Law, Theory and Aboriginal Peoples”(2003)

2007

Are aboriginal rights historical rights -- rights that gained their basic form in the distant past? Or are they generative rights -- rights that, although rooted in the past, have the capacity to renew themselves, as organic entities that grow and change? Section 35(1) of the Constitution Act, 1982 provides little guidance on the point, referring ambiguously to "existing aboriginal and treaty rights". In the Van der Peet case, decided in 1996, the Supreme Court of Canada characterized aboriginal rights primarily as historical rights, moulded by the customs and practices of aboriginal groups at the time of European contact, with only a modest ability to evolve. However, as a brief review of the Court's reasoning reveals, this approach left much to be desired. Nevertheless, in the decade since the Van der Peet case was decided, the Supreme Court has shown mounting signs of discomfort with the test laid down there. In a series of important decisions, it has quietly initia...

Review of Constitutional Studies, 2023

Aboriginal law in Canada is caught in a colonial double-bind. On the one hand, courts have acknowledged the pre-existing sovereignty of Indigenous peoples as the source of section 35 rights. On the other hand, the courts also find that Crown sovereignty is bundled together with legislative power and underlying title. The latter is treated as a non-justiciable presumption. This article aims to provide the judiciary with a way to deal with the double bind using the legal tools they already have at their disposal. We begin by contrasting two interpretive approaches courts use to legally characterize the constitutional relationship between the Crown and Indigenous peoples. We label these approaches as narrow and adaptive. We argue that by embracing an adaptive reading of the constitutional relationship, the courts can help clear the way for an inclusive form of treaty federalism that allows a culture of justification to flourish across diverse legalities in Canada

1985

This paper draws extensively from the works of several anthropologists, historians and lawyers, and on conversations I have had with many of the same individuals. I want to thank those whose published materials I have used so freely. The paper was prepared for seminar and conference lectures and it has infrequent citations, but the references used are cited at the end.

Canadian Journal of Law and Society, 2003

This paper focuses on the conceptual and legal problems at the centre of the Canadian Supreme Court's cultural discourse. The Court's approach to culture, "cultural distinctiveness" and "cultural rights" does not concord with current anthropological or historical conceptions of culture. With this approach Aboriginal cultural rights tend to appear "frozen in time". The Court's cultural ideas are based in part on expert testimony (from the perspective of Aboriginal peoples, amongst others), on human rights and on public opinion, but they also have their own inherent logic. They are essentially oriented toward political questions surrounding the sovereignty of the Crown and the claims of indigenous peoples to self-determination. The cultural discourse of the Court is inseparable from the tension between the liberal politics of equality and the specific rights and claims of distinct peoples.

2017

This paper argues that aboriginal rights in Canada have been greatly affected by 19 century governmental and social conflicts within the Canadian colonial state. These conflicts, largely over the ownership of land and regulatory authority between the federal government and the provinces necessarily impacted the First Nations on the ground while affecting how their legal claims were recognized and implemented. In particular they impacted the legal efficacy of treaty rights, the scope of rights recognised by the courts and an expansive legally protected notion of indigenous sovereignty. As a result, the rights now protected under sec. 25 and 35 of the Constitution Act 1982 are more restricted than the text might imply.

This work applies a sociological lens to juridical practice in order to illustrate the tendency of law to lag behind extra-juridical historical phenomena, and to examine how this has influenced both the occurrence of, and the nature of, moments of doctrinal productivity in Aboriginal law. In effect, historical practices of colonization in the common law world have more often than not outpaced the law which would sometimes be called upon to adjudicate their legitimacy. The result is that the juridical field has been Preface: A Duck, and Other Motivations While there are more than eighty cases which figure in this critical history of Canadian Aboriginal law, there is at least one pivotal case which goes uncited. In our youth, my cousin and I were charged with the illegal hunting of a duck on one of the lakes adjacent to our family farm. The farm is on the outskirts of Lake Manitoba First Nation, in the western portion of the Interlake region of Manitoba, and has been for all my life a joint venture between my grandparents, parents, uncles, and aunts. It still is for those still living. Spences, Monkmans, Pottingers, and Dumas-the maternal side of my family has roots that run deep in the region, reaching back to before Manitoba or Canada were created. Each of these family lines had signed Métis scrip in the nineteenth century, after Manitoba was brought into existence through negotiations between the Red River Métis and the Crown in right of the Dominion of Canada. (As per Nicole St-Onge's suggestion, however, we would do well to be mindful of the diversity, complexity, and fluidity of Métis identity and history. Many of the Métis in the region of Lake Manitoba and Lake Winnipegosis had close ties to the Saulteaux or Cree populations and often shared with them both language and lifestyle 1-to this I would even add a number of shared surnames and portions of family trees. Our Spences and Monkmans, for their part, were speakers of Saulteaux, or Anishinaabemowin.) The region is somewhat northern for farming, boasting at times more forest, lake, or wetlands than open prairie or meadow. No cash crops are sown, it is mostly wild hay 1 [1992] HCA 23, 175 C.L.R. 1 [Mabo (No 2)]. 2 The reader may have already noticed that I use the term Indigenous and Aboriginal interchangeably when describing those groups colonized and dispossessed within former British colonies such as Australia, Canada, and the United States. There is generally a distinction, however, when employing these terms as adjectives to describe types of law. I offer in this work a critique of Aboriginal law, a body of common law jurisprudence which engages with and purports to resolve the controversies and conflicts that arise between colonizer and the colonized in the settler state. Indigenous law, on the other hand, is often used to refer to customs, institutions, and systems of regulation within Indigenous societies which are analogous in function to the Western concept of law yet culturally distinct in their specific manifestations. 3 Ibid., at para 97. 4 However, it should be noted, and will be discussed below, that no title claims were directly litigated by an Aboriginal plaintiff until the 1970s. The earlier history of Aboriginal rights and title jurisprudence in former British colonies contains numerous examples of the legal-political fate of Aboriginal peoples being radically altered by the obiter dicta and rationes decidendi of someone else's litigation.

Osgoode Hall Law Journal

This essay presents and contrasts two narratives on the past and future of the law of Aboriginal title. The first narrative, drawn from the Final Report of the Royal Commission on Aboriginal Peoples, grounds the law of Aboriginal title in inter-societal norms that enabled the mutual coexistence of colonists and settlers in North America. It locates Aboriginal territorial dispossession in colonial policies and practices that failed to conform to the spirit of mutual coexistence, and calls on governments to provide Aboriginal people with lands and resources necessary for self-sufficiency. The counter-narrative describes the law of Aboriginal title as a relatively minor exception to a more general legal legacy of Aboriginal territorial dispossession. It argues that the law should acknowledge that it has produced unjust distributions of title in Canada. It calls on the law of Aboriginal title to allocate proprietary power to Aboriginal people in ways that force governments to introduce reforms similar to those recommended by the Royal Commission.

Osgoode Hall Law Journal, 1998

Anthropologica, 1998

BC STUDIES an anonymous letter (which has been call for Euro-Canadian accountcirculating around First Nations ability: his work is a valuable resource education for the past twenty years) for those who seek a comprehensive purportedly written by "the mother of overview of Canadian residential an Indian child." Miller's conclusions schools,

sydney.edu.au

It has been a political imperative of the current Australian Federal Government to respond to what are seen as the excesses of previous Federal policy in the area of Indigenous affairs. The discursive construction of "the pendulum having swung too far" in the direction of Indigenous Australians has legitimated intervention (Howard 1997). Political objective has been to wind back the perceived 'benefits' that Indigenous rights and self-determination had unfairly bestowed on Indigenous Australians. Reform is based on the assertion that all Australians be treated equally, ensuring that no one group of Australians is privileged over another. In the paper, I establish that the discursive construction of separate rights as privilege achieves a particular end. Here an essentialising epistemological whiteness operates through the denial of separate rights. Whiteness as a set of discursive practices renders as 'natural' what is an historical and contingent social construction.

Alta. L. Rev., 1997

The authors trace the development of the use of the term sui generis to describe Aboriginal legal rights, noting that this is not in fact a recent phenomenon. They explain the doctrine as a balance between common law and Aboriginal conceptions, acting as an aid to the development of the common law in a manner which accommodates cultural differences and unique Aboriginal legal rights. The authors critically analyze recent judicial employment of the doctrine, and offer suggestions as to how it could best be employed to reconcile unique Aboriginal issues with the framework of the common law. Les auteurs montrent comment la locution sui generis a eti utilisde pour dcrire les droits autochtones en common law, et notent que le ph~nomine n 'est en fait pas ricent. Selon eux, la doctrine rialise un iquilibre entre la common law et les conceptions autochtones, et permet d~laborer la common law en tenant compte des diffirences culturelles et des droits ancestraux uniques des peuples autochtones. Les auteurs font une analyse critique de lemploi ricent du droit sui generis par les tribunaux et suggrent comment il pourrait le mieux servir d concilier les questions autochtones et le cadre de la common law.

Radical Philosophy 101 (May/June 2010), pp. 5 – 17.

2016

In contrast to settler colonial legal understandings of Aboriginal rights and title as existing within the Canadian state, BC Aboriginal political actors in the 1970s and 1980s relied on philosophical notions of Aboriginal rights as stemming from the inherent, pre-colonial sovereignty and nationhood of First Nations peoples. These concepts run throughout the history of Aboriginal experience and remained foundational to the discourse of Aboriginal sovereignty in British Columbia during debates surrounding the patriation of the Canadian constitution. Existing Canadian historiography has located Aboriginal activists as key and yet marginal figures in the constitutional debates, while a broad range of interdisciplinary scholarship has helped us understand the concept of Aboriginal sovereignty in theory. Building on these insights, our work shifts Aboriginal people into the foreground and emphasizes their centrality in the patriation debates, which, as an example, grounds and historicize...