Corps de l’article

Introduction

Since coming into force, section 35 of the Constitution Act, 1982 has given rise to a wealth of commentary. The courts have identified its aims. They have articulated and applied substantive tests for the identification of its protected rights, and for assessing interference with the same. Explanations abound that these rights are communal, and not individual, in nature. Notably, though, a considered discussion of the particular communities captured by the provision is missing. Exactly which groups’ rights are recognized and affirmed by section 35?

A comprehensive theory of Aboriginal rights must, by necessity, tackle this problem. Beyond theory, the issue is also of great practical significance. With each decision of the Supreme Court of Canada, new claims are advanced, sometimes by non-traditional or even marginal groups. The governmental duty of consultation, as well as other efforts at reconciliation like the treaty initiative presently underway in British Columbia,[1] is dependent on the ability to identify the proper interlocutors.

To date, the clearest articulation of the judiciary’s approach to the issue is found in R. v. Powley, which arguably concerned only Metis communities.[2] In the context of a claim to the protection of section 35 made by individuals in Sault Ste. Marie, the Supreme Court of Canada discussed the general nature of a rights-holding Metis group. It went on to identify “three broad factors as indicia of [individual] Métis identity”: (1) self-identification, (2) ancestral connection, and (3) acceptance by the modern community.[3] In theory, those indicia serve to verify the validity of a particular individual’s claim to the benefit of the communal rights.

In my view, it is possible—and preferable—to seek a common approach to the issue in respect of all collectivities that hold rights under section 35. There are aspects of the Powley approach that I find problematic, and I would not endorse it as the basis for a “pan-Aboriginal” test. I do, however, agree with the Court’s reasoning that issues of “groupness” and issues of membership are inseparable. Indeed, there is an essential interdependence between the two: the criteria governing how individuals adhere to a group bespeak a particular conception of the nature of that group; likewise, the acknowledgement of a community necessarily comprises an understanding of the characteristics shared by its members. Discussion must begin with the question: what is it that we are looking for?

I. The Constitution’s Peoples: The Matter of Inquiry

By the express terms of section 35(2), the Aboriginal peoples of Canada to whom the constitutional promise is made “include[] the Indian, Inuit and Metis peoples of Canada.”[4] Notoriously, there is one understanding of what “Indian” means in section 91(24) of the Constitution Act, 1867[5] (where it includes the Inuit[6] and may also include the Metis[7]), another in the main legislative instrument of federal Indian policy enacted pursuant to that power,[8] another in the Natural Resource Transfer Agreements (NRTAs) incorporated in the Constitution Act, 1930,[9] and yet another in the Constitution Act, 1982.[10] Moreover, there is no set understanding as to what identifies the Inuit as a people for the purposes of Canadian law.[11] In these circumstances, from a definitional standpoint, it is difficult to argue that the Metis implicate discrete issues that have little purchase vis-à-vis the other Aboriginal peoples.[12]

Without a doubt, all groups recognized under section 35 must be Aboriginal. But what does this mean in the context of the Canadian constitution? What is it that compels recognition of these collectivities as holders of particular rights, and distinguishes them from other elements of the Canadian “multicultural mosaic”?

In my view, considering the rights section 35 recognizes and affirms in their historical context, “Aboriginal” must be understood to mean of or related to a social order that pre-existed and survived the arrival of the dominant European order. The apparent triteness of this statement is misleading. Indeed, it cannot be understood without reference to some fundamental propositions concerning the origins and functioning of the doctrine of Aboriginal rights.

A. Mediation of Conflicting Claims

It is now well accepted that the North America encountered by early explorers and colonists was a continent inhabited by Aboriginal societies—social systems with normative (i.e., customary, legal) orders governing the relations between individuals, family groupings, and other social units. These social systems also governed relations between the people and the land, animals, and their natural environment.[13] To this milieu, the Europeans brought their own normative conceptions.[14]

Hypothetically, had the native and newcomer normative orders mirrored each other exactly—or had either party entirely abandoned its own norms in favour of the other’s—there would have been no need for a doctrine of Aboriginal rights. The newcomers would have had immediate knowledge of, for instance, the relationship between the Aboriginal peoples and their lands. Inter-communal disputes, like intra-communal ones, could have been solved on the basis of a common conception of right. As it was, however:

At the moment of their encounter, Aboriginal and non-Aboriginal societies possessed their own sets of norms, each created in ignorance of the other. They constituted autonomous normative universes, without a common justice and indeed without intercommunal norms capable of regulating their relations with each other.[15]

Where the interests of the native and newcomer societies diverged—for example, in contests over land—the maintenance of peace rested upon the emergence of a normative framework to regulate difference, a “modus vivendi”.[16] In this pursuit, the early Aboriginal/non-Aboriginal relationship was characterized by a creative, inter-societal rule-making process. This is certainly not to assert or imply historical circumstances of uniform harmony; I am concerned here with the method by which the groups created a common framework and not with an assessment of the legality or fairness of any particular event.[17] Each group’s behaviour in this rule-generating process was doubtless shaped by its own conception of right. Importantly, however, the result cannot properly be said to have been dictated by either group: the process was dialogical, not monological. Accordingly, the resulting scheme of rules is truly “indigenous” to the relationship between the Aboriginal and settler societies.[18]

In early colonial practice and in the absence of any conflict, the respective Aboriginal and non-Aboriginal groups were generally left unrestrained in their capacity to assert and live by intra-communal norms.[19] The continuation of indigenous legal systems thus does not rely upon any principle of European law. Rather, it flows from the central role these systems played in the identities of the Aboriginal peoples who were unwilling to abandon them.[20] Consequently, as intercourse between the Aboriginal and non-Aboriginal societies increased, so too did the need for inter-societal recognition of those internal norms. The 1867 decision in Connolly v. Woolrich[21] provides a signal example.

Connolly concerned the validity, in Lower Canada, of a mariage à la façon du pays conducted under Cree custom in the Athabaska Country, between European fur trader William Connolly and Susanne, the stepdaughter of a Cree chief.[22] Upon the deaths of those parties, their eldest son, John, sued for his share of the father’s estate. In order to adjudicate John’s claim, the Quebec courts inquired into the relevant Cree customary law, which was proven at trial just as one would prove foreign law in a typical private international law matter.[23]

Connolly illustrates at least three points of importance to the present discussion: the resilience of the Cree marriage regime; the adjustments European traders who lived among and intermarried with the Cree people made to this regime; and the corresponding need for the newcomers’ courts to develop a method to recognize Aboriginal laws—to interpret them and to assign them corresponding force under the legal regime applicable in the courts—when these were squarely raised in disputes before them.[24] This latter point is analogous to the process that unfolds when modern Aboriginal rights are engaged, for instance, in opposition to fish and game legislation. In essence, the task for today’s court is to interpret the Aboriginal custom, to determine whether or not the legislative provision at issue infringes this custom, and, if so, to decide how the infringement is to be resolved. The third prong of the Sparrow infringement test[25] provides a fine illustration of this, inasmuch as it acknowledges that Aboriginal rights are not uniquely concerned with priority over land and resources. Indeed, an infringement may also occur where the impugned legislative scheme “den[ies] to the holders of the right their preferred means of exercising that right.”[26] In other words, section 35 may be engaged where there is a clash between the types of conduct that are permitted under Aboriginal and non-Aboriginal normative systems (for example, in their respective approaches to resource regulation). Here too, through repeated engagement and adjustment, the doctrine of Aboriginal rights serves to mediate between the diverse customs of the respective societies.

In sum, the doctrine of Aboriginal rights requires, as a condition precedent to its application, the existence of competing conceptions of the appropriate normative order.[27] As a practical matter, such a divergence can only occur in an inter-societal context. This explains why section 35 rights are by nature collective: the focus is rightly on Aboriginal peoples (groups), and not Aboriginal persons (individuals).[28]

B. Five Attendant Observations

With the foregoing background, a number of subsidiary conclusions follow. Some of these challenge aspects of prevailing Aboriginal law orthodoxy. I present five observations here and will elaborate further in the remainder of this paper.

1. The Error of Focusing on Particular Customs and the Effect of “Outside” Influences

One cannot overemphasize the important distinction between, on one hand, the particular manifestations of a group’s social character at a given point in time and, on the other hand, the vital and adaptive societal whole. The precise character of any group’s normative order may (indeed, almost certainly will) change over time. Sometimes it may change profoundly. A society, after all, is inherently protean. It is also reactive, to both “internal” and “external” stimuli. The fact that certain changes may have been precipitated or influenced by another group’s norms or practices does not in itself speak against the continued existence of the first group’s distinctive normative system. Indeed, it speaks to its vitality.

On account of this, it makes little sense for an inquiry into Aboriginal rights to focus upon particular customs that may have prevailed in the Aboriginal collectivity at any historical moment. Nor is it obvious why changes instigated by an “outside” catalyst ought to be treated differently from those changes that originate from within the group itself. It is the existence of competing normative orders, rather than their content at a given point in time, that matters. Neither the Aboriginal nor the non-Aboriginal collectivity should be presumed or expected to have remained static since that given time or, for that matter, to have been static prior to that time.

2. The Fallacy of the Essential “Aboriginal” Quality

As a consequence of the first observation, there is no basis upon which to require that a right exhibit some essential “Aboriginal” quality to achieve section 35 protection. In principle, it should be enough to establish that the right arises from the need to reconcile norms of non-Aboriginal and Aboriginal peoples. I shall return to this topic in the concluding section of this paper.

3. Contact Is an Inappropriate Defining Date

It also follows that there is no justification for privileging the date of contact as the time at which a specific set of Aboriginal rights arose.[29] Indeed, it is not merely the fact of indigenous occupation prior to contact that explains the doctrine of Aboriginal rights. As Justice Judson acknowledged in Calder: “[T]he fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means ... ”[30] His now-famous statement recognized not only the Aboriginal peoples’ prior occupation of what is now Canada but also, crucially, that these peoples presented distinct normative orders with which the newcomers had to reconcile.

The fact that European arrival and concepts such as “time immemorial”[31] are often used as reference points must not obscure the inquiry: the notion of “effective European control”[32] would seem to capture much more accurately and pragmatically the nature of Aboriginal rights, since it places emphasis on the period in which substantial normative conflict was liable to arise.

4. Metis Non-exceptionality

With respect to the rationale for constitutional protection, the situation of the Metis is not, as is sometimes suggested,[33] entirely dissimilar from that of the other Aboriginal peoples. The Metis emerged as a distinctive people in what became the Canadian West,[34] living according to their own distinctive customs prior to large-scale European settlement. The eventual arrival of greater numbers of non-Aboriginal persons conflicted with the Metis way of life, motivating the Metis to set up a provisional government in 1869 and to negotiate with Ottawa for the Red River area’s entry into Canada. In a manner roughly analogous to the treaty-making process, the Metis traded their military authority for the promise of a land base in the new province.[35]

Given such important commonalities with the other Aboriginal peoples, there is no reason in principle why the unique ethnogenesis of the Metis people ought to preclude a theory of Aboriginal rights that encompasses all of the peoples mentioned in section 35(2).[36]

5. Aboriginal Agency

Finally, the inter-societal origins of Aboriginal rights bring particular emphasis to the indispensable role and continual engagement of Aboriginal agency. The participation of Aboriginal peoples in the development of the law was not limited to the initial formation of the doctrine; it included its survival and subsequent enshrinement in the constitution. In spite of the often oppressive legislation and policies of successive governments, the Aboriginal peoples of Canada continue to assert and live according to distinctive legal systems that represent a fundamental aspect of identity for many of their members. In addition, collective resistance to initiatives such as the Trudeau government’s white paper,[37] along with court challenges such as Calder, helped to regenerate a once-moribund Aboriginal/non-Aboriginal dialogue, ultimately leading to the inclusion of Aboriginal rights in the Constitution Act, 1982.

Acknowledging this history assists us in understanding section 35 as a promise—a deal—whereby the non-Aboriginal population of Canada has undertaken to restructure its relationship with the Aboriginal peoples. This does not involve a theoretical “social contract”, but rather an acceptance that the relationship going forward will be better served by a return to the principles that animated the modus vivendi of the past.[38] “[W]e are,” in the pithy words of Chief Justice Lamer, “all here to stay.”[39] The Canadian state acknowledges this in its pledge to honour the inter-societal norms that facilitated the settlement and foundation of this country.[40]

C. The Matter of Inquiry: A Summary

In brief, Aboriginal rights are rooted in the reality that the indigenous peoples and non-indigenous Canadian society are bound together in a special relationship. This relationship may be described as “political”, “jurisdictional”, or even “federal”. Each of these terms underscores the fundamental point that section 35 singles out collectivities because of their connection to the normative orders that preceded those of the European settler communities. The doctrine of Aboriginal rights in this way serves to mediate the parties’ separate “claims, interests and ambitions.”[41]

The word “Aboriginal”, then, should not be taken to speak to the specific content of any given norm (on a “micro” level), but rather it must be understood as a reference to social and legal systems (from a “macro” perspective) that maintained their viability in the face of those that were subsequently introduced and came to dominate in Canadian society. In the following section, I consider how the law ought to approach the task of identifying which groups fit this conception of Aboriginality.

II. Possible Approaches to Community

What qualities must a collectivity exhibit in order to be recognized under section 35? To get at this fundamental issue, and to enable us to reconsider what the constitutional promise ought to entail, we need to inquire critically into the competing conceptions of Aboriginal groupness that may obtain in Canadian law.

A. Statutory or Executive Recognition

One extreme position—that community is contingent upon governmental benison—can be easily dismissed. I allude here to the simple enumeration, by Parliament or the executive, of specific groups as holders of section 35 rights; for instance, as Parliament authorizes the Governor-in-Council to declare certain groups subject to the Indian Act (a process which is itself mired in controversy).[42] Admittedly, this is not the only (or even the most obvious) way in which a statutory recognition scheme might function. In Part II.C, I shall discuss a more ostensibly objective approach, which would cover, for example, a legislative attempt to set indicia of community that groups must meet in order to be recognized.

1. Constitutional Invalidity

At the outset, it bears reminding that as a matter of law, pure statutory recognition would violate the elementary principle of constitutional law that prohibits Parliament from controlling the meaning of terms used in the constitution. Prior to the 1982 patriation, the federal power to legislate with respect to “Indians, and Lands reserved for the Indians”[43] did not carry with it the capacity to define (i.e., limit) the scope of these terms, because the BNA Act, being a statute of the Parliament of the United Kingdom, was only susceptible to amendment by that body. The Canadian Parliament remained competent to create whatever legislative categories it wished for the purposes of implementing specific governmental programs,[44] but it could not accomplish what would effectively be a unilateral amendment of the imperial statute by, for example, disclaiming its jurisdiction with respect to the Inuit people.[45]

All the more, since the recognition and affirmation of Aboriginal and treaty rights in the Constitution Act, 1982, it clearly does not lie in any legislature’s hands to reserve these rights to select groups. Any such attempt would be invalid.[46] Indeed, it would be utterly incompatible with the obligations inherent in section 35. Moreover, as discussed above, the doctrine of Aboriginal rights was born and finds continued sustenance in the reconciliation of inter-societal normative difference. This is not something that one party to the relationship can unilaterally will out of existence, by legislative fiat or other means.

This raises a related question of how to account for the historical effects of statutory recognition.

2. Accounting for the Historical Effects of the Indian Act

Aboriginal communities (unlike Indian Act bands) existed long prior to European arrival, and it was the former whose interactions with the newcomers gave rise to the doctrine of Aboriginal rights. This fact has prompted one judge to suggest that “a distinction must be made between an Aboriginal community to which there may be Aboriginal entitlements and a Band” and that “[t]he scheme of the Indian Act may be said to be in conflict with some Aboriginal rights of some communities.”[47] The pillars of that argument would appear relatively solid: the various indigenous nations each held an inherent right to self-define and set their own rules of membership. The operation of the successive Indian Acts has not extinguished this right,[48] but it has clearly and unjustifiably infringed it.[49] Taken to an extreme, the argument might be said to support the position that Indian Act bands, as statutory creations, are not entities that are capable of exercising Aboriginal rights.[50]

However, we should guard against a peremptory denial of history. One has to accept that the Indian Act has had a significant impact upon the present constitution of many collectivities. For example, the statutory band structure may have entirely superseded a group’s traditional institutions. In instances like this, it is exceedingly difficult to identify a modern successor to the original community apart from the Indian Act band. As deplorable as these legislative impositions have often been, the changes they have effected may only be reversible at great cost and upheaval to the Aboriginal communities themselves.[51] In this connection, we ought not to imply that there existed a pristine form of pre-contact “Aboriginality” that, once lost through legislative transformation, forecloses the recognition of section 35 rights.

a. Oregon Jack Creek

Consider the Oregon Jack Creek Indian Band v. C.N.R. litigation.[52] In that case, the chiefs of numerous bands in the British Columbia interior brought a representative action to restrain the defendant railway company from “double tracking” portions of its line along the Thompson River. The chiefs relied in part upon claims of Aboriginal title. When the railway challenged the chiefs’ authority to bring the action on behalf of the band members, they sought to amend their pleadings to claim relief not only on behalf of the members of the bands, but also on behalf of the members of the three nations that occupied the river system when the Crown first asserted sovereignty over the province.[53] The motions judge’s refusal to grant the amendments was overturned on appeal. For the court, Justice Macfarlane wrote:

In my opinion, the date at which it must be shown that there was an organized society occupying the specific territory over which the plaintiffs, as descendants of the members of that society, now assert aboriginal title is the date at which sovereignty was asserted by the Europeans. The society need not have been what we now regard as a legal entity, and the descendants of that society need not, in order to have status to bring an action, prove that such a legal entity now exists.[54]

This portion of the Oregon Jack case would support the notion that a group, which happens to be an Indian Act band, ought not to be precluded from asserting and exercising the section 35 rights of its pre-Indian Act predecessor(s).[55] It follows—paradoxically, but in my view not contradictorily—that an Indian Act band might invoke its status under the legislation as the foundation for its ability to exercise constitutional rights, then employ those rights in an attack on the constitutionality of that same legislation. Such an instance has in fact occurred.

b. Sawridge Band

Shortly after the adoption of Bill C-31,[56] representative actions were brought on behalf of six bands in Alberta seeking a declaration that the legislation infringed section 35 and was of no force or effect.[57] The Crown sought to strike the statement of claim, among other reasons, for the fact that the individual plaintiffs could not sue on behalf of all the members of the various bands as statutorily defined. That is, by virtue of the Bill C-31 changes, the bands included the very persons whose band membership the plaintiffs sought to challenge. Justice Strayer held:

[A]boriginal rights are communal rights and it is therefore appropriate that those persons who claim to belong to the relevant community to which the right adheres should be joined as plaintiffs in an action to vindicate those rights. It is fundamental to the case of the plaintiffs that the aboriginal right in question here—the right of each band to control its own membership—is one which adheres to the group as it was constituted before the coming into force of the amendments on April 17, 1985. The plaintiffs are certainly entitled to frame their action on that basis and it will remain to be seen whether they can make out their case in fact or in law. If they are able to do so, it will emerge that the bands as they describe them in the amended statement of claim are the legal bands.[58]

There is no incoherence in acknowledging the historical role of legislation in the construction of the modern community while simultaneously encouraging the modern group’s ability to escape from the imposed regime.[59] What is of utmost importance for the purposes of section 35 is the group’s ongoing role in providing a normative framework to its members. This cannot merely be legislated into or out of existence.

B. Unilateral Declaration by the Aboriginal Community

Let us consider, then, the diametrically opposed situation, in which a group’s assertion of rights-holding status is taken as sufficient to prove the same. Under this view, if a group were to declare its status and insist on corresponding recognition, it would be improper for persons outside the professed collectivity to pass judgment or, for that matter, to do anything but accede to the demand for recognition. In some respects, this may be the logical extension of the proposition that one ought to defer to a group’s assessment of its membership. Here, however, deference purports to occur one step prior. Instead of manifesting itself as an assertion of control over membership, the group’s right to define itself is a call on behalf of would-be members for recognition as a community—with all of the resulting appurtenances.[60]

A declaration of rights-holding status will often provide cogent evidence that the group in question does in fact merit the designation. Without having to adopt the view that this type of subjective manifestation is sufficient to form the very raison d’être of the group, one must nevertheless take notice that the individuals concerned have exhibited a strong belief that, for reasons that lie behind the assertion, they form a particular and unique collective. I include in this discussion the situation in which persons come together in a modern representative association, such as the Ontario Métis and Aboriginal Association (OMAA) and the Métis Nation of Ontario (MNO) implicated in Powley.[61] Such organizations do perform a significant declaratory function. As the various courts ruled in the Powley proceedings, while their existence might not by itself provide sufficient proof of community, their establishment—and the level of importance that their members attribute to them—can give a strong indication of the sort of subjective connections that sustain important social groups.

In principle, a declaration ought to be given a lot of weight. Indeed, giving effect to an express demand for recognition might even be the only way to avoid unduly colouring the matter with the vagaries of power. I do agree (and argue below) that community must have an intrinsically subjective aspect. But when it comes down to it, the notion that a group could unilaterally declare its rights-holding status, and that this alone would bind others to treat it accordingly, involves misplaced deference. There are, in my view, at least two basic weaknesses in such an approach. First, it provides no control over, and may in fact encourage, questionable claims. Second, it places too much stock in the speaker and is thus too subjectivist—too reliant upon the authority of the declarant.

1. The Effect of Questionable Claims

There are two dimensions to the first concern: one is symbolic and the other is material. Consideration of certain events following the 1999 Supreme Court of Canada decision in Marshall will help to illustrate both dimensions.[62] In that case, the Court recognized a limited Mi’kmaq treaty right to trade in the products of traditional fishing and hunting activities. When, in the wake of the judgment, Mi’kmaq persons in places like Esgenoôpetitj (Burnt Church, New Brunswick) attempted to start up lobster fisheries during a period that was closed to non-Aboriginals, they were met with hostility. The situation descended into pandemonium, beginning with the destruction of property and continuing with threats—and then actual instances—of physical violence.

In the midst of all this, a number of ostensibly Aboriginal organizations appeared in New Brunswick, issuing cards that professed to grant membership in rights-bearing communities.[63] Before long, persons hunting on the authority of these cards were apprehended by provincial conservation officers, with many of these cases proceeding to trial.[64] Generally, the accused individuals were able to provide evidence of self-identification as Aboriginal persons (although recent), Aboriginal ancestry (although distant), and community acceptance (by the card-granting body). In none of the cases, however, did the courts find that the alleged communities actually had the claimed section 35(2) status.

It is hard to quarrel with the conclusions reached in these cases. In fact, with respect to one of the groups alleged in court to represent a Metis community, the Rising Sun Community Restigouche West/Communauté Soleil Levant, the papers filed upon registration of the society’s name made no mention of a Metis connection.[65] More to the point, the evidence simply did not indicate that the groups in question held the kind of sway over or assumed the level of importance in the lives of their members that one expects in matters that are so fundamental to identity.

On the symbolic plane, had the courts (or the conservation officers) acceded to the membership card declarations, they would have conveyed a message that section 35 “groupness” could reside in the proffered thin and ephemeral connections. Yet an ebbing tide, so to speak, lowers all boats. The result would have been to devalue the extent to which Aboriginal collectivities fundamentally shape and nourish their members’ identities, as if to intimate that rights-holding status were a mere award.[66] It would have a concomitant effect on the manner in which non-Aboriginal persons perceive the Aboriginal peoples, likely skewing discourse and increasing conflict between the two.

Moreover, section 35 recognition has an inescapably material aspect. The constitutionalization of Aboriginal rights has, among other things, “sanctioned challenges to social and economic policy objectives embodied in legislation,”[67] and affirmed a priority in the allocation of certain resources in favour of groups that are in the minority.[68] Acceptance of every assertion of rights-holding status would tend to increase the number of parties with constitutional priority over resources. This could, for reasons that are quite apparent, heighten tensions between Aboriginal and non-Aboriginal parties. Equally, it could inure to the detriment of other Aboriginal peoples. The game, fish, and forestry resources that are the subject of many Aboriginal rights are—while renewable—finite at any particular time (to say nothing of the land that may be subject to a claim for Aboriginal title). Especially in a relatively confined geographical area over which Canadian law has recognized the rights of one group, the “arrival” of another on the scene introduces competition that will require adjustments on the part of the prior rights-holders. These are sensitive issues even in cases where the assertion of rights-holding status is widely accepted, and would be most concerning were it not.[69]

By way of further example, the successive Powley decisions were hailed by Ontario’s Metis organizations as unbridled victories against intransigent governmental policies. The case, however, had broader implications. It also ushered in a new relationship between the Metis of the Upper Great Lakes and the Anishinabek (Ojibway) people whose Aboriginal and treaty rights in the area were never in doubt. Anishinabek leadership has been supportive of the Metis cause, but because Anishinabek rights would be affected by any post-Powley agreement between the Metis and the Ontario government, the Anishinabek Grand Council insisted on being party to negotiations. All indications are that the Metis interlocutors welcomed Anishinabek participation, and that the parties’ interests were closely aligned. But when it appeared, subsequent to the Ontario Court of Appeal’s ruling, that that the Metis were prepared to exercise their rights in the absence of a settled regulatory regime—that is, if no agreement could be reached—the Anishinabek Grand Council expressed trepidation about any course of action that would extend rights, or impinge upon Anishinabek rights, without an all-party agreement in place.[70]

The point is this: parties with established rights granting them priority over resource allocation will be required to make adjustments in the face of newly recognized groups with similar entitlements. Strains may be inevitable, even where the established party maintains close relations with the newly recognized one and acknowledges the justice of its claim.[71] The recognition of Aboriginal collectivities on what might be perceived as less defensible assertions would naturally cause much more consternation among the already recognized peoples in close proximity.

2. Who May Make the Declaration?

The second set of basic deficiencies in a purely deferential approach flows from the manner in which verbal assertions are typically made: through individuals recognized as or claiming to be community leaders. If we argue that these persons’ declarations should be sufficient to prove section 35 right-holding status, we preclude even the most cursory observation of the actual collectivity. We make no account for analysis of the state of affairs “on the ground.” Granted, we must take declarations of status seriously, but does it not make sense to retain some capacity for critical perspective? This becomes especially important in light of the fact that a leader’s status and decisions may often be contested. In cases where there is substantial dissent, a policy of recognizing all claims of rights-holding status could precipitously fracture collectivities that were previously whole or subtly interconnected.

At the most basic level, deference to all outward declarations would be open to abuse. In a dramatic case, this might occur through a gerrymandering of the collectivity. Those making the declaration might seek to define the community in a manner that eliminates challenges to their authority or other elements that they find threatening or undesirable.

The situation need not even reach that extreme in order to have deleterious effects. In the best of cases, a bare declaration can only crudely approximate the elusive associations that forge community. In other circumstances, it may rupture many of those associations. That is, to recognize all outward assertions of community would be to encourage dissident groups, unhappy with their leaders’ approach in respect of a certain rights issue, to “break off” and assert independent status as a rights-bearing collectivity in a way that damages both groups.

In making this point, it must be noted that the processes by which human collectivities coalesce and break apart are complex. We cannot condemn all splits a priori, insisting that they are bound to end badly. It is impossible to cast judgment in such general terms, in part because there is no reason that the status quo should be universally privileged as evidencing the “natural” unit of community. For example, in its modern incarnation, a group may represent formerly separate units that circumstances impelled to federate or form an alliance. Such unions are not indissoluble by nature, nor are their constituent parts precluded from sometimes acting independently, even in the pursuit of important ends. The Nuu-chah-nulth nations of British Columbia provide an excellent case in point.

Long ago divided into chiefly families, Nuu-chah-nulth persons—sharing traditions, languages, and aspects of culture—came together first in local groups, then as nations. In 1958, the nations formed an alliance. After incorporating, they re-named themselves the Nuu-chah-nulth Tribal Council (NTC) in 1979.[72] In total, fourteen First Nations—all recognized as bands under the Indian Act—comprise the NTC, which has a combined population of approximately 8000 registered members.[73] It should be noted, however, that the formalized structures at the national and tribal council levels have in no way eliminated the rich ties and specificity that reside at the local level.[74]

In 2001, twelve of the NTC First Nations jointly negotiated a draft agreement-in-principle (AIP) with the governments of Canada and British Columbia in the BC Treaty Process.[75] Following this, each separately undertook a process of community consultation with a view to approving the draft AIP. Ultimately, six First Nations approved the agreement and six rejected it. In the aftermath, five of the nations that had supported the draft AIP split off to continue negotiations as the Maa-nulth First Nations (MFN), whose body represents roughly 2 000 persons.[76] With one exception, the MFN are geographically located around Barkley Sound on the west coast of Vancouver Island.[77] The remaining NTC nations are roughly situated between Kyuquot Sound and Ucluelet on the coast, extending inland some distance as well.[78]

The MFN subsequently negotiated and ratified a modified AIP, and have proceeded to initial a final agreement. The NTC nations are at an earlier stage, and have initialled their own AIP. Through this all, however, the members of the MFN have remained full members of the NTC and in fact received approval to pursue these negotiations at their discretion in a resolution passed by the NTC.[79] While the NTC no longer serves as the primary locus for treaty negotiations for the member nations of the MFN, it still provides them with a wealth of social programs and services, as well as other forms of economic, political, and technical support.[80]

The Nuu-chah-nulth example testifies to the flux that is a regular feature of human collectivities and to the fact that any given person often belongs to a plurality of groups, often imbricated. It may be far from obvious which group membership predominates—that is, which one or ones are relevant for the purposes of a section 35 analysis.[81]

This example also indirectly evokes the complex web of connections that link individuals in collectivities. While the cleavage occurred over the preferred collective approach in treaty negotiations, it is far too facile to equate the MFN with the sum total of individuals who supported the original draft AIP. No doubt there were individual members of the MFN who sympathized with the NTC’s rejection of that agreement and individual members of the post-split NTC nations who would have preferred its acceptance.[82] A more accurate portrayal of the situation is that, in each case, the decision regarding whether or not to support the draft AIP was made collectively by an entity that not only predated the B.C. treaty process, but that also could not be torn apart by disagreement over a particular issue, even one as seemingly critical as this. In other words, the First Nations in question are united in a way that goes far deeper, and that is more lasting, than a commonality of views on a specific topic. This unity is rooted in the subtle and idiosyncratic ties of social community that find their roots in lived experience.

Might not assigning categorical effect to declarations hasten the breakup of meaningful collectivities? It is not uncommon to encounter the presumption, sometimes even held by the very actors involved, that “true” community resides in agreement on substantive precepts and values.[83] Where this sentiment is coupled with the ability to declare autonomy unilaterally, and where the various factions of a community facing division over a given issue lose their appetite to suffer the sometimes difficult processes of compromise and accommodation, the community might simply splinter along lines of agreement.

There are dangers in adopting a definition of community that invests too heavily in agreement. Undoubtedly, most communities do exhibit a core group of values and aspirations that are shared by their members; however, these can typically be rendered in a relatively short list of open-ended principles and general goals.[84] They rarely, if ever, will take the form of a comprehensive and detailed set of uniformly agreed-upon means and ends. Thus, too narrow a focus on substantive agreement does a disservice to the rich diversity that usually characterizes human collectivities.

In opinion (as in many other respects), no community is perfectly homogeneous.[85] Indeed, it is arguably the case that disagreement over substantive ends, as the engine that powers reflection and renewal, may in fact be crucial to the continued viability of most groups. The stability of a group that is defined by concurrence relies, at least in some measure, upon a stasis of thought, which suggests diminished individual and collective self-reflection.[86] Recognizing that legal traditions are much richer than whatever positive law they may encapsulate at a given juncture, anything that might retard the progressive or reflective impetus ought to be subject to the strictest scrutiny.

Secondly, there may be concerns about the stability of a group defined by agreement. Consider the matter of geography. Typically, the interactions that form and sustain community owe something to locational proximity. From the family, to the village, to broader national groups, shared space facilitates the exchanges that go into building the thick web of connections that inhere in social units.[87] On the other hand, while a grouping based solely on agreement at a precise moment in time will probably have some geographical correlation, it is not necessarily an especially strong one—the resulting community, for example, will probably not replicate the physical togetherness of an actual neighbourhood or village. If the individual members are not in sufficient proximity to enable regular interaction, it could be difficult for them to sustain cohesion over time.

Thirdly, opinions are generally changeable and lack the relative permanence of deeper social connections, such as a commitment to a particular deliberative process. Bare agreement provides a flimsy foundation for any sort of durable community.

As an additional consideration, the prospect of instability poses a challenge in terms of inter-group relations. Transitoriness is hardly a quality that is compatible with the conduct of any sort of ongoing dialogue. It would have a debilitating effect on the already difficult cut and thrust of negotiations between Aboriginal and non-Aboriginal parties if the interlocutors themselves were constantly shifting. To the extent that a breakaway could cause a destructive balkanization, jeopardizing the self-sustaining capacity of both the “splitter” and “splitee,” declarations of rights-holding status merit some investigation. For this reason, it is often suggested that it is necessary for claims to be evaluated against some set of criteria. But what sort of criteria? Who will choose them? Who will apply them? How might such an evaluation proceed?

C. An Objective Test

It is commonly asserted—or implied, as by the Court in Powley—that a community may be determined through the application of an objective test. Such a test might result from judicial decision or from legislative action. It would contain a set of criteria or indicia, intended to capture the relevant connections that bind individuals together as a community. By measuring the evidence pertaining to a particular group against these pre-established factors, one would be poised to identify whether it rose to the level of a constitutional rights-bearing collectivity.

The veneer of objectivity does have superficial attractiveness, but it cannot stand up to the weather. Broadly, there are two major flaws endemic in an objective approach: one relates to the initial selection of the criteria, and the other to the difficulties in applying them to a given set of facts. I shall tackle these in order.

1. Who Is to Choose the Criteria?

Objective criteria do not emerge from the ether. Some person or persons must evaluate prospective factors as indicators of community and come up with a list they believe appropriate to the task. This undertaking is one of tremendous responsibility. It is also one that inevitably occurs from a particular cultural vantage point. Criteria choosers will fix on what appear to be the core indicators of togetherness from their perspective. And community is largely a matter of perspective. If asked to pinpoint the key element of its collectiveness, one group might emphasize common ancestral or “racial” bonds.[88] Another group might stress tangible elements of culture (language, style of music or dress, religion, or “way of life”[89]) as the collective glue, de-emphasizing ancestry to the point where it allows for adult naturalization through marriage or other means.[90] There may also be a tendency to incorporate some notion of exclusivity, leaving no room for the sort of “layered” approach discussed above, which recognizes that individuals may belong to multiple groups at once.

Yet there are more culturally specific (or subjective) ways of understanding groupness that do not necessarily produce these sorts of signposts, and may completely escape the imagination of someone who does not belong to that group.[91] For instance, groups might trace aspects of collective consciousness to shared legends or to a particular creation story. These might not only describe the group’s putative genesis, but also its relation to the world and to other peoples (i.e., defining the community as against what it is not).[92]

Whatever indicia are taken to represent community, one can say with near certainty that they will not be capable of accurately reflecting the self-conceptions of all Aboriginal groups. This failing is crucial for two reasons. First, where the selected criteria clash with a community’s self-conception, there is a possibility that application of the test could produce skewed results, as I shall discuss below. But even prior to that, groups seeking recognition under section 35 will, in light of the stakes involved, be pressured to show conformity to the “test.” Along the way, the collective might be irreversibly contorted into quite a different form.

On both the intimate and social planes, in Charles Taylor’s words:

[O]ur identity is partly shaped by recognition or its absence, often by the misrecognition of others, and so a person or group of people can suffer real damage, real distortion, if the people or society around them mirror back to them a confining or demeaning or contemptible picture of themselves.[93]

To this I would add that the pernicious effects of misrecognition—the distortions—reach their maximum when, by virtue of the prevailing power structure, the once-inaccurate reflection comes to dominate, and the group loses something irreplaceable. The commitment made by section 35 must represent an exit from that state of affairs, not its entrenchment.[94]

2. How Are the Criteria to Be Applied?

An “objective test” can never be just that. Even if it were possible to compile an exhaustive list of relevant criteria, the application of these criteria would prove impossible in practice. In certain cases, any one or all of the factors might well be indicators of a rights-holding community. But they would not, globally or individually, assume uniform importance across all communities. An element of subjective judgment will enter the equation whenever the party charged with deciding the matter has to weigh the evidence and determine, for instance, whether the absence of a given criterion is fatal, or whether a particular mix achieves the “critical mass” necessary to prove rights-holding status. I am not suggesting that such judgments cannot be made; they are made all the time. But the party making them cannot, in these particular circumstances, claim to be truly objective.

Like the party who selects the criteria, the person or body charged with assessing the evidence and adjudicating the matter under an ostensibly objective approach wields significant power. Presumably, the decision maker will make every effort to act fairly and impartially. But bias and closed-mindedness are only the most obvious threats to an even-handed judgment—the more insidious threat resides in the descriptive elusiveness of community. Despite constant exhortations from the Supreme Court of Canada that it is necessary to consider the Aboriginal perspective in connection with section 35, it is difficult to do so with community, a concept that is not easily articulated.[95] Adjudicators may be left to rely upon their own impressions, which will again be rooted in their particular cultural milieux. As impartial as the adjudicator may strive to be, there can be no compensating for things that lie beyond his or her comprehension.

III. Another View

The difficulty with each of the above approaches is that community is simply too elusive a concept, too grounded in the particular and richly subjective connections that bind individual members together, to be susceptible to these simple reductions. None of those approaches can replicate what it is that Aboriginal groups do—in terms of the role they play in their members’ lives and the importance that they bring to them—let alone get around the blind spots caused by cultural difference.[96] I do not suggest that the issue admits of an easy answer or, what is not necessarily the same, an easily articulable one.

Certain themes, however, do emerge from the foregoing critiques. As community is neither purely subjective nor purely objective, the inquiry must go beyond mere observation—by necessity it involves an exercise of interpretation. To paraphrase anthropologist Clifford Geertz, investigating community in the section 35 context is like trying to construe the meaning of a ragged and faded manuscript, in a foreign tongue, full of ellipses and incoherencies.[97] Yet it is possible, I believe, to identify some salient aspects of the type of community that section 35 envisions, in order to guide the interpretive process. I stress that my comments in this regard are descriptive rather than conclusory in nature. I do not advance a “check-list” of a priori elements of community. Rather, I propose something more in the nature of a methodology, or considerations to focus the inquiry.

A. The Intensity and Quality of the Group’s Social Character

The nub of modern rights-holding status is the continued capacity to generate norms or customs separate from or in opposition to those imposed or followed by the non-Aboriginal order. In addition, those norms or customs should be “meaningful”, in the sense that they reflect the group’s importance to the identities and lives of its members.[98] In a nutshell, we must determine whether the asserted community represents a sufficiently dense site of interaction to possess its own means of determining social norms.

Importantly, this is not merely an investigation into the existence of a particular set of shared customs or traditions. Instead, we should direct our attention to the group’s capacity or aspiration to engage in a process of “normative determination”. Obiter dicta found in certain cases, suggesting that the continuance of particular customs is the central feature of a rights-bearing community, should not be followed.[99] Rather, the inquiry must focus on the community’s concern with maintaining control over the method(s)—whether “customary” or “legislative” in nature—through which it develops, decides on, or consents to the substance of its normative order, and on the community’s ability to act on that concern.

This is not entirely dissimilar from the approach suggested in RCAP: Restructuring the Relationship.[100] In discussing the matter of self-determination, the commissioners presented a vision of Aboriginal nationhood that included what they termed “a collective sense of identity”. In the commissioners’ view, this is usually grounded in a common heritage, but could also be a product of “shared contemporary situation and outlook.”[101] As distinct from the approach taken in the RCAP Report, however, my conception is less concerned with the various factors that might motivate individuals to come together to begin with, and is more focused on what the community achieves once it is together.

B. The Importance of a Distinct Normative Process

The party charged with making the recognition decision must carefully and sensitively evaluate the record for any indication of a distinct normative process. In many cases, the inquiry is bound to be led by impressions rather than “hard facts”. There may be “objective” facts capable of revealing the contours of an Aboriginal legal order—patterns of behaviour that provide strong hints—or the relevant indicia could be entirely subjective, discernable only in the first-hand accounts of the members of the would-be group. Regardless, one might best structure the inquiry by adopting a simple and pragmatic approach: decision makers ought to review and interpret the evidence in an attempt to discern whether it reveals the particular type of norm-generating community with which section 35 is concerned. They must attempt to immerse themselves in the subjective links of the alleged community, not merely “taking into account”, but doing their best to absorb the claimants’ perspective on the matter.

In both Van der Peet[102] and Delgamuukw,[103] Chief Justice Lamer exhorted trial courts to approach the rules of evidence in Aboriginal law cases with a modicum of flexibility. Powley provides a good example of the challenges courts may face, and of the necessity for a more open approach to both admissibility and evaluation of evidence. The lay witnesses at the Powley trial struggled to express what it was that made the Metis persons in Sault Ste. Marie a community. This sort of evidence is unlikely to take the form of an expert treatise. It may be presented in vignette or anecdotal form. A decision maker faced with such evidence must do his or her best to evaluate whether it provides support for the existence of a community with its own norm-generating process.

It may be that, practically speaking, it is difficult to find evidence that speaks to anything other than conflict between the actual normative content of Aboriginal and non-Aboriginal societies. However, as the existence of temporary harmony between the specific norms prevailing in two different societies does not end their respective capacity for normative determination,[104] the decision maker should diligently evaluate all testimony provided by the members of the would-be community, even if descriptions of particular norms appear to differ little in substance from those in the dominant legal order.

This analysis must not be a judgment of the worth or value of the community, merely an inquiry into its existence. Moreover, since the decision makers are by definition seeking something that is foreign to dominant conceptions of community, they must not view themselves as slavishly bound to follow the line of jurisprudence that would require Aboriginal claims to find analogues in the common law tradition.[105] On the contrary, the goal is first to find whether there is an Aboriginal collectivity with a normative tradition distinct from the relevant common law or statutory rules, and then to fashion a suitable result.

C. Membership in Multiple Rights-holding Groups

Individuals may be members of multiple rights-holding groups in a federal relationship. In some cases, a relatively small group will be a constituent (or “federal”) part of a larger one. It may be that the constituents are the ultimate authorities for determining particular aspects of the normative order.[106] For instance, where a community traditionally breaks into smaller units for certain seasons of the year, it may be that the wintering community is the one to which members look for certain customs (for example, those related to hunting), but the larger summering community is the one to which they look for certain others (for example, those related to fishing).

An individual member of both groups may conceivably be able to claim different Aboriginal rights under each. Indeed, the MFN example possibly furnishes one such illustration.[107] In a situation like this, it is crucial for the evidence to show distinct spheres of normative engagement. This would lend support to the conclusion that the constituent group represents the appropriate determining authority for some normative aspects, and the larger group for other aspects.

D. The Situs of the Right

A group might be a rights-holding entity for one purpose, but not for others. It follows that one individual might belong to a number of different Aboriginal collectivities, exercising a species of site-specific rights in the name of one group and participating in another group’s more traditionally “national” rights (such as self-government,[108] Aboriginal title, or the right to enter into a comprehensive treaty with the Crown). For this reason, I have deliberately used a variety of terms to describe the rights-holding entities under section 35 throughout this paper. The term people in the actual constitutional text should not be interpreted as “setting the bar” for rights-holding status in accordance with that word’s usage or meaning in other legal contexts. Likewise, and notwithstanding certain prosecutorial submissions to the contrary,[109] the recognition that smaller Aboriginal communities may hold their own site-specific rights is in no way a negation of the broader rights held by larger communities. The particular legal lexicon is not important. Rather, the key issue is whether the collectivity in question meets the norm-generating criterion. If it does, it may be a rights-holding entity.

E. A Tailored Focus

The analysis should be focused on the particular kind of normative order implicated in the instance. By necessity, the exercise is entirely fact specific. In a prosecution under fish or game legislation, the rights claimant ought not to be called upon to prove the existence of (and his or her membership in) anything more than an Aboriginal collectivity with a normative system governing the conduct of individual members engaged in the particular pursuit. Likewise, in respect of Aboriginal title negotiations, the claimant group ought to establish that it is an Aboriginal community of sufficient density to engender relations to the land and the environment of the sort that would conflict with competing assertions of the Crown.

For example, if the evidence shows that (1) there were historically a number of Aboriginal persons in a region, (2) who hunted with a certain intensity, and (3) who did so in a manner that did not fully resemble that of the European populace of the region, or that suggested that the persons were not merely conforming to European norms, then this may indicate that they were operating in concert or obeying a common Aboriginal custom. It would then be open to the decision maker to conclude that the individuals formed, at least for the limited purposes of hunting, an Aboriginal rights-bearing collectivity. The inquiry would then turn to whether the modern group had a relationship of continuity with this historical group.

This should not, however, be taken to preclude a modern claim of a right to fish where it can only be shown that the historical group engaged in hunting. In keeping with the rejection of “frozen rights” and the rather expansive approach taken in Powley (the Court preferred the characterization that members of the Metis community “earned a substantial part of their livelihood off of the land,” over the Crown’s much narrower assertion that the right was limited to hunting and, further, to individual species[110]), it ought to be sufficient for the claimant to show that the forms of conduct governed by the historical community’s normative order correspond in a rough and general way to that currently in question. If changes in location or environment resulted in an evolution of the group’s food-gathering pursuits, there is every reason to allow the modern claimant to exercise the right as it is relevant to today’s conditions.

F. The Historical Reference Point

The historical inquiry should focus on the time when European legal systems truly began to obtain in the region. It was the introduction of effective European legal orders—not the mere arrival of explorers or missionaries, or the establishment of a few scattered and isolated settlements—that provided occasion for the emergence of the doctrine of Aboriginal rights. It follows that the communities of interest in this inquiry are those whose normative orders came, or could have come, into conflict with those of the newcomers. The modern rights-claiming community should be placed under no greater burden of proof than to show that it is the successor (or one of the successors) to a historic community that existed at the time when the competing European legal order was established in the region.

G. Evidence of a Community

There must be evidence that the contemporary claimant is an actual community. At points in its judgment in Powley, the Court seemed to emphasize continued individual practice of customs linked to the historic Sault Ste. Marie Metis community.[111] This may be attributed to the fact that the trial record contained scant direct evidence concerning the contemporary community, other than the testimony concerning the role played by the MNO. It would have no doubt been helpful if the Powleys had adduced further evidence at trial to support, directly or indirectly, the proposition that the MNO (or OMAA) actually functions as or otherwise represents a contemporary right-bearing community. However, even absent such evidence, I suggest that it was incumbent upon the Court to analyze more closely the record as it existed, to determine whether there was any evidence that could reasonably support such a conclusion. Otherwise, one risks losing sight of the fundamentally collective nature of Aboriginal rights and, potentially, vesting these rights in a scattering of individuals who can claim biological descent from a former norm-generating community. In this connection, once the decision maker recognizes a historic community, the inquiry should turn to the matter of continuity.

H. Continuity Between the Historical and Modern Groups

Continuity between the historical and modern groups need not be absolute. As already stated, there is no reason to require that the rights-holding group remain today in its exact historical form. An Indian Act band may be the proper successor to a First Nation. Indeed, in some circumstances, even a recently established body might be a legitimate successor to an Aboriginal group that pre-existed and survived the dominance of the European legal order. Alternatively, it might represent another phase of community, a conglomeration of smaller bodies into a rights-bearing “federal” whole. The NTC, discussed above, provides an example where this appears to be the case.

The central issue, again, is with the continuity of norm-generating capacity; institutional continuity is a concept distinct from this. Although the latter can undeniably play a role in the continuity of the community’s normative order, it cannot be said to lie at the core of the matter. As section 35 does not involve the “freezing” of particular rules, it likewise does not restrict the community to one institutional form.

I. The Potential Revival of a “Dormant” Group

There is nothing automatically barring a “dormant” group from reviving. Case law refers to the possibility that an Aboriginal collectivity’s “national fire”[112] might be extinguished, or that the “tides of history” might wash away its rights-holding status.[113] There is no question that a long-dormant group can reach a “point of no return” whereafter it cannot be revived. For example, one cannot assert that the Beothuk people who disappeared from Newfoundland in the early nineteenth-century can re-emerge as a rights-holding people.[114] Nonetheless, there does not appear to be any compelling reason in principle why the continuity requirement would necessarily bar a dormant Aboriginal community from reviving and once again claiming Aboriginal rights. A group may have temporarily lost its normative hold on its members, yet may attempt to reclaim its former status later, upon its re-establishment as a fundamental social and cultural medium in a subsequent generation.

Presume, for instance, that members of the dormant community are absorbed into other Aboriginal collectivities or non-Aboriginal society. Years later, individuals who were youths at the time the group dissipated decide to introduce their children or grandchildren to the old community traditions. There is no reason to peremptorily deny a community like this the ability to hold section 35 rights. There should be no obligation for the group to show an “unbroken line” of continuity, provided that it passes the test of “Aboriginality”. That is, the community must show that it is the successor to a social order that took hold prior to the effective imposition of that of the newcomers, and that it exists today as a norm-generating unit and, accordingly, a fundamental source of individual and collective identity for its members.

Again, it has been in large part owing to wrong-headed assimilatory policies of the Canadian government that some Aboriginal societies were weakened, and it does not accord with the constitutionalization of Aboriginal rights to deny the reach of section 35 to groups that are only now rebuilding a dignified sense of community.[115] Where the record indicates that the modern group has a close connection to the dormant group and that the modern group represents to its members roughly what the dormant group represented to its members, we ought to recognize this as sufficient continuity for the purposes of section 35.

IV. A Note on the Decision Maker

I have throughout this discussion used the generic term “decision maker”. It deserves mention that, if the perpetually large volume of Aboriginal rights court cases is any guide, the parties will likely petition a judicial forum for resolution where recognition is likely to be an issue (i.e., where the situation is in any way exceptional). As the Powley case again illustrates, the judicial review process facilitated by the Constitution Act, 1982 is an attractive avenue for previously marginalized individuals and collectivities in their attempts to contest the dominant order.[116] In spite of the courts’ frequent admonitions that Aboriginal rights claims are best solved through negotiation, not litigation,[117] the decision in Powley appears to have ushered in a veritable explosion in Metis rights court cases rather than the desired move to the bargaining table.[118] Indeed, the Court might now be accepting this reality, as on two recent occasions it appeared resigned to the fact that litigation is bound to play a significant role in the future delineation of Aboriginal rights.[119]

If questions such as these are to be addressed in the courtroom (in spite of its institutional weaknesses), the parties involved—most obviously the judges, but also the lawyers, the witnesses, and the consultants—all bear responsibilities to facilitate the interpretive process.

Conclusion: Membership and Beyond

It is impossible to grapple with the scope and nature of community under section 35 without confronting certain sequelae. In closing, I make brief mention of two.

First, there can be little justification for demanding that an individual prove a strong ancestral link in order to benefit from Aboriginal rights. A court-imposed ancestral or genealogical requirement declares, in my view erroneously, that Aboriginal rights descend by way of the individual members, rather than by way of the communities themselves. It also suggests that Aboriginal groupness has an inherent genetic component.[120] Indeed, an ancestral requirement predetermines the community’s nature and correspondingly fetters its ability to self-define, resulting in a loss of the flexibility needed to adjust to the constantly changing world.

Doubtless, ancestry may play a role—even a substantial role—in binding individuals to groups that are fundamental to their identity, but it is only one factor and it is not truly a requisite one. It may be a sufficient connector in a given case, but it is not, by definition, necessary. To the extent that the Supreme Court of Canada’s decision in Powley imposes ancestral connection as a condition precedent to a successful claim of Metis rights, it reflects a reductionist version of Aboriginal society that cannot assist in fulfilling the promise of section 35. These comments apply a fortiori to the extent that the decision might be taken to impose the same criterion for section 35 rights generally.

In my view, an Aboriginal community holding site-specific section 35 rights must have the ability to determine which individuals may exercise those rights. Consider briefly the instrument of the treaty. From the earliest instances of diplomacy between Europeans and indigenous peoples, the treaty functioned as an agreement between the respective societies. Moreover, “[t]he hallmark of a treaty is the fact that it deals with the rights of the whole nation concerned.”[121] Why should the successor of the European side of these bargains—all of modern non-Aboriginal Canada—be permitted to naturalize members while the successors to the indigenous side—today’s Aboriginal peoples—are not? Intuitively, this makes little sense. To make use of personal example, I was born in Edmonton, which is situated on lands that were the subject of Treaty 6 in 1876. At the time the treaty was concluded, none of my ancestors were yet in the area and, in fact, none even lived in Canada. Yet when I was born, I was automatically entitled, as a subject of the Crown, to benefit from the then nearly hundred-year-old treaty. Why could I do so? Bluntly, because Canadian citizenship is not simply an heirloom—the state grants it to persons it deems worthy, in accordance with its naturalization laws.

Any approach that would put the onus on Aboriginal groups to adduce evidence that their forebears observed a given naturalization practice or custom is one that begins from a presumption of “frozen rights.” The better view is to respect Aboriginal peoples as peoples, accepting that a necessary incident of community is its fluidity. As a society, Canada must not allow “red herrings” such as the concern that Aboriginal communities will grant membership to a host of new individuals, thus taxing already scarce resources, to deter it from making this recognition.[122]

Aboriginal and non-Aboriginal peoples undoubtedly have a joint interest in conservation of land and resources. There will almost certainly be tension if a large number of individuals become accepted as members of Aboriginal communities, but our approach to this issue should not be determined by ex ante and uninformed presumptions that the Aboriginal peoples will exercise their power in error. If anything, communities that have shown strength and resilience in the face of prolonged assimilatory efforts are likely to be extremely judicious in selecting only members who can demonstrate commitment to the indigenous social order, thus maintaining the inter-societal nature of Aboriginal rights.[123]

The second concluding point implicates the substantive test for recognizing section 35 rights themselves. Much has been written regarding the weaknesses in the Court’s approach in Van der Peet.[124] In my view, however, the primary error in Chief Justice Lamer’s methodology is that he moved away from the fact that Aboriginal rights arise from Aboriginal peoples’ being peoples. Rather, he held, “[s]ection 35(1), it is true, recognizes and affirms existing aboriginal rights, but it must not be forgotten that the rights it recognizes and affirms are aboriginal.”[125]

The remainder of the Chief Justice’s reasons are best understood as an attempt to place a definition on the term “Aboriginal,” and to craft an approach to section 35 in which all that falls outside the set of presumed Aboriginal characteristics also falls outside of constitutional protection.[126] That is, his conclusion as to the appropriate test for proving an Aboriginal right, and his elaboration of some ten factors to be considered in application of the test, were but incidents of the initial determination that section 35 protects some core of “Aboriginality.” The culmination of all this was the Chief Justice’s declaration that, “in order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right,”[127] these practices, customs, and traditions requiring continuity with those that existed “prior to contact between aboriginal and European societies.”[128]

Inevitably, and with respect, this caricatures Aboriginal societies. In the judicial context, at least, it involves a (usually) non-Aboriginal decision maker identifying superficial differences between Aboriginal and non-Aboriginal societies. It also downplays the manner and extent of things that human communities represent for their members.

Had the Chief Justice’s approach commenced instead from the collective nature of Aboriginal rights, the recognition of the same might have fallen to be determined on the more defensible ground of whether there was a genuine conflict between Aboriginal and non-Aboriginal legal orders—one that required resort to the sui generis body of inter-societal law for its resolution.

I suggest that there is reason to reconsider—and, ultimately, to reject—the Van der Peet “integral to the distinctive culture” test. Aboriginal rights, after all, are about much more than the preservation of cultural customs as a device to encourage individual or collective flourishing. They are the means by which the peoples who arrived in Canada over the course of the past 500 years relate to and interact with the peoples who were already here. The doctrine provides a process towards inter-societal accommodation. It should surely attempt this on as broad and robust a basis as possible if it is to function effectively and nobly as the vehicle through which an accommodating future with the First Peoples is to be achieved.