement, c. 16 s. 67; CitationYale First Nation Final Agreement, s. 3.15.1; CitationLheidli T'enneh Final Agreement, c. 17 s. 61; CitationTla'amin Final Agreement, c. 15 s. 71, CitationTlicho Land Claims and Self-Government Agreement, s. 7.6.2.28. Section 17.3.4 stipulates that: "The Labrador Inuit Constitution may provide for the following matters: (...) e) the recognition of Inuit customary law and the application of Inuit customary law to Inuit with respect to any matter within the jurisdiction and authority of the Nunatsiavut Government as set out in the Agreement on condition that any recognition or application of Inuit customary law shall be proclaimed, published and registered in accordance with part 17.5."29. Labrador Inuit Constitution, section 9.1.5: "The Nunatsiavut Assembly may make laws for the codification of Labrador Inuit customary law and may give recognition and legal force and effect to a code of Labrador Inuit customary law."30. Section 9.1.6 of the Labrador Inuit Constitution provides that: "Labrador Inuit customary law may be recognized by any judicial or administrative authority and in any proceeding the existence and content of any Labrador Inuit customary law may be established: (a) if the Labrador Inuit customary law has been codified under section 9.1.5, with reference to the code; or (b) as a question of fact in relation to the specific matter or matters at issue in the proceeding.31. Section 9.1.4 of the Labrador Inuit Constitution provides that: "If a Labrador Inuit customary law applies to a matter for which an Inuit law has been made: (a) both laws are equally operative to the extent that they do not conflict with each other; and (b) Labrador Inuit customary law will prevail to the extent of any conflict with an Inuit law unless the Inuit law expressly extinguishes, replaces or varies the Labrador Inuit customary law

Epistemology · Law and economics · Legal pluralism · Legal realism · Legal research · Pluralism (philosophy · Political science · Sociology · Treaty · Indigenous Peoples' Rights and Law · Judicial and Constitutional Studies · Law · Multicultural Socio-Legal Studies · Philosophy

Tools

Open DOISci-Hub