Monday, December 31, 2007

Masters Thesis

Van Der Peet Revisited: A second look at the ‘Relevant Time’ Requirement

Written By Thomas D Marshall
(December 2007)

Masters of Laws Major Paper

Supervisor: Professor Bradford Morse, University of Ottawa


Ever since the watershed case of R. v. Van der Peet, serious questions have been raised by both judges and academics regarding the efficacy of the test, as established in that case, for the determination of Aboriginal rights via section 35 of the Canadian Constitution. In particular, many, sometimes harshly, have condemned a particular portion of the Van der Peet test that requires Aboriginal claimants wishing to establish an existing Aboriginal right to found their precise claim in an ancient, pre-contact mirror practice. This portion of the test is often referred to as the pre-contact time requirement. This paper undertakes an in-depth review of the Van der Peet case, from its very beginnings, all the way to its present-day legacy in order to determine whether this tenet of the test should be done away with. In doing so, this paper will also review many of the academic and judicial criticisms leveled against the test. This paper will also look to recent trends in judicial reasoning, as evinced in such cases as R. v. Delgamuukw, R. v. Powley, and R. v. Sappier, to illustrate some of the more obvious tensions brought forth by the pre-contact time requirement. The paper concludes by suggesting that, after having reviewed the cases, academic criticisms, and recent ruling of the Canadian Supreme Court, there can be little doubt that drastic change to the Van der Peet test is desperately needed.

Van Der Peet Revisited: A second look at the ‘Relevant Time’ Requirement
Ever since the watershed case of R. v. Van der Peet, serious questions have been raised regarding the efficacy of the test, as established in that case, for the determination of Aboriginal rights via section 35 of the Constitution. In particular, many, sometimes harshly, have condemned a particular portion of the Van der Peet test that requires Aboriginal claimants wishing to establish an existing Aboriginal right to found their precise claim in an ancient, pre-contact, mirror practice. This portion of the test, often referred to as the pre-contact time requirement, has become increasingly isolated and particularized as judges in more recent times have opted for flexible approaches that take into account, for example, instances where the Aboriginal group claiming rights under s. 35 could not possibly have existed prior to contact with European society. This paper adds to the chorus advocating change and suggests more than a simple re-tooling of the Van der Peet test is required. The pre-contact time requirement, as articulated ten years ago in Van der Peet, simply does not fit the variability required of Aboriginal rights issues, has led to a situation that treats different Aboriginal peoples disparately, and does not allow for sufficient cultural evolution within Aboriginal societies. As Counsel for Mrs. Van der Peet put it rather plainly, the test has turned rights into relics.

It will be the purpose then, of this essay, to critically assess the Van der Peet case; its legacy; and possible future implications for the recognition and vitality of Aboriginal rights in Canada. In section 1 this paper will highlight some of the difficult questions that faced the courts in attempting to answer the legal question, “Did Mrs. Van der Peet have an existing Aboriginal right to sell or barter fish?”. In particular, the reader should note the uncertainty expressed within the successive judgments and opinions surrounding the relevant time period at which Aboriginal practices can rightly be judged. For convenience, this section is broken into two smaller parts, the first part dealing with the lower courts’ decisions, and the second with the decisions of the British Columbia Court of Appeal and Supreme Court of Canada. In section 2 this paper moves on to explore some of the academic criticisms that have arisen in response to the Van der Peet case and its lingering legacy. In particular, this section will look at the cases of Delgamuukw, Powley, and Sappier, to determine whether the Court has signaled, via these decisions, a new trajectory for the Court in relation to time requirement portion of the test. In section 3, this paper will explore the intersection between constitutional interpretive models, types of reasoning, and Aboriginal rights interpretation under section 35. Here the paper will assess the Van der Peet test’s congruity with traditional constitutional legal interpretation. In the 4th and final section of the paper, some conclusions and recommendations on future possibilities will follow a brief discussion on the issues raised. In the end, this paper will assert that the time has come to admit that the pre-contact test has become a largely discredited and defunct archetype for the determination of Aboriginal rights, and as such, should be discarded as a method for assessing whether Aboriginal practices-cum-rights are protected under section 35 of the Constitution.

Section 1
R. v. Van der Peet – The Case
Section 1A
The Lower Courts’ Decisions
In September of 1987, Charles and Stephen Jimmie decided to go fishing near Chilliwack, British Columbia, at an old Indian fishing site on the Fraser River. Both men were the holders of valid Indian food fish licenses; both were expert fishermen. After catching sufficient fish that day, Charles, taking his share, returned home to clean the fish for his partner, Dorothy Marie Van der Peet - herself a status Indian and member of the Sto:lo First Nation. Not long after having cleaned the fish, and having set them in ice, Mrs. Van der Peet was visited by a lady named Marie Lugsdin, a non-Aboriginal, who offered to purchase the fish at $5 a piece, for a total of $50 dollars worth of fresh Fraser River salmon. Mrs. Van der Peet was happy to do so, but was later charged, under British Columbia Fishery Regulations with having unlawfully sold fish caught under a food (only) fish license.

At Provincial Court, Mrs. Van der Peet defended herself by arguing that, in having sold the fish, she was acting pursuant to an Aboriginal right to do so. Indeed, she contended that the customs, traditions, and practices of the Sto:lo people, extending from time immemorial, established an unextinguished and continuing Aboriginal right to fish for a variety of purposes, including the barter and sale of fish. Judge Scarlett listened to extensive history on the practices of the Sto:lo Nation in relation to fish. Fish, according to the expert evidence, were used for a variety of purposes by the Sto:lo, some of which rested on a cognizable notion of barter or sale - sale in these instances however, was considered incidental and occasional only. Primarily, it appeared the commodity was historically used for food and ceremonies, providing the inhabitants of the Sto:lo Nation with sustenance – not as Mrs. Van der Peet seemed to contend - with an income. In particular, Judge Scarlett noted that:

Exchange of fish was subject to local conditions and availability…it was the establishment by the Hudson’s Bay Company (and the resulting trade during the early 1800’s)…that created the market and trade in fresh salmon. [Aboriginal-only trade prior to the arrival of Europeans] was…minimal and opportunistic. (Emphasis added)

From this passage (and as Justice Lambert of the British Columbia Court of Appeal would later note) it is clear that Judge Scarlett’s findings revealed an apprehension of Aboriginal rights firmly grounded in the pre-European history of Natives. What was Native, according to Judge Scarlett, was that which existed prior to European-Aboriginal contact. Practices or customs that evolved or grew in scale after, or as a result of, contact with Europeans (like large-scale fish trade) must necessarily have been ‘created’ by the newcomers. The fact that for nearly 100 years large scale fishing had become a staple of Native-European interaction (before extensive regulation intervened ), and that the Aboriginal population had for centuries exchanged fish for other commodities and readily took up trade on a grand scale with European settlers, did not figure into the Judge’s calculations. He accordingly found Mrs. Van der Peet guilty.

Mrs. Van der Peet however, quickly appealed to the Supreme Court of British Columbia, asserting that the lower court had erred in finding no Aboriginal right to sell or barter fish. Justice Selbie, presiding, disagreed with the trial Judge and sided with Mrs. Van der Peet.
“It defies common sense to think that if the Aboriginal did not want the fish for himself there would be some stricture against him disposing of it by some other means to his advantage. I am satisfied that when the first Indian caught the first salmon he had the “right” to do anything he wanted with it – eat it, trade it…(or) throw it back or keep it against a hungrier time.” (Emphasis Added)

Justice Selbie further suggested that a right, based in Aboriginal antiquity, must be allowed to evolve, adjust and develop over time in response to the normal pressures that create change in practices, customs, and ‘rights’ of peoples. The “right to do anything he wanted” with the fish, noted Justice Selbie, became hedged in by custom, religion, and necessity. Another pressure creating change in the Aboriginal right was the coming of the white-man, followed by a grand market and trade in fish for money. As Justice Selbie stated:

…this was a long way from his ancient sharing, bartering and trading practices, but it was the logical progression of such… he is entitled, subject to extinguishment and justifiable restrictions, to evolve with the times and dispose of them by modern means…such as the sale of them for money. (Emphasis Added)

Justice Selbie went still further and stated that the right to trade or otherwise dispose of fish was not frozen in time, and that as such, Mrs. Van der Peet had exercised her unextinguished, evolved Aboriginal right, to sell $50 dollars worth of fresh salmon to Mrs. Lugsdin.

Hence, Justice Selbie’s conclusions suggest that he would include in the description of Aboriginal rights, those events that are clearly of post-contact development, though routed in the “ancient sharing, bartering and trading practices” of the First Nation concerned. Instead of seeing the coming of settlers as having paralyzed Aboriginal rights in their then-present form, Justice Selbie saw the coming of a market economy and other “incentives to color and change (the Aboriginal) old life” as just another set of events requiring an “adjustment” to existing Aboriginal rights. The Crown, however, disagreed, and appealed the judgment of Justice Selbie to the British Columbia Court of Appeal.

Section 1B
R. v. Van der Peet – The B.C.C.A Decision
The majority at the Court of Appeal agreed with Judge Scarlett (the trial judge) that the post-contact sale of fish by Aboriginals was “not…natural.” Justice Macfarlane, for the majority, wrote:

Counsel for Mrs. Van der Peet submits it was the year 1846 (the date sovereignty was said to be asserted) is when ‘the common law inquires as to the prior rights of Aboriginal peoples which will be continued despite the change in Sovereignty.’ I agree that aboriginal traditions existing in 1846 were accorded the protection of the common law, and treated as if they were common law rights. But, in my view, the question of what is an Aboriginal right deserving protection is not determined necessarily by reference to the activities in which Aboriginal persons were engaged in 1846. (Emphasis added)

Thus, oddly, doing something as a society was insufficient to show an existing right to do the activity. Instead, Aboriginals must show how the contentious practice was rooted in their pre-contact culture in order to be granted protection by the common law. To clarify, Justice Macfarlane put the legal question another way: “Was there a commercial aspect to the Aboriginal right to fish which was an integral part of the distinctive culture of the Sto:lo people” which could logically be linked to their pre-contact ways? The answer to that question was, unsurprisingly, a resounding ‘No’. Since in the majority’s view, whilst the common law would give effect to “those Aboriginal traditions existing at the date of sovereignty”, it would not give effect to those practices that became “prevalent merely as a result of European influences”. To do so, warned the Justices, would give “Indian fishers a preference or priority over other Canadians who seek a livelihood from commercial fishing.”

Thus rather confusingly, the majority appeared to suggest two cooperative, yet distinct, “relevant time” considerations in the characterization of what constitutes an Aboriginal practice deserving protection. Firstly, the claimed practice must logically find its roots in the pre-contact time period. Having such roots evinces, the majority submitted, the fact that the practice in question is integral to the distinctive culture of the Aboriginal group. Secondly, the relevant time for assessing the scope of the original right is the date at which Crown sovereignty was asserted. Thus, changes in the scope of the right may be recognized as forming part of its scope, so long as the transformed practice has been exercised for a sufficiently long period of time in order to show that the mutated practice has since become integral.

Section 1C
Justice Lambert - Dissent
In a cogent dissent however, Justice Lambert attempted to throw cold water on the idea that there was no logical link between the ‘minimal and opportunistic’ bartering ways of the Indians and their post-contact trade in fish. “After all”, he wrote, “the right to engage in those practices was not conferred by the Hudson’s Bay traders…the right to engage in those practices were asserted by…the Indians as their own right”. (Emphasis Added) That, Justice Lambert stated, must be remembered when describing the rights as they now exist.

Social Significance
According to Justice Lambert, the majority was too focused on precisely defining the Aboriginal right in terms of the ‘purpose’ of such practices and traditions - instead of inquiring into the Aboriginal social significance of the custom at issue. This had the effect of artificially confining the potential right into a narrow legal space. If as he asserted, the Aboriginal perspective were given an accordant level of consideration the resulting definition of Aboriginal rights would “most accord with the actual lives of the Aboriginal people (and best protect and recognize) the fundamental elements of the organized Aboriginal society.” As Chief Justice Lamer would later state, “Lambert J.A. held that the social significance of fishing for the Sto:lo was that fishing was the means by which they provided themselves with a moderate livelihood”. Thus, in Justice Lambert’s view, Mrs. Van der Peet and the Sto:lo Nation retained the right to:

…catch and, if they wish, sell, themselves and through other members of the Sto:lo people, sufficient salmon to provide all the people who wish to be personally engaged in the fishery… with a moderate livelihood.

Evolving Rights
While agreeing that those Aboriginal rights having their origin in pre-contact practices, and being ‘integral to the distinctive culture’ of a particular group, would receive protection, Justice Lambert insisted that Aboriginal rights are evolving ones:

Aboriginal rights are continually evolving and are not frozen in the form they took at the time of first contact…or at the time of sovereignty, or at any other time. It is possible that new Aboriginal rights may (arise) after the time of contact, or after sovereignty… (Emphasis added)

This position was bolstered by the fact that Section 35 of the Charter protects Métis rights as Aboriginal rights – which by definition, could only have arisen and taken shape after the time of contact.

As a Matter of Practicality
Moreover, as a practical matter, Justice Lambert noted that if a limited Aboriginal right were found to exist, it would still remain:

wiser in today’s times, instead of eating all that fish, to sell so much of it as they wished in order to have the financial resources to buy other sources of nourishment for the protection of their health.”

This, he believed, would better reflect the aim that Aboriginal rights must not become frozen ones - they must, he stated, “maintain a continuing relevance to the Aboriginal society as that society exists in the contemporary world.” (Emphasis added)

The majority however, was not swayed by the force of Justice Lambert’s arguments, and so overturned the lower court’s decision. Mrs. Van der Peet then made a final appeal to the Supreme Court of Canada.

Section 1D
R. v. Van der Peet –The S.C.C. Decision
The Majority
At the Supreme Court the debate was as divided (and heated) as it had been at the B.C.C.A. The majority decision, written and delivered by Chief Justice Lamer, was opposed by two strong dissents written by Justices L’Heureux-Dubé and McLachlin (as she was then – hereafter Justice McLachlin).

“This appeal”, Chief Justice Lamer stated, “raises the issue left unresolved in R. v. Sparrow…how are the Aboriginal rights recognized and affirmed by s. 35(1) of the Constitution Act, 1982 to be defined?” This task however, Lamer C.J. felt, could not be undertaken without first understanding why “aboriginal rights exist, and are constitutionally protected.”

The purpose of s. 35
Unlike the dicta in R. v. Sparrow, the purpose and aim of s. 35 was not characterized by the Chief Justice as an attempt to secure a “just settlement for Aboriginal peoples,” nor as a sanctioned challenge to the “social and economic” realities facing Natives. Rather, for Lamer C.J., Aboriginal rights exist and are protected “because of one simple fact”:

(W)hen Europeans arrived in North America, Aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries…what s. 35(1) does is provide the constitutional framework through which the…distinctive societies’…practices, traditions and cultures (are) acknowledged and reconciled with the sovereignty of the Crown. Aboriginal rights must be directed towards the reconciliation of the pre-existence of Aboriginal societies with…(Crown) sovereignty. (Emphasis added)

Therefore, what appeared important to the Chief Justice in any inquiry of the rights protected under s. 35, was the identification of the distinctive practices, traditions, and cultures of the Aboriginal group when Europeans arrived. Lamer C.J. found support for this proposition in the words of the famous U.S. Supreme Court jurist, Chief Justice Marshall, in the 1832 case of Worcester v. Georgia. There, the U.S. Supreme Court overturned the conviction of a non-Aboriginal man for the Georgia-State offence of living on reserved land. In holding that the law was ultra vires Georgia’s powers (since it applied to land under Cherokee governance) Chief Justice Marshall stated:

It is difficult to comprehend the proposition that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the…other, or that the discovery of either by the other should give the discoverer rights in the country which annulled the pre-existing rights of its ancient possessors…Indian nations (retain) their original natural rights. (Emphasis Added)

For the majority, therefore, Aboriginal rights could simply be characterized as vehicles through which the pre-existence of rights-bearing peoples are reconciled with the legal perspectives of European settlers and their current assertion of political and legal dominance. Section 35 was the apparatus chosen by them to recognize and constitutionalize this simple “fact.”

The Content of s. 35 Rights
After examining the purpose underpinning s. 35, it remained for the Court to determine what the contents of these pre-existing ‘natural rights’ were. Could it be that the right to fish, for example, asserted in contemporary times by Mrs. Van der Peet, would include all the changes that sprung from hundreds of years of intercultural experience and development? Were Aboriginal rights confined to those customs originally practised in ‘primordial simplicity and vigor’, or need they only have their origin (genesis) in ancient Aboriginal practices? Indeed, the question appeared to be, ‘could Aboriginal rights change over time?’

On this point the majority was quite clear. Any examination of the contents of Aboriginal rights must be directed towards the identification of “the crucial elements of pre-existing distinctive societies - (the) practices, traditions and customs central to the Aboriginal societies that existed…prior to contact with Europeans.” (Emphasis Added) Contrary to the remarks of Justice Lambert in his dissent at the B.C.C.A. - that new Aboriginal rights might arise after contact or even sovereignty - Aboriginals could not, according to Lamer C.J., summon “new” rights for recognition which had developed in the post-contact period.

The relevant Time
Yet, if old rights were frozen in regards to scope, it was equally clear that the majority would not accept a position whereby, for example, fishing by spear in pre-contact times would only establish a continuing right to fish by spear. On the contrary, it appeared the majority would permit a limited evolution of such rights with regard to their mode of execution. Interestingly Lamer C.J. suggested that this was the “means by which a “frozen rights” approach…(would) be avoided.” Thus, unlike the dicta of Justice Selbie in the B.C. Supreme Court, who suggested that the very substance of Aboriginal rights could ‘adjust’ to changing circumstances over a period of time (such as the coming of the European and his ways), Lamer C.J., on behalf of the majority wrote that:

The influence of European culture (and its arrival on these shores) will only be relevant to the inquiry if the practice, custom or tradition can only be said to exist because of the influence of European culture…where the custom or tradition arose solely as a response to European influences…the practice will not meet the standard of recognition of an Aboriginal right.

This suggested that judicial inquiry must be directed towards discovering what is “truly” Aboriginal (i.e. not European). If Mrs. Van der Peet could demonstrate, for example, that her people during the relevant pre-contact time-period engaged in fishing for commercial gain, she could demonstrate a modern right to continue to do so – barring any extinguishment of the right prior to 1982. Unfortunately for Mrs. Van der Peet, the majority found no commercial fishery link with the Sto:lo’s ancient past. At paragraph 82, Chief Justice Lamer wrote:

While the evidence clearly demonstrated that fishing for food and ceremonial purposes was a significant and defining feature of the Sto:lo culture (in pre-contact times) this is not sufficient, absent a demonstration that the exchange of salmon was itself a significant and defining feature of Sto:lo society, to demonstrate that the exchange of salmon is an integral part of Sto:lo culture.

It appears, then, that in regard to both the purpose of s. 35 and the content of rights protected under the constitutional provision, the ‘relevant time’ for determining Aboriginal rights is the pre-contact era. This is despite the fact that it is rather odd to speak of such rights prior to their inclusion within Anglo-Canadian law at the time of sovereignty. The majority firstly notes that s.35 protects “pre-existing rights. Secondly, in regards to the content of protected rights, the majority asserts that European influences must be considered irrelevant and unenforceable. Lastly, however, and somewhat oddly, the majority notes that influences which merely change the mode of exercising such rights, such as a temporal transition from spear-fishing to hook fishing, or from hooks to nets, will be allowed to shape the right’s execution in modern times. This, they contend, is the method through which a frozen-rights approach is avoided.

Section 1E
The Minority (Justice L’Heureux-Dubé)
Writing as one of the two dissenting voices at the Supreme Court, Madame Justice L’Heureux-Dubé began by agreeing with the majority that this case asked for a broader analysis of the court. ‘Not only must the court determine whether the Sto:lo had a right to sell or barter fish,’ she asserted, but more importantly, ‘the court must also determine how to interpret “the nature and extent of constitutionally protected rights”’. Disagreement however, between L’Heureux-Dubé J. and the majority, soon surfaced in regards to the method of analysis undertaken by the majority. As Justice L’Heureux-Dubé wrote, she must sharply “diverge…(with the) approach” of the majority.

A Broader Approach
This divergence of opinion occurred, as she put it, because the “nature and extent of Aboriginal rights…is fundamentally about characterization.” While the majority chose an approach that focused on “discrete” practices of specific Aboriginal groups at specific times in their history, Justice L’Heureux-Dubé would rather have seen them use a more “generic” or “higher level of abstraction” approach to characterization – one which would have given primary consideration to the values of the Aboriginal group affected.

This broader method, she suggested, had two primary benefits. A higher-level ‘characterization’ would, she contended: 1) place the emphasis on the social significance of such practices to Natives, rather than on the particularity of the practice itself, and 2) would extricate the court from the messy business of determining for Natives what practices are important to them.

Significance of Activities to Aboriginal Peoples
The first benefit of a broader approach to characterization is that it would ensure that the examined Aboriginal practice would not be artificially separated from the cultural and practical context from which it had sprung. Thus, “instead of focusing on discrete practices…(or) catalogue of individualized practices,” Justice L’Heureux-Dubé’s approach would focus on the distinctive culture of the Aboriginal group – of which specific practices represent mere ‘manifestations’ of something culturally greater or deeper. Just as European-based law would decline to endorse a specific catalogue of acceptable practices constituting the generic right of “free speech”, for example, the court should not, she contended, permit a more restrictive device for the discovery of practices which might logically be instances of a broader Aboriginal right. This method would also avoid the result achieved by the majority, whereby clear evidence of limited ‘commercial’ fishing activity could be uncritically cast off as simply something incidental to an integral right to fish.

Secondly, Justice L’Heureux-Dubé noted that her broader approach would extricate the court from the messy business of determining for Aboriginal peoples what constitutes an integral, distinctive practice. The approach of the majority, she stressed, leads to confusion with regard to the terms ‘distinct,’ and ‘distinctive’. While ‘distinct’ suggests a “comparison and evaluation from a separate vantage point, ‘distinctive’ requires the object (practice) to be observed on its own.” Hence, in relation to what is distinctive and integral to Native culture, Justice L’Heureux-Dubé sternly warned:

It is almost trite to say that what constitutes a practice, tradition, or custom distinctive to Native culture and society must be examined through the eyes of Aboriginal people, not through the non-native majority or the distorting lens of existing regulations. (Emphasis added)

The Relevant Time
Borrowing from the ideas and words of Justices Selbie and Lambert before her, Justice L’Heureux-Dubé continued the attack, now in regards to the relevant time period suggested by the majority:

“This test embodies inappropriate and unprovable assumptions about Aboriginal culture…forc(ing) the claimant (and the court) to embark upon a search for a pristine Aboriginal society”.

This quest for pre-contact ‘pureness’ betrayed more than a simple desire to uncover the ancient roots of modern Aboriginal practices. In particular, it assumed that Aboriginal undertakings developed in the post-contact period were somehow not really ‘Native.’ This assumption, L’Heureux-Dubé J noted, amounted to “defining Aboriginal culture and Aboriginal rights as that which is left over after the features of non-Aboriginal cultures have been taken away.” Thus, the majority, it seemed, would have us believe that practices, if not grounded in Aboriginal pre-contact customs, should simply be understood as learned or mimicked behaviors, separate from - and incidental to - real Aboriginal ways. Such a narrow approach, Justice L’Heureux-Dube suggested, “overstates the impact of European influence” and mistakes the ‘relevant time’ as a moment which should be understood, not as a time of cultural confluence, but as a “turning” or crystallizing point in the development of Aboriginal culture. Such an approach, she believed should not be not used to impose a “cut-off (date) for the development of Aboriginal practices.”

Justice L’Heureux-Dubé’s Substantial Continuous Time Period Test
To Justice L’Heureux-Dubé, an approach which halted Aboriginal development at the time of contact presented two glaring inconsistencies - one with a plain reading of s. 35(1), and the other with the established common law Doctrine of Continuity.

The Constitution, she stressed, and in particular s. 35, upon a plain reading, appear to protect Métis rights as Aboriginal rights under its broadly worded protective umbrella. How could it be then, Justice L’Heureux-Dubé questioned, that the Métis, (a people who could not have existed before contact) would be entitled to have their post-contact practices protected under constitutional provisions which could deny “pureblood” Aboriginals the same? Was the majority telling the world, she wondered, that different Aboriginal groups were better, or worse, at resisting the influences of European culture – and that some and not others, were entitled to incorporate European practices into their culture, while others could not?

In response to this seemingly incongruous development of Aboriginal law, Justice L’Heureux-Dubé wrote:

It appears that the protection (of s. 35) should not be limited to pre-contact practices, traditions and customs. Section 35(2) of the Constitution Act, 1982 provides that the ‘Aboriginal peoples of Canada includes the Indian, Inuit and Métis peoples of Canada.’ Obviously, there were no Métis people prior to contact with Europeans as the Métis are the result of intermarriage between Natives and Europeans.

Consequently, for Justice L’Heureux-Dubé, since Métis rights are Aboriginal rights, and must have developed in the post-contact period, “it must be possible for Aboriginal rights to arise after British sovereignty.” Even if one were willing to unequally protect the rights of part-European peoples above others’ Justice L’Heureux-Dubé felt this was clearly at odds with a plain reading of the “text of the constitution” – a text that made no differentiation, or call for differentiation, between these two Aboriginal groups.

Therefore, like Justice Lambert had in his dissent at the B.C.C.A., Justice L’Heureux-Dubé asserted that the development of Aboriginal culture should not be frozen “as of any particular date”. Instead, Aboriginal rights must be permitted to “evolve so that Aboriginal practices, traditions and customs can maintain a continuing relevance to Aboriginal societies…in the contemporary world.” Thus, just as Justices Selbie and Lambert had, Justice L’Heureux-Dubé wrote:

Instead of considering (contact) as the turning point in Aboriginal culture, British Sovereignty would be regarded as having recognized and affirmed practices…which are sufficiently significant and fundamental to the culture and social organization of Aboriginal people. This idea relates to the ‘doctrine of continuity’…to the effect that when new territory is acquired, the lex loci of organized societies, here the Aboriginal societies, continues at common law.

However, from what Justice L’Heureux-Dubé could decipher, an application of the majority-endorsed approach was glaringly inconsistent with the ‘doctrine of continuity.’ Recognizing and giving life to the lex loci of specific Aboriginal groups, Justice L’Heureux-Dubé asserted, complemented the precedent set in Sparrow by Chief Justice Dickson: The term, “‘existing Aboriginal rights’ must be “interpreted flexibly so as to permit…their evolution over time.” This, she reasoned, was what is determinative of Aboriginal rights: That the practice is “sufficiently significant and fundamental” to the Aboriginal group – not merely its ‘prior-to-contact’ existence.

From this Justice L’Heureux-Dubé reasoned that a practice undertaken for a mere 20 to 50 years might be sufficient to show the significance of the practice. This, unlike trying to uncover what was, or was not, integral to pre-contact Native groups, could easily be determined by simply demonstrating that the practice had been undertaken for a “substantial and continuous period of time”. If the practice has been undertaken for that long, it is because it acquired integralness within the distinctive culture of the Native group. ‘This fact alone’ would mandate its protection under s. 35 as an existing Aboriginal right.

The result of Justice L’Heureux-Dubé’s dissenting views inevitably led her to a different result than that of the majority of the Supreme Court. Under Justice L’Heureux-Dubé’s broader approach it could hardly be disputed that Mrs. Van der Peet retained an Aboriginal right to barter or trade fish for her sustenance. The anthropological evidence tendered at first instance determined that the Sto:lo had engaged in the exchange of fish, prior to contact. Thus, when coupled with the fact that, 1) the sale of fish intensified in the post-contact era and, 2) continued today, it seemed clear that the practice must still be “significant and fundamental to the culture and social organization of the Sto:lo”. It should be, therefore, considered a right protected under s. 35 of the Constitution Act, 1982.

Section 1F
The Minority (Justice McLachlin)
While Justice McLachlin agreed with many key aspects of Justice L’Heureux-Dubé’s dissent – such as the assertion that history not be permitted to turn vibrant rights into relics - she also agreed with the Chief Justice that history is important to the determination of rights protected under s. 35. The question for her, however, was what history was important, and to what degree that history would dictate the modern exercise of original (ancestral) practices.

Like Justice L’Heureux-Dubé, Justice McLachlin criticized the majority for their purposefully narrow characterization of Aboriginal rights. In their majority judgment, she felt, the court had failed to recognize the dynamic nature and flexibility of constitutional rights. By trying to fit modern rights into narrowly defined ancient practices, the majority threatened to foreclose any analysis before it began. For her, rights were almost always “cast in broad terms…remain constant over the centuries…(and) take many forms and vary from place to place and from time to time.” This traditional approach should be no different when dealing with constitutionally protected Aboriginal rights.

To fail to recognize this distinction between rights and the contemporary form in which the rights are exercised is to freeze Aboriginal societies in their ancient modes and deny them the right to adapt, as all peoples must, to the changes in the society in which they live. (Emphasis added)

“My concern”, she wrote, “is that we not substitute an inquiry into the precise moment of first European contact…for what is really at issue…the ancestral customs and laws observed by the indigenous peoples of the territory.” These, she noted, according to the common law doctrine of continuity, persist at common law and so must be accorded due protection.

The Relevant time (Justice McLachlin)
For Justice McLachlin then, the relevant time for determining Aboriginal rights could not be simplistically found in the “magic moment of European contact.” Aside from the practical difficulties of determining what exactly were integral, distinctive Aboriginal practices - pre-contact - a zealous search for a pristine Aboriginal society negated the fact that the “way rights are practiced will evolve and change with time” with or without European influences.

Instead, Justice McLachlin asserted that the court should direct its attention to a more fundamental issue – to determine ‘what broadly-defined laws and customs existed pre-contact, and which remain linked to modern-day practices.’ In Mrs. Van der Peet’s situation, Justice McLachlin would define the custom or law at issue as a traditional right to fish for the purpose of sustaining the Sto:lo Nation and its members. This broad historical approach would, she believed impose its own limits on the exercise of Aboriginal rights, without the inherent difficulties attendant in the Chief Justice’s “integral to a distinctive Aboriginal society prior-to-contact” test.

Historical Empirical Approach
Rather than beginning, as the majority had, with the question, ‘what is the content of the ancient Aboriginal right?’, Justice McLachlin would prefer the court start with a “look to history to see what sort of practices have been identified as Aboriginal rights in the past.” Here, she suggested, one would find a “golden thread” running through hundreds of years of ‘interface’ between Aboriginals and Europeans.

The first…general principle (established through the common law and history of settlement is that) the Crown took (possession) subject to existing Aboriginal interests in the lands (and waters) they traditionally occupied…the second…is that the interests which Aboriginal peoples had in using the lands (and waters was) for their sustenance… (Emphasis added)

The first general principle, looked much like the common law ‘doctrine of continuity’ expounded by Justice L’Heureux-Dubé. The second principle, that Aboriginals must be allowed to retain the use of lands and waters for sustenance purposes was, Justice McLachlin stated, a fundamental Aboriginal right supported by both the common law and an empirical historical analysis of Crown-Aboriginal interaction. A right so characterized also boasted sufficient breadth to allow for multiple, co-existent practices which could be said to fall within its normative, conceptual, boundaries.

The only question remaining then, was whether Mrs. Van der Peet’s actions looked “more like the sort of thing which the law has recognized in the past” - or more like something wholly devoid of historical connection. This, Justice McLachlin stated, was the “time-honoured methodology of the common law.”

Section 2
Academic Criticisms and Case Law Developments
“The Master’s tools will never dismantle the Master’s house”

Section 2A
In the years since the decision, academics and legal commentators have spilled much ink debating the issues raised in Van der Peet. In some areas of Aboriginal rights law, most notably in regards to Aboriginal title and Métis rights, there has been some give in the Court’s otherwise steadfast adherence to the Van der Peet test – which is perhaps a testament to the usefulness of so much ‘spilt ink.’ Yet in relation to issues of “classical” Aboriginal rights law courts have remained largely committed to the idea that Aboriginal practices-cum-rights be judged against pre-contact practices – a fact that many assert has effectively fossilized Aboriginal rights in judicial amber. In this regard, it might be said, academics and legal commentators have thus far failed to dislodge the Court from what most, if not all, have come to regard as a deeply flawed ‘relevant time’ requirement for the determination of Aboriginal rights.

In the coming pages this paper will look at some of these criticisms, and in particular focus on the interplay between the ‘relevant time’ requirement and case-law since Van der Peet. In Section 2B, below, this paper will argue that, despite 10 years of fervent and often stinging attacks, the Supreme Court has largely resisted calls for a test that permits greater cultural evolution of Aboriginal rights - instead preferring to maintain a time requirement that, in its current form, encourages rather than discourages the freezing of Aboriginal rights in pre-contact form. In Section 2C this paper will move on to critically assess how courts have (in some instances) adapted the time requirement to fit the particular needs of specific Aboriginal rights cases, such as where title and Métis rights are involved. These adaptations have, it is argued, highlighted the general inappropriateness of a pre-contact time requirement for the determination of Aboriginal rights, and produced a situation in which the need for a uniform approach to the “time question” is now evident. It is to an examination of these works, case law, and commentary that we now turn.

Section 2B
Cultural Evolution and the Notion of “Integralness”
Perhaps one of the most obvious of criticisms leveled against the ‘pre-contact integral-distinctive test’ is that it has failed to capture, as Chilwin Cheng writes, “the social dynamism inherent in all forms of culture.” Just as British culture now, and at the time of exploration, remains a mishmash of Indo-European, Germanic-Latin, and Franco and Anglo-Saxon origin, much the same may be said of the Iroquois and Cree, for example. Neither can claim to be pure laine – nor, conceivably, would one want to do so.

In late 1997, not long after the Supreme Court handed down its decision in Van der Peet, professors Russel Barsh and James Youngblood Henderson wrote a stinging critique concerning the court’s apparent penchant for cultural stoicism. In their article, the professors suggested that the court had fundamentally misapprehended the organic nature of ‘culture.’ Indeed, they noted that “the concept of ‘culture’ is inherently cultural” and open to wide interpretation. Cultural elements, much like parts of an ecosystem, cannot “exist independently of one another…the loss of one element…compromise(s) the perpetuation or enjoyment of others.” In Van der Peet however, the authors suggest that the concept of ‘culture’ wrongly came to mean “a fixed inventory of traits”. Each element was presumed to be independent of other elements, and some, and not others, more important to the distinctive culture of the group in question. The Court’s interpretation failed, the authors suggested, to capture the dynamic and ever-changing, features of the sociological phenomena called ‘culture.’ “The notion of centrality in human society is,” they suggested, “as absurd as arguing that an ecosystem remains the same after the removal of a few ‘incidental’ species.”

As Justice L’Heureux-Dubé stated, these “inappropriate and unprovable assumptions” about the nature of culture, place judges in a situation ill-suited to their expertise. Moreover, it forces judges to play the “role of the ethnohistorian, attempting to discern the distinctive features of Aboriginal societies in the distant reaches of Canadian history.” Professor Slattery writing on the subject, recently suggested that:

(T)he Court’s role is not that of a forensic ethnologist, attempting to reconstruct the internal workings of long-vanished Aboriginal societies from meager historical clues…The Van der Peet test assumes that the character and scope of Aboriginal rights are matters determined simply by historical and anthropological evidence.

Thus, as Barsh and Henderson note, the ‘character and scope’ of culture/rights cannot be considered static or frozen in time if we are to avoid treating Aboriginal rights as an ethnologist would – as mere historical curiosities. Instead, culture, and our collective notion of what is entailed in our conception of particular cultures, must remain fluid and alive to the possibility of change, both from within and without. Why should it be, Barsh and Henderson ask, presumed that:
Aboriginal societies are less dynamic or creative than other cultures, or that they must remain stuck in time in order to remain authentic (and thus deserving of rights protection)? (Emphasis added)

Yet, while the Court has paid lip service to a particular conception of cultural evolution, the kind of growth permitted by the courts has thus far remained inadequate in helping Aboriginal peoples avoid severe ‘rights frostbite’. As Professor Morse, Lecturer in Law at the University of Ottawa, notes, evolution - if admitted by the courts - remains restricted to the “method and manner of exercise of an approved activity”, not the activity itself.

This unwillingness to incorporate a broader notion of evolution continues today, as recently exemplified in the 2006 case of R. v. Sappier, Grey . There, the Supreme Court took pains to highlight its rejection of a test which would ‘freeze’ a right to harvest wood in pre-contact form. ‘This Aboriginal right,’ the court asserted, ‘must not be limited to the building of “wigwams, baskets and canoes.”’ Instead, the court suggested, modern Aboriginals must be able to build modern dwellings, modern boats, and the like. However, the court then went on to reject the respondents’ claim, to harvest timber for ‘personal uses’, as it was too broad a characterization – one that might incorporate the sale or barter of wood. Even if the proceeds of such a sale were put towards the building of modern homes, the court contended, the sale of such products could not be said to be a pre-contact practice-cum-right.

Section 2C - Analysis
With respect, it appears that this narrow conception of evolution proffered by our law courts results in essentially a right to construct bigger wigwams etc. (‘modern dwellings’) – not, as the justices contend, a commitment to ensure the continuing vitality of Aboriginal cultures. In this way, the court continues to misunderstand, or misapprehend, the meaning of the term ‘frozen rights.’ As Brian Slattery asserts, the court’s narrow conception “excludes many activities that became central to the lives of Aboriginals in the post-contact period.” This, he suggests, makes winning back Aboriginal rights a pyrrhic victory, since hard-won rights retain only a “limited ability to serve the modern needs of Aboriginal peoples”. R. v. Sappier unfortunately confirms, rather than denies, the truth of these statements, illustrating just how little the court’s views have changed nearly 10 years after Van der Peet.

In stepping back from the specifics of that recent case however, one must also inquire into the practicality of denying a People the rational/logical evolution of their ancient practices. It is an utter mystery why Aboriginals continue to be denied the ability to maintain their unique cultures while simultaneously harnessing the power of modern practices - such as an economy and division of labour existing within Aboriginal societies today. The fact that Aboriginal peoples did not engage ‘wholeheartedly’ in fish selling (for example) 400-plus years ago is not surprising – what should be surprising however, is that they continue to be denied the very basic freedom to do so now. Freezing rights at the time of contact is, to say the least, denying the inherent ability of cultural groups to incorporate and undergo changes that might bring benefit to those who live in the modern and intercultural Canadian context.

Moreover, this denial may be contrary to the recognized common law doctrine of continuity. As noted above, when Europeans settled in what is now Canada, their laws were not taken to extinguish the lex loci of Aboriginal peoples. Rather, as Justices L’Heureux-Dubé and McLachlin rightly assert, Aboriginal laws were absorbed into, and received protection from, the common law. As peoples with the evident capacity to create, evolve, and enforce cultural norms then, it remains incumbent upon the Euro-Canadian regime to explain how this capacity became extinguished at the point of contact. Failing that, it must be admitted that “Aboriginal peoples…(still retain) the right to maintain and develop their systems of customary law.” (Emphasis added) This will undoubtedly include the right to make ancient rights relevant to today’s Aboriginal communities.

Finally, we must also question the assumption that “Euro-Canadian jurists…can sit in judgment of what” is of central importance to Aboriginal culture groups, now or then. Part of this problem is due to the fact that there is a “tendency on the part of judges to assemble a ‘cut and paste’ version of history.” Taking pieces of history comfortably recognizable to the Western-trained eye, while at the same time either diminishing, or wholly dismissing parts of history that fit uneasily into the Euro-Canadian historical narrative. One must agree with Barsh and Henderson when they assert that such practices belie an egotistical and paternalistic mindset: ‘Who can reasonably believe that any society can be adequately captured in a handful of discrete practices considered integral to that culture by a panel of ‘outsiders’’? To continue upon this path is to remain trapped in the disgraced language, practice, and understanding of ‘our’ colonial past. In a modern and culturally diverse Canadian context, this practice should no longer be tolerated or validated by our highest courts.

Section 2D
What Time Is It? – Judicial Discomfort with the Pre-Contact Time Requirement
It is perhaps in response to some of the criticisms outlined above that the Supreme Court has, more recently, signaled mounting discomfort with a strict application of the pre-contact time requirement. In particular, courts have signaled their willingness to adjust (some might prefer the words ‘tinker with’) the time requirement in cases where its application is plainly inappropriate – instead preferring to look to the time of ‘sovereignty’ or date of ‘effective control’ as an alternative time-test. Below, this paper will focus on two recent decisions, Delgamuukw v British Columbia – an Aboriginal title case, and R. v. Powley – a Métis rights case, to illustrate this partial retreat by the Supreme Court from the strict use of the pre-contact time requirement.

Section 2E - Delgamuukw
The reader will remember, no doubt, that the question, “what time is it?” is an important one in Aboriginal law, since according to the prevailing judicial understanding of s. 35 the time period considered relevant is the point at which the content and very existence of Aboriginal rights is to be judged. Thus it is important to note that just a few months after the Van der Peet decision the Supreme Court was presented with a case that required the justices to adjust the relevant time requirement portion of the Van der Peet test. In Delgamuukw v. British Columbia an application for declaration of “ownership” of some 58,000 acres of Crown land was sought by a number of Aboriginal hereditary chiefs. Having wound its way through the lower courts for several years however, the appellants dropped their claims to “ownership” – preferring instead to assert a claim to Aboriginal title over the disputed lands. Thus, it had to be determined what the content of Aboriginal title is, and how it is protected within s. 35 of the Constitution Act, 1982.

Chief Justice Lamer, striking a balance between the appellants’ and the Crown’s positions, suggested that the content of Aboriginal title was “more than the right to engage in specific (Aboriginal rights)” on Aboriginal title lands. “Rather”, he wrote, “it confers the right to use land for a variety of activities, not all of which need be aspects of practices, customs and traditions which are integral to the distinctive cultures of Aboriginal societies.”

Thus it appeared that there was no need to have Aboriginal groups produce a list of pre-contact practices amounting to title, or to show how that title would be integral to the distinctive culture of the group. Integralness would be presumed by proof of possession and the practices permitted on lands held pursuant to such title would be virtually unrestricted. In this way Aboriginal title was different from all other Aboriginal rights.
However, in another important way the Aboriginal umbrella right of title was vastly different from other rights since it was correctly considered a burden on the Crown’s underlying title. This fact, suggested the Chief Justice, required an “adaptation of the test laid down in Van der Peet” - in particular, it required a different relevant time period requirement for the establishment of Aboriginal title.

This adaptation of the test was necessary, the Court asserted, for two related reasons. Firstly, since Aboriginal title is considered a burden on Crown radical title, it would “make (little) sense to speak of a burden before the underlying title existed” i.e. before the time sovereignty was asserted. As Chief Justice Lamer wrote:

The Crown did not gain (radical) title until it asserted sovereignty over the land in question. Because it does not make sense to speak of a burden on underlying title before that title existed, Aboriginal title crystallized at the time sovereignty was asserted.

Importantly, proof of occupancy grounding Aboriginal title could be found both in the “physical reality at the time of sovereignty” through acts of possession, and, in evidence of Aboriginal laws and patterns of land holding existing at that crucial moment in time. In this way, the Court could take into account both Aboriginal and Common law perspectives regarding the nature of Aboriginal title.

Secondly, the Court considered the adaptation of the time requirement necessary as a matter of practicality. “It appears”, stated Chief Justice Lamer, “that the date of sovereignty is more certain than the date of first contact.” This rationale for time-requirement change, believed the Chief Justice, found unflagging support in academic literature and took the task of determining title a long ways from the difficulty, highlighted by many-a-critic, of having to identify the precise (imprecise?) moment Aboriginal groups first came into contact with European culture.

Section 2F – R. v. Powley
If Delgamuukw represented cracks in the judicial time requirement mortar, however, then the Métis rights case of R. v. Powley has threatened to blow the pre-contact time requirement house to pieces. Chief Justice Lamer, long before the case arrived at the doors of the Supreme Court in 2003, sensed the Métis issue’s uneasy fit with the Van der Peet pre-contact time requirement. Justice L’Heureux-Dubé, for her part, had raised the red-flag when she suggested that the Métis issue highlighted important questions about the efficacy of a pre-contact time test – since clearly Métis peoples could not have existed pre-contact. In Van der Peet Lamer C.J. had realized this problem too and cautioned that, although section 35 seemed to link Métis claims with other Aboriginal claims, the unique history of both types of Aboriginal groups might mandate the use of different criteria for the determination of s.35 rights. “The manner in which the Aboriginal rights of other Aboriginal peoples are defined”, he stated, “is not necessarily determinative of the manner in which the Aboriginal rights of Métis are defined…The fact that, for other Aboriginal peoples, the protection granted by s.35 goes to the practices and customs…of Aboriginal peoples prior to contact, is not necessarily relevant to the answer which will be given to” Métis Aboriginal claims. What the solution would be however, must “await determination in a case in which the issue arises.” By the time the R. v. Powley had wound its way to the Supreme Court, it was obvious that this would be the case the Chief Justice had predicted would precipitate a determination of the peculiarities specific to Métis Aboriginal rights claims.

The facts of Powley are straightforward. In the fall of 1993 Steve and Roddy Powley, both members of the Sault Ste. Marie Métis community, shot and killed a bull moose not far from their home. The father, Steve Powley, not having a valid hunt tag distributed by the Ontario Ministry of Natural Resources (MNR) authorizing him to harvest moose, affixed to the ear of the dead animal a handwritten tag displaying – among other things - his Métis and Aboriginal Association membership number. On that tag, Mr. Powley also indicated that the animal had been killed in order to provide meat for the winter. Soon after arriving home with their moose, Mr. Powley and his son Roddy were charged with unlawful hunting.

Officially, the question asked of the Court was whether the provisions of the Ontario Game and Fishing Act (under which the Powleys had been charged) unconstitutionally infringed the Aboriginal rights of the accused to engage in hunting for food purposes. Perhaps more importantly however, and for our purposes so, the Court had to determine how to “modify the elements of the pre-contact test to reflect the history and post-contact ethnogenesis of the Métis.” At paragraph 17 of the judgment, the Court wrote:

The purpose of s. 35 as it relates to the Métis is…different from that which relates to Indians and Inuit. (Unlike in the determination of Indian and Inuit rights, where the focus is on prior occupation) the constitutionally significant feature of the Métis is their special status as peoples…The inclusion of the Métis in s. 35 represents Canada’s commitment to recognize and value…distinctive Métis cultures…

Thus, having Métis demonstrate that their integral practices pre-date contact would plainly negate the capacity of Métis peoples, as peoples, to construct cultural practices capable of being recognized as rights within Canadian common, and constitutional law. The court therefore, determined that it must (rather unsurprisingly) “modify the pre-contact focus of the Van der Peet test when the claimants are Métis (so) that we recognize and protect those customs and traditions that were historically important features (of Métis communities) prior to the time of effective European control”. (Emphasis Added)

This unique history, asserted the Court, could most appropriately be “accommodated by a post-contact but pre-control test that identifies the time when Europeans effectively established political and legal control in a particular area.” This adjustment to the Van der Peet test would enable the Court to identify the practices that predated the imposition of European laws and culture over Métis peoples. In Steve and Roddy Powley’s circumstances, and in the region of Sault Ste. Marie, the time of effective control could be pegged somewhere around the mid-19th century. Prior to this period, the trial judge found, Métis communities thrived largely unaffected by European laws and customs.”

Section 2G – Analysis
As Janice Gray noted in a 1997 article on Aboriginal rights, “why the majority decided that the time frame would be set as pre-contact” in Van der Peet is, to say the least, “a little bewildering.” Had she written those words after Delgamuukw and Powley however, her bewilderment might very well have been transformed into simple confusion over the matter. This is because, the test, as articulated ten years ago in Van der Peet, simply does not fit the variability required of Aboriginal rights issues without the need for drastic re-constructive surgery. This is evident from the above case reviews.

Importantly, professor Brian Slattery has pointed to some interesting paradoxes which arise from the Court’s use of differing time period requirements. In Delgamuukw for example, the Court emphatically asserted the appropriateness of a pre-sovereignty time requirement because, as Lamer C.J. put it, “it does not make sense to speak of a burden on the underlying title before that title existed.” Yet, as Professor Slattery notes, this logic should be applied to other Aboriginal rights, not simply land rights, since all rights “pose legal limitations or burdens on the Crown’s sovereign rights under Anglo-Canadian law – limits that only arise at the time of sovereignty.” As a concrete example, Professor Slattery suggests we:

…consider the (generic) right to cultural integrity, which binds the Crown to respect the integral elements of an indigenous culture. In the Court’s words, it does not make sense to speak of such a limit on the Crown’s sovereignty before sovereignty itself existed.

Thus, we have a convincing argument that the date at which Aboriginal practices should be judged no earlier than the date of sovereignty. It does not make sense, as Professor Slattery has argued, that while Aboriginal rights themselves come into existence at the time of sovereignty, “the content of these rights was determined by social conditions prevailing” centuries before.

It is also important to note, in conjunction with the doctrine of continuity and Justice McLachlin’s higher level of Abstraction thesis, that Delgamuukw makes a convincing case that Aboriginal practices continue to possess the capacity to undergo meaningful evolutionary change (at least on Aboriginal title land). In Delgamuukw, the Court accepted the fact that, in places where Aboriginal title could be shown to exist, it would be possible for Aboriginal peoples to engage in practices with no historical connection to pre-contact customs or traditions. This, the justices stated, was so because such practices were parasitic to the underlying right – the right of Aboriginal title - held for the use and benefit of the bands which occupy them. Mining, gas, and oil exploration were all considered possible uses to which lands held under Aboriginal title might be put. Thus, Aboriginal practices, it appears, can evolve even after the date of sovereignty; likewise it is clear that Aboriginal communities have the capacity to continue to determine the uses to which their lands might be put – even if such uses and practices do not amount to Aboriginal ‘rights’ per se.

However, just like Delgamuukw, the decision of R. v. Powley has lent critical weight to calls for change in the relevant time requirement. By adjusting the relevant date to incorporate the cultural advances of Métis peoples during the period between contact and effective control, the injustice of freezing Indian and Inuit rights at a substantially earlier date has been plainly highlighted. Professor Slattery suggests that this has created an unintended, yet mischievous and pernicious, inequality between constitutionally co-protected peoples. The interim period between contact and control was a time of great commercial and cultural advancement on this continent - as two worlds collided and formed the prosperous nations of the United States and Canada. Denying Indian and Inuit the changes instigated by this unique coalescence of cultures is so plainly unjust that it unlikely that Canada’s courts will be able to continue to deny a need for change. As just one example of the dangers of the status quo, professor Slattery asks readers to imagine two hypothetical Aboriginal peoples. One is Métis, the other Indian; they live beside on-another and are related by blood. By the period of ‘effective control’ both groups had become heavily involved in the fur trade, trading both with one-another and with European settlers. Via Powley the Métis group would be entitled to continue to trade and prosper from their constitutionally protected practices. Their Indian neighbors and brethren, on the other hand, stuck with a pre-contact time test, would clearly be excluded from the fruits of the trade. Is there any way that this can be considered a just result? Furthermore, one should note that this current situation, if left standing, will create an ever-greater “patchwork” of variable acceptability of Aboriginal cultural evolution based on the “idiosyncrasies of colonization over particular regions” and peoples within Canada. Just as the Supreme Court noted in R. v. Coté this “static and retrospective interpretation of s. 35(1) cannot be reconciled with the noble and prospective purpose of the constitutional entrenchment of Aboriginal” rights. One can only hope, however, that the Court will find the courage to take this, its own, medicine.

Thus, while Powley has been called a “momentous victory” for Canada’s Métis peoples it has effectively left Indian and Inuit claimants playing catch up. However, if Delgamuukw and Powley are indicative of future judicial reasoning trends, and not merely cases which tweak Van der Peet, then there may well be cause for cautious celebration. Perhaps, however, in stepping back from the specifics of these watershed cases, they ought to be considered valuable for what they have laid bare: the general inappropriateness of a pre-contact time requirement for the determination of Aboriginal rights generally. Indeed, it can confidently be stated that they have produced a situation in which the need for a uniform approach to the “time question” has become painfully evident. They are, no doubt, nothing short of a call to action.

Section 3
The Living Tree; Charting New Paths with Old Maps
Section 3A
In this 3rd and final section, this paper will explore two co-related ideas important to the continuing debate over the pre-contact time-requirement in relation to constitutional law and interpretation. One of these ideas, expressed by Justice L’Heureux-Dubé in Van der Peet, regards “the nature and extent” to which Aboriginal rights are fundamentally about “characterization.” For her, it will be remembered, it was important that Aboriginal rights be cloaked in broad, rather than narrow, language. Justice McLachlin, likewise, suggested the second ‘idea’ when she accused the majority in Van der Peet of foreclosing debate on the issue before it even began. Instead of utilizing deductive reasoning techniques, she suggested, the Court should inquire into the ‘broadly defined laws and customs’ existing in pre-contact times in order to arrive at a conclusion based on the evidence available - not on preconceived premises or theories of Aboriginal rights law.

What these ideas point to , it is submitted, is the need to treat constitutionally protected Aboriginal rights as we might any other constitutionally protected practice: as Living Rights. This is not done when a pre-contact time requirement is imposed on Indian and Inuit claimants. In Reference re. Secession of Quebec for example, the Supreme Court stressed that “the Constitution is not a straightjacket” but rather more akin to “living tree” shifting and swaying under the force of evolutionary winds. The Court, time and again, emphasized the evolutionary character of our Constitution, suggesting that the written provisions themselves represented only a small portion of what was truly embodied in the document. The Constitution, they asserted, is supported by a network of unstated assumptive principles which, when combined with the written text, are together capable of reflecting the “aspirations” of Canadians. Thus, there can be little doubt that the Canadian Constitution is both a forward, and backward, looking document capable of combining elements of both tradition (past written principles) and change (the future aspirations of Canadians).

To be sure, there are many reasons to favour a theory of interpretation that actively endorses such flexibility. Not least is the view that, as democratically minded rational individuals, Canadians are capable of re-inventing themselves in new ways previously inconceivable to past generations. It therefore makes little sense to adopt an interpretive approach that binds “the people now by what the people then agreed were appropriate constraints.” This is, however, exactly what a pre-contact time requirement does. Instead, constitutions, and their provisions, should be understood (and are usually so conceived) to contain only a limited number of blunt, general, statements about socially desirable, enforceable, group pre-commitments. They are, in other words, the guidelines rather than the meat and potatoes.

As a provision of the Canadian Constitution then, section 35 is similarly viewed as encapsulating a ‘guideline’ commitment towards the protection of existing rights of Aboriginal peoples. Contained within this guideline are concrete expressions of that broader right (it, of course, falls to the courts to determine if the ‘concrete’ fits the ‘abstract’). In this way, s.35 is no different from all other constitutional provisions. While the particular provisions of the Canadian Constitution are unchanging, establishing fixed and written moral limits on government action, the substance contained within the boundaries of provisions like s. 35 is necessarily open to change. Justice McLachlin alluded to this in Van der Peet when she stated that it was “necessary to distinguish…between (a) right and the exercise of that right.” The two are not the same, and confusing the two clearly threatens to foreclose debate on such substantive issues before it begins.

Yet, if it is admitted that the benefits of abstract characterization are flexibility and adaptability, it makes little sense to continue to cast Aboriginal rights, unfairly it seems, in terms of specific modern practices and concrete expressions. This is especially so when one considers that the current test, as established in Van der Peet, requires the claimant to demonstrate that a modern practice has an ancient pre-contact mirror. Thus, in Van der Peet, for example, the right is not characterized as a traditional right to use the waters and lands of Canada for traditional levels of sustenance, but rather as “a right to exchange fish for money”. Despite the fact that Mrs. Van der Peet did exchange fish for money in 1987, the Court (if it had chosen to do so) could have more accurately defined the ancient practice, not by reference to the 1987 practice, but rather in terms of the historical practices traditionally undertaken by the Sto:lo.

Perhaps, as a final note on the matter, it might be suggested that one of the reasons for this foreclosure of debate is that the test established in Van der Peet requires the use of deductive, rather than inductive reasoning. Instead of amassing facts gleaned from past and current practices to point to broader ancient Aboriginal rights, the Court in Van der Peet fatefully chose to disregard this usual common law method in favour of its reciprocal. Thus, instead of undertaking an empirical analysis of traditional Aboriginal practices, the Chief Justice, in Van der Peet, chose to firstly define the right claimed and then proceed to delve into history to find its ancient pre-contact mirror. Given the fact that cultural practices change over time, it can hardly be considered reasonable to assert that what Mrs. Van der Peet, for example, in having sold ten fish, was suggesting was that her people, nearly half a century before had exchanged fish for money as an Aboriginal right.

What the above demonstrates, therefore, is the need to do away with a pre-contact test that encourages, rather than discourages, judges to see Aboriginal rights as frozen at a particular time in history. Given that we do not require or encourage this view of other constitutionally protected rights, Aboriginal rights - as interpreted through the Van der Peet test - appear at odds with an overall constitutional interpretive model which favours a Living Rights approach. It is clear, however, that the Living Rights approach and pre-contact test cannot co-exist in any coherent fashion. Indeed, one could rightfully characterize them as the oil and water of Aboriginal rights. If we, as a nation, are committed to the idea that the Canadian Constitution is both a forward, and backward, looking document capable of combining elements of both tradition and change, then we must, it seems, once and for all, choose between an embattled (and now isolated) and highly particularized time-rule, and a time honoured Common law tradition of viewing Constitutional rights as organic and capable of growth and change.

Section 4
Where do we go from Here: Discussion and Conclusion
Of all the tyrannies a tyranny sincerely exercised for the good of its victims may be the most oppressive. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience.

Section 4A
In a recent essay published in Prospect Magazine regarding Prime Minister John Howard’s reform policy towards Aboriginal peoples in Australia, author Nicolas Rothwell wrote:

There are two broad schools of thought. One places the weight on the devastating effects of invasion and colonial disruption, and concludes that Aboriginal political powers need to be strengthened; the other holds that passive welfare, or ‘sit-down’ money,’ has rotted away the heart of the remote indigenous domain.

While undoubtedly this paper adopts the former, rather than latter school of thought, it does so with some strong authoritative backing. The Royal Commission on Aboriginal Peoples (RCAP) for example, notes that:

The enactment of the Constitution Act (s. 35) 1982 has had far reaching significance. It confirms the status of Aboriginal peoples as equal partners in the complex federal arrangements that constitute Canada, provides the basis for recognizing Aboriginal governments as constituting one of three orders of governments (which are) sovereign within their spheres…and holds their powers by virtue of their inherent status (rather than by delegation.)

Similarly too, it should be acknowledged that the Canadian government has expressly recognized the inherent right of Aboriginal peoples to self-government. It may therefore, given all of the evidence mustered thus-far in this paper, be confidently asserted that the weight of authorities, logically interpreted, rests firmly in the former approach, which favours a strengthening (rather than a weakening) of Aboriginal political powers.

Just as there are two broad schools of thought then, it is submitted that in relation to the relevant time test there are two possible answers to the question: ‘Where do we go from here?’ One possible answer is to continue along the current path established in Van der Peet. Métis, Inuit, and Indian peoples will continue, under this approach, to be treated (under s. 35) in a disparate manner, each interpreted as a substantively unique and unconnected grouping of Aboriginal peoples soldered to their particular ancient histories. In the all-or-nothing arena of the courtroom, bound by a case by case approach, establishing rights under this regime will continue to be a battle of, and for, a history that has long-since past. This approach by the S.C.C. is then, in a broader sense, a reflection of the second school of thought outlined above, whereby the message conveyed is one of stark choices: You may either ‘act’ Aboriginal, in which case your Aboriginal rights will remain frozen, OR you may ‘act’ as the white settler does, in which case your rights will become modern and flexible ones.

If however, we answer the same question as Chief Justice Dickson did in R. v. Sparrow we surely arrive at a wholly different determination on how to proceed forward. For his part, Chief Justice Dickson saw section 35 as the “culmination of a long and difficult struggle for the constitutional recognition of Aboriginal rights.” Surely this culmination, as contemplated by both the (then) Chief Justice and Aboriginal peoples of Canada, did not amount to a mere interest in reviving long-vanished modes of life. More likely this culmination and section 35’s inclusion within the Canadian Constitution represented a chance to protect both the traditions and aspirations of past, present and future Aboriginal peoples within the Canadian context. If this is the alternative approach, and is the one our courts choose to proceed with, it is likely that our judicial system will begin to play a key role in strengthening Aboriginal political powers, and end the disparate treatment (and rights protection and development) of different Aboriginal ethno-groups. This alternative approach will also signal a clear and practical challenge to social and economic policies that have hindered Aboriginal peoples in the development of their cultures, economies, and traditions over the past two hundred years of contact.

Such practical considerations too, cannot be overstated as important factors for considering an alternative approach to the status quo. Almost without exception, Aboriginal communities in Canada are islands of overt poverty in a sea of immense wealth. As Professor Morse suggests, “the poverty and despair that grips…First Nations in Canada…is blatant, tragic, and depressingly well documented.” These communities are also often sparsely populated, with over half of Canada’s total reserve population inhabiting communities of less than one thousand persons. In 1990 the percentage of registered Aboriginals on social assistance was 42%; that is over two hundred times the overall Canadian average. In some reserve communities, employment is as low as a mere 10% - that is – 90% do not, or cannot find work. In this present-day context then, the words of Justice Binnie carry exceptional practical and normative force: “Barter (and its modern equivalent, sale)…reflects a more efficient use of human resources…it seems to me a Mi’kmaq or Maliseet should be able to sell firewood to his or her Aboriginal neighbour or barter it for a side of venison or roofing a house.” This simply makes good, practical, sense - and good law often accords with it. A continuation of the status quo however, whereby an Aboriginal woman cannot sell $50 worth of salmon to a friend because her ancient ancestors didn’t do so is plainly at odds with this common sense view - and by that token, should not be considered good law.

The time has come then, to admit that the pre-contact test has become a discredited and largely defunct archetype for the determination of Aboriginal (that is, Indian and Inuit) rights. Delgamuukw and Powley have demonstrated not only the need, but also the ability of our courts to refashion the time requirement (as laid out in Van der Peet) for particular purposes. However, more must be undertaken than a simple re-tooling of an old test if we are to achieve the changes contemplated. As many of the academic writings explored in this paper assert, the time has come to on-board a new perspective that views Aboriginal rights, grounded in the histories of Aboriginal peoples, as indicating greater possibilities for change and re-invention within their societies. This change in approach, as has been suggested, will encourage mainstream Canadians (and Aboriginal peoples themselves) to view Canada’s Aboriginal peoples as something more than the mere descendants of pre-contact men and women, chained to an inescapable and distant past. Rather, this change in approach will reveal Canada’s First Nations’ peoples for what they truly are: Active members of vibrant living communities in which its members are endowed with the desire and capacity to define and redefine themselves according to both their future aspirations and past traditions.
Clearly, these changes will involve giving wider compass to Aboriginal peoples, and will no doubt, require greater compromise in regard to policy than is now evinced in recent case law. It may be a legitimate question then, to ask whether our courts and judges are up to this weighty task. Many justices now openly call for political solutions to many of the Aboriginal issues raised in Canadian courts. In the long term this may be a sensible solution. Some judges have expressed concern that they may be in the business of developing policy, not law, when it comes to s. 35. In any event, it must be admitted that negotiation and settlement are often preferable roots to finding lasting solutions to questions that tread the line between politics and law. Given the likelihood that such matters will continue to find their way into the judicial system however, it may even be desirable to appoint a Royal Commission to determine the precise scope and effect of section 35. This would give judges clear guidelines on how to interpret (the admittedly ambiguous) section 35, and would allow politicians to see, comprehend, and do something to better the lot of Canada’s Aboriginal peoples. This would also help Canada’s Supreme Court avoid the current, and somewhat embarrassing, appearance of being a policy, rather than legal court when dealing with Aboriginal rights issues.

Works Cited


Constitution Act, 1982

Game and Fish Act, R.S.O. 1990

Canadian Cases

Delgamuukw v. British Columbia [1997] S.C.J. No. 108

Mitchell v. Canada (MNR) [2001] S.C.R. 911

Reference re. Secession of Quebec [1998] S.C.J. No. 61

R. v. Belhumeur [2007] S.J. No.549

R. v. Blais [2003] S.C.J. No. 44

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295

R. v. Coté [1996] 4 C.N.L.R. 26

R v. Gladstone [1996] 4 C.N.L.R. 65

R. v. Kelley [2007] A.J. No. 67

R. v. LaViolette [2005] S.J. No. 454

R. v. Marshall [1999] S.C.R. 456

R. v. Morris [2006] S.C.J. No. 59

R. v. Sappier, R. v. Grey [2006] S.C.C. 54

R v. Sparrow [1990] S.C.J. No. 49

R. v. Powley [2003] S.C.J. No. 43

R. v. Van der Peet [1991] 3 C.N.L.R. 155

R. v. Van der Peet (1993) 58 B.C.L.R. (2d) 392, 83 C.C.C. (3d) 289

R. v. Van der Peet [1996] S.C.J. No. 77

US Cases
Worcester v. Georgia 31 U.S. (6 Pet.) 515 (1832)

English Cases
Campbell v. Hall (1774)

Academic Articles

Barsh, Russel and James Youngblood Henderson. “The Supreme Court’s Van der Peet Trilogy: Naïve Imperialism and Ropes of Sand” (1997) McGill Law Journal 42 McGill L.J. 993

Bell, Catherine and Clayton Leonard. “A New Era in Métis Constitutional Rights: The Importance of Powley and Blais.” (2004) 41 Alta L. Rev. 1049 – 1083

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Peeling, Albert and Paul Chartrand, “Sovereignty, Liberty, and the Legal Order of the “Freemen”: Towards a Constitutional Theory of Métis self-Government” (2004) 67 Sask. L. Rev. 339 – 357

Slattery, Brian. “The Generative Structure of Rights” (2007) [unpublished]

Slattery, Brian. “The Organic Constitution: Aboriginal Peoples and the Evolution of Canada” (1996) 34 Osgoode Hall L.J. 101-112
Jean Leclair, “Constitutionalism and Political Morality: A Tribute to John D. Whyte” (2006) 31 Queen’s L.J. 521 -535

Thomas Marshall, “See no Evil, Hear no Evil: An Exploration of Radicalization in Canada’s Aboriginal Communities” (2007) [Unpublished]

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[Unlisted Author]. “The Harsh numbers are Unchanged” Canadian Medical Association Journal (CMAJ) (Oct. 23, 2007)

Materials Consulted

Academic Articles

McNeil, Kent. “Aboriginal Title and Aboriginal Rights: What’s the Connection?” (1997) 36 Alta. L. Rev. 117


Bennett, Paul, et al. Canada: A North American Nation (Toronto: McGraw Hill Ryerson Limited, 1989)

Cairns, Alan. Citizens Plus: Aboriginal Peoples and the Canadian State Toronto: UBC Press, 2000)

Dickason, Olive Patricia. Canada’s First Nations: A History of Founding Peoples from Earliest Times 3rd ed. (Toronto: Oxford University Press, 2002)

Drake, Samuel. Biography and History of the Indians of the North: from its first discovery (Boston: Benjamin Mussey & Co., 1853)

Magnet, Joseph. Constitutional Law of Canada: Cases, Notes and Materials Vol. 1: Federalism, Aboriginal Peoples Procedure and Remedies (Edmonton: Juriliber Limited Publishing, 1999)

Non-Academic Articles

Driver, Deana. “Expansive Fishing Right Recognized for Métis in Saskatchewan” The Lawyers Weekly (November 9, 2007)