The Right to Self-Government and Protecting the Vulnerable: Balancing Rights under Canadian Constitutional Law

Chapter 5

The Right to Self-Government and Protecting the Vulnerable: Balancing Rights under Canadian Constitutional Law

Introduction

The successful decolonization of Aboriginal child welfare in Canada can only be achieved by recognizing and respecting the inherent right of Aboriginal peoples to self-government. Despite the risks, self-government over child welfare must therefore remain the ultimate goal. The question is how that ultimate goal can be achieved whilst minimizing the risks to individual Aboriginal children. A balance needs to be found between affording proper respect to the right of Aboriginal peoples to self-government over child welfare on the one hand, whilst ensuring adequate safeguards for the rights of Aboriginal children on the other. In examining whether the Canadian government has got that balance right, the issue of child welfare cannot be looked at in isolation. It must be considered within the context of the wider right of Aboriginal peoples to self-government over all their internal affairs and the impact of the various limitations and restrictions that the Canadian government has sought to impose upon that right. Inevitably, the extent to which Aboriginal peoples are successful in establishing the broader right to self-government, and the manner in which that right is implemented, particularly the degree of autonomy and independence secured by Aboriginal governments, will determine the degree of control enjoyed by Aboriginal communities over child welfare and other related family law matters.

Unfortunately, the conclusions reached are not encouraging. As regards the respect afforded to the right of Aboriginal peoples to self-government, it is highly questionable whether the heavily qualified right to self-government advanced by the Canadian government and the Canadian courts can meet the aspirations of indigenous peoples for self-determination and decolonization and, therefore, whether it really provides a promising way forward for Aboriginal peoples within key areas of jurisdiction such as child welfare. The approach adopted to the equally vital question of ensuring adequate protection for the rights and interests of individual Aboriginal children is similarly disappointing. Whilst important progress has been made on Aboriginal self-government, the limitations and restrictions placed on the inherent right seriously undermine its potential to deliver effective decolonization. In particular, the Canadian government’s imposed solutions for ensuring the protection of individual Aboriginal rights are not only unresponsive to the Aboriginal worldview but perpetuate a colonial mindset in which the fundamental norms and values of non-native society are further entrenched.

Sovereignty is regarded by many Aboriginal people as a gift from the Creator.1 Consequently, they believe that sovereignty cannot be shared, taken away, nor its basic terms negotiated.2 From an Aboriginal perspective, neither the British Crown’s unilateral assertion of sovereignty over Canadian territory nor subsequent attempts at extinguishment or infringement are capable of extinguishing the inherent right of Aboriginal peoples to sovereign autonomous government. The right persists despite the repeated attempts of external powers to extinguish it. As an inherent right flowing from sources within a people or nation, it has no dependence on such external legal or political sources.3 Therefore, whilst many indigenous groups have embarked upon a long and difficult struggle to gain recognition of their right to self-determination, such recognition is in principle unnecessary. As it was put by Herb George of the Gitksan-Wet’suwet’en Nation in his evidence to the Royal Commission on Aboriginal Peoples:

What is required here is not an inquiry of the current law or international law to determine the source of our rights. What is required here is the recognition that our rights exist in spite of what the common law says, and in spite of what have been the policies of this government to the present day. If this issue is to be dealt with in a fair way, then what is required is a strong recommendation from this Commission to government that the source of our right, the source of our lives and the source of our government is from us. That the source of our lives comes from Gitskan-Wet’suwet’en law.

The twin principles of self-determination and inherent Aboriginal sovereignty underpin contemporary arguments in favour of the inherent right to self-government. According to the view that prevailed until the 1980s, Aboriginal rights, including the right to self-government, were entirely contingent upon the goodwill of the Canadian government. The only rights that Aboriginal peoples could therefore claim were those that the federal and provincial governments were willing to grant them.4 As Asch and Macklem explain, this had important implications for Aboriginal sovereignty and the fight of Aboriginal peoples for self-government:

[U]nder a contingent theory of Aboriginal right, self-government is a label for a bundle of rights that attach to Native people as a result of legislative or executive action or constitutional amendment, and is not dependent upon a prior acceptance of First Nations sovereignty. In fact a contingent theory of Aboriginal right implicitly denies any assertion of First Nations sovereignty by viewing the existence or non-existence of Aboriginal rights, including rights of self-government, as dependent upon the exercise of Canadian sovereign authority.5

The inherent right theory proceeds from a very different premise. As Asch and Macklem explain, this approach to self-government is derived from the prior sovereignty of Aboriginal people:

According to an inherent rights approach, First Nations sovereignty is a term used to describe the totality of powers and responsibilities necessary or integral to the maintenance and reproduction of Aboriginal identity and social organization. Under an inherent rights theory, First Nations sovereignty and Aboriginal forms of government, as the means by which Aboriginal identity and social organisation are reproduced, pre-existed the settlement of Canada and continue to exist notwithstanding the interposition of the Canadian state.6

The inherent right to self-government, of which self-government over child welfare would be a central component, therefore arises from within the inherent sovereignty of Aboriginal communities. It does not rely upon grant or recognition from the governments of Canada and, as a right which is neither created by, nor devolved from, the Canadian government, the Canadian government should not, in theory, be able to dictate its meaning and scope.

Surprisingly, the Canadian legal and political establishment would seem to accept that the Aboriginal peoples of Canada have an ‘inherent right to self-government’ which, since 1982, has been protected under s 35 of the Canadian Constitution.7 This position was unequivocally endorsed by the Royal Commission on Aboriginal Peoples in 19968 and, most significantly, has been the official policy of the Canadian federal government since 1995.9 The Federal Policy Guide for Aboriginal Self-Government thus provides:

The Government of Canada recognises the inherent right of self-government as an existing Aboriginal right under section 35 of the Constitution Act, 1982. It recognises as well, that the inherent right may find expression in treaties, and in the context of the Crown’s relationship with treaty First Nations. Recognition of the inherent right is based on the view that the Aboriginal peoples of Canada have the right to govern themselves in relation to matters that are internal to their communities, integral to their unique cultures, identities, traditions, languages, and institutions, and with respect to their special relationship to their land and resources.10

The federal government’s apparent acceptance that the right to self-government is an inherent right protected under the Constitution and that, pursuant to that right, Aboriginal peoples have the right to govern themselves on all matters such as child welfare which are internal to their communities, seems to promise much. However, as the substance of this promise has been subjected to the intensive scrutiny of various legal and political processes, it has become clear that the reality of what is envisaged by the Canadian authorities falls a long way short of what Aboriginal peoples demand by way of self-determination and sovereignty.

The inherent right to self-government has the potential to be extremely expansive in scope. The inherent right approach, particularly when founded on the principles of self-determination and Aboriginal sovereignty, would support wide autonomy for Aboriginal peoples with extensive governmental powers over internal, and possibly also external, matters. It also renders uncertain the sovereign authority of the Canadian government to circumscribe those powers in accordance with its own agenda. At its most extreme, arguments supporting the inherent right could be used to justify Aboriginal peoples unilaterally asserting their independence from Canada.11 The Canadian authorities have therefore adopted an alternative approach to self-government which seeks to distance the inherent right theory from the problematic concepts of self-determination and sovereignty. This approach, which reflects the common law position on Aboriginal rights, is closely tied to the historical process of settlement and the political and legal response of the colonial authorities to the fact that Aboriginal peoples were in prior occupation of the territory. The argument here focuses on the fact that Aboriginal peoples were living as organized socio-political entities exercising sovereign powers over their own people prior to the arrival of the Europeans. To this extent, the rights are therefore inherent; finding their source from within pre-contact Aboriginal communities themselves. However, whilst it is recognized that the facts of prior occupancy and prior sovereignty justify continuing recognition, and indeed constitutional protection, of distinct Aboriginal rights, those rights are understood to exist subject to the Crown’s unilateral assertion of sovereignty over Aboriginal peoples and their territory. Aboriginal rights, including the inherent right to self-government over child welfare, must thus be exercised within the legal and political framework of Canada and are ultimately subject to the overriding authority of the Crown. The inherent right is still a subordinate right.

At the heart of the debate over Aboriginal self-government is thus a fundamental impasse between the Canadian authorities and Aboriginal communities as to the scope and meaning of the ‘inherent right’ policy. Clearly, the Canadian authorities have been willing to engage with the language of the inherent right. However, fearful of the potentially explosive political, legal and economic fallout, they have not been prepared to countenance any claims to Aboriginal sovereignty that may pose a challenge to the ultimate sovereignty of the Canadian government. For their part, Aboriginal leaders have been at pains to stress that they wish to remain part of the constitutional framework of Canada. However, pursuant to their right to self-determination, they wish to negotiate their way into Canadian federalism on very different terms and with a very different status from that currently enjoyed.12 What Aboriginal peoples are demanding is recognition of their inherent sovereignty, that they have been the victims of colonization and that the unilateral assertion of British sovereignty over their people and their lands is without legal or moral foundation. For them, the inherent right to self-government means decolonization.

In 1982, the context of the debate over Aboriginal peoples’ right to self-government changed dramatically. For the first time, Aboriginal rights were afforded constitutional protection under s 35 of the Constitution Act 1982.13 Constitutional entrenchment of Aboriginal rights was a fundamentally important step. It meant that the distinctive rights of Canada’s Aboriginal peoples were no longer wholly dependent on the will of the Canadian government, enjoying, for the first time, substantive protection from unilateral extinguishment and any further encroachment by the Canadian authorities. As regards self-government, the key question thus became whether the inherent right to self-government was ‘an existing Aboriginal or treaty right’ attracting constitutional protection under s 35. In 1995, the federal government finally accepted that this was indeed the correct constitutional position. However, as a constitutional right protected under s 35 of the Constitution, it ultimately falls to the Supreme Court and not the federal government to determine the substantive scope and content of the right, as well as the legitimacy of any limitations the federal government may seek to place upon it. Achieving judicial recognition of the inherent right to self-government under s 35, which would automatically include within its scope self-government over core internal matters such as child welfare, has therefore been an issue of vital importance for Aboriginal peoples.

The Right to Self-Government and the Canadian Supreme Court

Securing the Supreme Court’s approval of the constitutional argument that the inherent right to self-government falls within the scope of s 35 of the Constitution would constitute a major breakthrough for Aboriginal people. However, the Supreme Court has a variable record on Aboriginal issues and has proved particularly disappointing on the question of self-government. In setting down the basic framework for establishing an Aboriginal right under s 35, the Supreme Court’s decision in R v Sparrow (1990),14 its first as to the scope and meaning of Aboriginal rights under s 35, seemed to hold out significant promise that the inherent right to self-government could be found to fall within its scope. Dickson CJ and La Forest J, giving judgment, at least appeared to begin from an inherent rights approach, holding that Aboriginal rights were not contingent on executive or legislative action but found their source from within the laws, customs and practices of Aboriginal peoples themselves.15 In determining whether or not an Aboriginal right was still ‘existing’ for the purposes of attracting constitutional protection under s 35, the Court held that the term ‘existing’ meant simply those rights which were in existence, i.e. had not been extinguished, when the Constitution Act 1982 came into effect. This meant any Aboriginal rights that had previously been extinguished were not revived by the new Constitutional provisions.16 However, the court went on to hold that regulation of the right, even if extensive, did not constitute extinguishment. In order for the right to be effectively extinguished there needed to be ‘a clear and plain intention’ to extinguish by the Sovereign.17 Detailed regulation did not, in their view, demonstrate such a clear and plain intent. Furthermore, the Supreme Court held that existing Aboriginal rights enjoying constitutional protection under s 35 were not to be restrictively defined in accordance with the regulations then in force. To do so would, in the Supreme Court’s now infamous phrase, ‘incorporate into the Constitution a crazy patchwork of regulations’.18 Moreover, the Supreme Court emphasized that existing Aboriginal rights must be interpreted in a contemporary form to allow their evolution over time.19 In other words, Aboriginal rights were not to be ‘frozen’ as they were at a particular point in history; they were part of living cultures in which evolution, development and change were to be recognized and respected.

All of this augured well for the argument that the inherent right to self-government was an existing Aboriginal right under s 35 of the Constitution.20 The factual basis for establishing such a claim – Aboriginal peoples’ prior occupation of the land in organized ‘self-governing’ societies – appeared relatively straightforward. The Supreme Court found no difficulty, for example, in concluding that the Musqueam had ‘lived in the area as an organized society long before the coming of European settlers’.21 Applying the principle from Sparrow, although any Aboriginal powers of self-government which had been successfully extinguished by the Canadian government prior to 1982 could not be revived, even extensive regulation of an Aboriginal community’s self-governing powers would not amount to extinguishment if lacking the requisite clear and plain intent.22 Furthermore, once established, the right to self-government could be given expression in contemporary form, allowing Aboriginal communities to respond and adapt as they deemed appropriate to the political, economic, social and cultural needs of Aboriginal peoples living in modern-day Canada: the right to self-government would not, in other words, be tethered to seventeenth-century conceptions of governance. Unfortunately, subsequent cases seeking to interpret and apply the Supreme Court’s approach to establishing an Aboriginal right under s 35 have not delivered on the promise of Sparrow.

The majority decision of the Supreme Court in R v Van der Peet has played a crucial role in narrowing the range of Aboriginal rights which are likely to be successfully established under s 35.23 Van der Peet focused on how Aboriginal rights were to be identified and defined for the purposes of determining whether they were ‘existing’ for the purposes of s 35 – a question which did not arise for direct consideration in Sparrow. Lamer CJ, giving judgment for the majority, began by setting out the context within which the protection afforded to Aboriginal rights under s 35 must be understood. A number of positive factors emerged from this discussion. Lamer CJ emphasized that a purposive approach must be taken to the interpretation of Aboriginal rights, with the Crown’s fiduciary obligation to Aboriginal peoples dictating that a ‘generous and liberal interpretation is adopted’ and that any doubts or ambiguities as to whether a claimed right falls within the scope of s 35 being resolved in favour of Aboriginal peoples.24 However, from the outset, Lamer CJ also made it clear that because Aboriginal rights were held by Aboriginal peoples precisely because they were Aboriginal, they must in some way be rooted in what it means to be Aboriginal.25 This demanded, in his view, a necessary degree of specificity in defining the rights in question.26 When combined with the necessity to ‘capture’ what is essentially ‘Aboriginal’ in the right, this resulted in a very restrictive test for the purpose of identifying and establishing Aboriginal rights under s 35.

According to Lamer CJ, the core purpose of s 35 is to protect the distinctive interests of Aboriginal people arising from the fact that they were in occupation of the land living in organized societies with their own practices, customs and traditions prior to the arrival of the Europeans. In his view, the test for establishing Aboriginal rights must therefore be directed at identifying what were the crucial or central elements of those pre-contact societies.27 Picking up on the language used by the Supreme Court in Sparrow, he thus held 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’ (emphasis added).28 Before this can be determined, however, the applicant’s claim must first be characterized correctly. Although Lamer CJ emphasized that the activities in question must be ‘considered at a general rather than a specific level’ and the court must be sensitive to the fact that the activity may be the contemporary form of a pre-contact practice, custom or tradition, in characterizing the Aboriginal right in question Lamer CJ held that a degree of precision would be required. The courts are thus directed to consider such factors as ‘the nature of the action which the applicant is claiming was done pursuant to an Aboriginal right, the nature of the governmental regulation, statute or action being impugned, and the practice, custom or tradition being relied upon to establish the right’.29 The Aboriginal perspective on characterizing the custom, tradition or practice in question must also be considered,30 although the Aboriginal right must still remain cognizable to the non-native legal system.31

Once the right has been characterized correctly, the court can move on to determine whether the practice, custom or tradition was ‘integral to the distinctive culture’ of the Aboriginal group. The fact that the claimant can show that the custom, practice or tradition was in existence at the relevant time is not sufficient; it will be for the claimant to prove that it was a ‘central and significant part of the society’s distinctive culture’.32 Lamer CJ expressed the test in several different ways: that the practice, custom or tradition must have been a ‘distinguishing’ or ‘defining feature’ of the Aboriginal society or ‘one of the things that truly made the society what it was’.33 It is clear that a custom, practice or tradition that was only ‘incidental or occasional’ to that society would not be sufficient to meet this criteria.34 Moreover, although the custom, tradition or practice need not have been distinct in the sense of unique to the culture in question,35 as an Aboriginal right, it must have been something which set the society apart from the European settlers, thus apparently excluding aspects of Aboriginal culture which are common across societies.36 Lamer CJ also demands a high degree of cultural specificity in proving the factual basis for every claim. Thus it is clear that the existence of Aboriginal rights cannot be determined on a general basis. Every claimed Aboriginal right must be specifically rooted in the cultural practices of the particular Aboriginal community claiming the right. The specific history of each Aboriginal community will therefore need to be examined before it can be determined whether a particular custom, practice or tradition was ‘integral to their distinctive culture’ – a difficult, time-consuming and hugely expensive process. In practical terms, this means that the ‘fact that one group of Aboriginal people has an Aboriginal right to do a particular thing will not be, without something more, sufficient to demonstrate that another Aboriginal community has the same Aboriginal right’.37

Timing is also crucially important in satisfying Lamer CJ’s ‘integral to a distinctive culture’ test. Although Lamer CJ emphasized that the practice, custom or tradition, having evolved over time, may be expressed in a contemporary form, the claimant must be able to show that the practice, custom or tradition from which the contemporary right has evolved was integral to the Aboriginal community prior to contact with the European settlers.38 Continuity between the contemporary practice and its existence pre-contact must thus be established by the claimant. Any practice, tradition or custom which has arisen post-contact or as a result of interaction with non-Aboriginal cultures, will fall outside the scope of s 35.39 Lamer CJ argues that although this approach roots Aboriginal rights in historical practices, the doctrine of continuity prevents a ‘frozen rights’ approach.40

The majority decision of the Supreme Court in Van der Peet laid the foundations for a series of disappointing decisions on Aboriginal rights. The ‘integral to a distinctive culture’ test has proved extremely restrictive for claimants seeking to establish an Aboriginal right under s 35, including the right to self-government.41 The first problem has been with Lamer CJ’s stringent requirement to prove that the relevant customs, practices and traditions existed at the point of first contact. L’Heureux-Dube J argued in her dissent in Van der Peet that to restrict s 35 to customs, practices and traditions that existed at the point of contact was contrary to the actual wording of s 35 which makes no mention of any arbitrary ‘cut-off’ point.42 Indeed, in her view, by specifically including the Métis peoples within the scope of s 35, the legislature must have specifically contemplated the inclusion of customs, practices and traditions arising post-contact and as a direct result of interaction between Aboriginal and non-Aboriginal cultures.43 Moreover, although Lamer CJ argued that his approach avoided the problem of ‘frozen rights’, it is clearly a backward-looking process which privileges Aboriginal cultures as they existed at a somewhat arbitrary point in history.44 As it was put by L’Heureux-Dube J in her dissent, ‘[d]efining existing Aboriginal rights by referring to pre-contact or pre-sovereignty practices, traditions and customs implies that Aboriginal culture was also crystallized in some sort of “Aboriginal time” prior to the arrival of Europeans’.45 It forces the Aboriginal claimant to ‘embark upon a search for a pristine Aboriginal society’, freezing Aboriginal communities in a ‘museum-like’ state.46 Thus, although those traditions, practices and customs existing at the relevant point in history are permitted to develop and evolve, post-contact traditions, customs and practices resulting from normal evolutionary processes, regardless of how significant they may be for the community in question, are denied constitutional recognition.

That said, the much maligned requirement that the custom, tradition or practice supporting the claimed Aboriginal right must have been integral to the distinctive culture of Aboriginal peoples at the point of first contact, is not necessarily fatal to a claim for self-government, including a claim to self-government over child welfare. The Supreme Court in Van der Peet again acknowledged that at the point of first contact Aboriginal communities were living in distinct organized societies with their own legal and political structures. It is likely that those structures would have included some mechanism for protecting the community’s children. Consequently, whilst those legal and political structures may well have changed dramatically following contact with the European colonial powers, the essential factual basis for a claim to self-government can be traced back to a pre-contact point in history.

Lamer CJ’s restrictive approach to the question of how Aboriginal rights are to be characterized and defined has proved much more problematic for a claim to self-government. In order to establish an Aboriginal right, the majority approach in Van der Peet requires the court to focus on very specific practices, traditions or customs of the Aboriginal community in question. This approach was again subjected to strong criticism by L’Heureux-Dube J in her dissent. She argued that to separate discrete parts of Aboriginal culture from the general culture of which they form part is a highly artificial process.47 She therefore advocated a more generic approach that defines Aboriginal rights at a fairly high level of generality and abstraction, protecting ‘not a catalogue of individualized practices, traditions or customs’ but ‘the “distinctive culture” of which Aboriginal activities are manifestations’.48 McLachlin J, in her dissenting judgment, echoed this concern, arguing that Lamer CJ had focused too narrowly on the specific way in which a right is exercised at a particular point in time, rather than the broader underlying right, the exercise of which may vary considerably over time and place.49

L’Heureux-Dube also expressed strong concern about the way in which Lamer CJ’s characterization of Aboriginal rights focused too narrowly on aspects of Aboriginal culture which could be said to be ‘distinctly Aboriginal’. This has an extremely restrictive effect on the protection afforded to Aboriginal cultures, with Aboriginal cultures being literally defined as ‘that which is left over after features of non-Aboriginal cultures have been taken away’.50 To put it another way, only that which is not ‘non-Aboriginal’ can be ‘Aboriginal’. This clearly poses difficulties for aspects of Aboriginal culture, such as governance structures and mechanisms for protecting vulnerable children, which are shared in general terms with non-Aboriginal societies. It is difficult to conceptualize the right to self-government either generally or more specifically with respect to child welfare as something distinctly Aboriginal, although the way in which self-government or certain aspects of it are implemented within Aboriginal communities may well be (such as the use of the extended family within many Aboriginal communities to protect children). L’Heureux-Dube J contends that a more holistic approach would afford much greater integrity and respect to Aboriginal cultures:

The practices, traditions and customs protected under s 35(1) should be those that are sufficiently significant and fundamental to the culture and social organization of a particular group of Aboriginal people … Put another way, the Aboriginal practices, traditions and customs which form the core of the lives of native people and which provide them with a way and means of living as an organized society will fall within the scope of the constitutional protection under s. 35(1).

The more recent decision of the Supreme Court in R v Sappier; R v Gray (2006),51 has softened some of the harsher effects of Lamer CJ’s judgement in Van der Peet, emphasizing that ‘distinctive’ does not mean unique,52 or that it is the single most important defining character of the society,53 or that the culture would be ‘fundamentally altered without it’.54 Moreover, the courts’ focus, according to Bastarache J, should be on the distinctive features of the ‘pre-contact way of life of a particular Aboriginal community’ rather than on highly specific discrete activities.55 Nevertheless, despite the Supreme Court’s move to a less restrictive interpretation of Van der Peet, the integral to a distinctive culture test remains firmly entrenched in Canadian law and has been applied in subsequent cases relating to self-government with predictably disappointing results. The question of whether the inherent right to self-government would be excluded from the scope of s 35 by Lamer CJ’s restrictive approach in Van der Peet was answered in the case of R v Pamajewon.56 Whilst both Sparrow and Van der Peet were concerned with fishing rights, R v Pamajewon was directly concerned with the right to self-government. The case concerned an attempt by the Shawanaga First Nation and the Eagle Lake First Nation to pass laws purporting to establish a range of gambling activities on the reserve. The appellants were charged with gambling related offences contrary to the Criminal Code. The Shawanga First Nation challenged the convictions asserting an inherent right to self-government. The Eagle Lake First Nation conceptualized the right more narrowly, arguing that they had an inherent right to be self-regulating in their economic activities. The Supreme Court gave relatively short shrift to the claims. Lamer CJ, giving judgment for the majority, held that the issue was to be determined in accordance with the test laid down in Van der Peet, the first stage of which was to accurately characterize the right in question. The court could then go on to determine whether that activity was a defining feature of the culture of the Shawanga and Eagle Lakes peoples.57 The claim to self-government fell at the first hurdle. In characterizing the claim, Lamer CJ held that the Aboriginal right in question was not a right to self-government but the right to participate in, and to regulate, high stakes gambling activities on the reservation.58 To characterize the claim as a right to self-government was, in Lamer CJ’s view, to conceptualize the right at an excessive level of generality.59 In order to conduct the necessary enquiry into whether the claimed Aboriginal right was integral to the specific history and culture of the group in question, Lamer CJ held that the claim had to be broken down into the specific aspect of self-government being claimed – here, the right to participate in and regulate on-reserve gambling. Generic claims to self-government would not be entertained.60 Once the right had been characterized in this way, the Supreme Court found it relatively easy to dispose of the matter. Although they accepted the evidence given at trial that, at the point of contact, the Ojibwa participated in informal gaming activities, the Court did not accept that the regulation of large-scale commercial gambling activities, a ‘twentieth century phenomena’, was ever of central significance to the culture of the Ojibwa people.

The Supreme Court’s decision in Pamajewon precludes the courts from even entertaining a claim that the Aboriginal peoples of Canada have an inherent right to self-government protected under s 35 of the Constitution.61 Such claims will simply be dismissed as overly broad and general. It remains possible that individual components of a self-governing regime, such as the right to self-government over child welfare, will be deemed sufficiently particularized to be justiciable under s 35.62 However, for Aboriginal communities hoping that judicial recognition of the inherent right to self-government would assist in advancing their position at the negotiation table, the Supreme Court seems, at least for now, to have firmly closed that door.63

Self-government over child welfare

As noted above, the Supreme Court’s disappointing jurisprudence on Aboriginal self-government does not preclude a successful claim being brought on the more specific question of whether self-government over child welfare constitutes an Aboriginal right under s 35. However, the limited case law on this more specific question has in fact been equally disappointing. In 2000, the parents of an Innu child attempted to challenge the constitutionality of the Youth Protection Act P. 34.1 on the grounds that it infringed the inherent right of the Innu Nation to self-government over all matters concerning the protection of Innu youth. However, applying the Supreme Court’s decision in Van der Peet, the claim was dismissed on technical grounds, the court holding that having ‘provided no particulars as to the nature of the Aboriginal right at issue, other than to mention that the Innu had a policy of settling disputes concerning youth protection within the Nation, the community or the extended family’, the claim had been pleaded in insufficient detail and at an excessive level of generality.64 The question arose again before the Saskatchewan Queen’s Bench (Family Law Division) in Re R.T.65 In defending the policy of the Saskatchewan Department of Community Resources and Employment (DCRE) not to place Aboriginal children for adoption without the consent of the Band or the NASC agency, the Band and the agency argued that the Aboriginal community had a constitutionally protected right under s 35 to ‘speak for the children’. Although this way of conceptualizing the right suggested something akin to legal guardianship over the children, the arguments presented on behalf of the Band made it clear that it amounted, in essence, to a claim to self-government over the placement and adoption of Aboriginal children:

In this case, the NASC Agency/band argue that Aboriginal “notions of community and kinship” are an integral part of Aboriginal society. First Nations families and communities share responsibility for the upbringing, training, education and well-being of their children. They submit that the Aboriginal right of self-government includes the legal right and moral obligation to speak for persons who are under a legal disability, such as children. As this “right” has never been extinguished, The Child and Family Services Act cannot impair it by placing Aboriginal children for adoption without the band’s consent.66

Ryan-Froslie J. gave only cursory consideration to the argument, holding that there was insufficient evidence in this case to support the Band’s position:

The only evidence called by the NASC Agency/band was that of Dr. Katz who testified that “kinship” is an Aboriginal “value” and that “community” plays an important role in the raising of Aboriginal children. There was no evidence of what happens to Aboriginal children when no “kinship” or “community” resources are available to care for them. His evidence falls far short of establishing the right asserted by the NASC Agency/band.67

Applying the Van der Peet test, the court went on to hold that the right was too vague and general, having not been defined with a sufficient degree of specificity, that self-government over child welfare was neither a distinctive nor defining feature of the Band’s culture and, even if it could be established that there was such a right, there was no evidence that it existed pre-contact.68

Given the importance of the issue of self-government over child welfare for Aboriginal communities, the brevity of the discussion in both of these cases is disappointing. However, the judgments clearly illustrate the difficulties facing Aboriginal communities in satisfying the stringent conditions imposed by the Supreme Court for establishing an Aboriginal right under s 35, particularly with respect to the importance of the way in which the Aboriginal right is conceptualized and the evidence required to establish the ‘distinctive culture’ and ‘pre-contact’ tests. There is certainly nothing within either of these cases to suggest that, given the current attitude of the courts towards self-government, attempting to establish a more specific right to Aboriginal self-government over child welfare has any more immediate prospect of success.

The Power of the Sovereign to Extinguish and Infringe Aboriginal Rights

Establishing there is a constitutionally protected right to self-government in the Canadian courts, either generally or more specifically with respect to child welfare, currently looks a remote prospect. However, even assuming an Aboriginal community was able to successfully negotiate the hurdles set down in Van der Peet, the scope and meaning of the right to self-government would still fall to be determined. Unfortunately, there is nothing within the current jurisprudence of the court to suggest that it would deliver a concept of self-government in which Aboriginal sovereignty was afforded any greater recognition and respect. Indeed, a more fundamental challenge to Aboriginal sovereignty remains to be faced: the Supreme Court’s unquestioning acceptance of the sovereign right of the Crown to extinguish and, post-constitutional entrenchment in 1982, regulate Aboriginal rights at will. As Michael Asch and Patrick Macklem argue, far from proceeding from an inherent rights approach, this betrays the Court’s actual adherence to a contingent rights approach.69 It entrenches Canadian sovereignty over Aboriginal peoples, vesting overriding power in the Canadian government to confine and limit Aboriginal rights in accordance with its own agenda. Aboriginal rights, including the Aboriginal right to self-government over child welfare, thus remain deeply dependant on the will of the Canadian government.

Extinguishment

It was accepted without question by the Supreme Court in R v Sparrow that until 1982 Aboriginal rights could be extinguished at will by the British Crown. Although the threshold for establishing extinguishment was set high, with the Supreme Court holding that the Crown must prove a ‘clear and plain intent’, prior to 1982 there were no constitutional limits on the Crown (and the federal government as its successor) simply legislating to extinguish any Aboriginal rights it deemed appropriate.70 Whether or not the federal government had so acted to extinguish the Aboriginal right to self-government is a controversial question.71 The Supreme Court has yet to rule on the issue. There are, however, strongly differing views discernible at the provincial court level. Those who support the position that any right to self-government was successfully extinguished by the British Crown’s unilateral assertion of sovereignty point to the Royal Proclamation of 1763, the treaties entered into between the Crown and the First Nations and the granting of exclusive jurisdiction over ‘Indians and Lands reserved for the Indians’ to the federal government under s 91(24) of the Constitution Act 1867, as evidence of the clear and plain intent of the Crown.72 However, in an important judgment of the British Columbia Supreme Court, Williamson J took the contrary view, holding that space had remained within the constitutional structure of Canada for a third level of Aboriginal government to survive.73

Campbell v British Columbia (2000) concerned a challenge brought by three opposition members of the British Columbia legislative assembly to the constitutionality of the Nisga’a Final Agreement. It was argued that insofar as the Nisga’a Agreement, a landmark modern treaty between the Nisga’a, the federal government and the BC provincial government, purported to bestow legislative powers on Nisga’a government that could prevail over federal and provincial law it was unconstitutional. The basis for this argument was that any Aboriginal right to self-government had been extinguished by the exhaustive division of powers between the federal and provincial governments set down in ss 91 and 92 of the Constitution Act 1867.74 The British Columbia Supreme Court disagreed. Williamson J held that ss 91 and 92 did not exclude continuing self-government by Aboriginal peoples because all that was distributed between the federal and provincial governments by virtue of those provisions were the powers which until 1867 had been vested in the colonies.75 Anything outside the powers of the colonies or which the imperial authorities had chosen to leave undisturbed, including Aboriginal rights to self-government, therefore remained outside the powers of the federal and provincial governments: it was a division entirely ‘internal’ to the Crown.76 Indeed, the only real effect of s 91(24) on the position of Aboriginal peoples was that exclusive jurisdiction over ‘Indians and Lands reserved for Indians’ was assigned to the federal government who now stood with respect to Aboriginal peoples in the place of the imperial Crown.77 The court supported this conclusion by pointing to the continuing existence and recognition within the Canadian courts of Aboriginal legal systems and laws.78 Williamson J argued that this made it clear that a limited right of self-government, including a degree of legislative power, remained with Aboriginal peoples post-confederation.79 In the absence of clear and plain extinguishment, the court thus concluded that the Aboriginal right to self-government, including law-making powers, must now be protected under s 35 of the Constitution.

Campbell v British Columbia provides strong support for the argument that Aboriginal rights to self-government have survived express extinguishment. However, even if the approach adopted by Williamson J were to find favour with the Supreme Court, there is a second potential difficulty to be negotiated. Although the Supreme Court has yet to rule on whether Aboriginal self-government has been extinguished due to express executive or legislative action by the Canadian government, a minority judgment of the Supreme Court has addressed the question of whether an Aboriginal right to self-government may have been extinguished by virtue of its necessary incompatibility with the Crown’s assertion of sovereignty.80 Mitchell v M.N.R. (2001) concerned a claim by a member of the Mohawk Nation to be free to engage in unrestricted trade across the US–Canadian border pursuant to an Aboriginal right protected under s 35. In establishing whether an alleged Aboriginal right fell within the protective scope of s 35, Binnie J81 modified the test set down in Van der Peet to introduce the concept of ‘sovereign incompatibility’.82 Whilst it is clear that not all Aboriginal practices, traditions and customs are incompatible with the Crown’s assertion of sovereignty, Binnie J held that there are legitimate concerns as to how some Aboriginal customs and traditions, such as engaging in cross-border trade, may be reconciled with contemporary Canadian sovereignty.83 The claimants argued that although they accepted the fact of Canadian sovereignty, inherent Aboriginal rights, which in their case included the right to cross the international border without restriction or control, originated in Mohawk sovereignty and were an expression of their surviving autonomy as members of the Iroquois Confederacy.84 Binnie J rejected this argument, holding that one of the ‘defining characteristics’ of the British Crown’s acquisition of sovereignty over Canada was that it acted as a necessary limit on any incompatible Aboriginal rights.85 Any Aboriginal rights which were necessarily inconsistent with the inherent sovereignty of the Crown were therefore automatically extinguished.86 Applying this to the facts of the case, Binnie J held that the right to exercise control over its international borders has always been ‘a fundamental attribute of sovereignty’, such that the alleged Aboriginal right to move and trade freely across the Canadian border would be fundamentally incompatible with the core attributes of Canadian sovereignty. Any such right would therefore have been automatically extinguished, removing the need to prove a ‘clear and plain’ intent on the part of the Canadian federal government.87

Binnie J is careful to make clear that the doctrine of ‘sovereign incompatibility’ does not ‘foreclose’ the argument on internal self-government.88 Indeed, he points out that the sovereign incompatibility argument has not precluded the United States from sanctioning internal forms of self-government which are considered expressions of residual Aboriginal sovereignty.89 It is, however, clear from his analysis that any Aboriginal right which infringes on the ‘external relations’ power of the Canadian government will almost inevitably fall foul of this doctrine.90 He also notes that ‘sovereign incompatibility’ was accepted as a legitimate limitation on the powers of Aboriginal self-government in the 1993 working report of the Royal Commission on Aboriginal Peoples.91 This approach therefore raises serious questions as to the scope of any surviving right to Aboriginal self-government in which Aboriginal sovereignty constitutes a core component. It poses a further, potentially significant, obstacle to successfully establishing meaningful sovereignty for Aboriginal peoples under s 35 of the Constitution, including their ultimate right to decide on matters internal to the community without limitation or control by the Canadian state.

Infringement

Post 1982, Aboriginal rights cannot be extinguished. However, it has always been the case and remains so despite the constitutional entrenchment of Aboriginal rights in s 35, that Aboriginal rights can be infringed. This was again unquestioningly accepted by the Supreme Court in Sparrow despite the absence of any clear mandate justifying regulatory measures within the language of the constitutional provisions themselves.92 Nevertheless, the Supreme Court had no difficulty reading the government’s regulatory power into s 35, holding that Aboriginal rights are not absolute and the validity of any legislation that purports to infringe Aboriginal rights will simply depend on whether or not it meets the Sparrow justificatory test.93 This justificatory test, according to Dickson CJ, must be informed by the historical fiduciary relationship between Aboriginal peoples and the Crown which places a special ‘trust-like’ responsibility on the government and restrains any unfettered exercise of sovereign power.94 This requires that any regulation of Aboriginal rights must: (1) be enacted according to a valid objective; and (2) uphold the honour of the Crown.95

Dickson CJ’s justificatory test is clearly informed by the perceived need to find an acceptable ‘compromise’ between the constitutional priority being afforded to Aboriginal rights and the wider interests of Canadian society.96 He does, however, envisage the justificatory standard in Sparrow providing a high level of substantive protection for Aboriginal rights against legislative encroachment:

The constitutional recognition afforded by the provision therefore gives a measure of control over government conduct and a strong check on legislative power. While it does not promise immunity from government regulation in a society that, in the twentieth century, is increasingly more complex, interdependent and sophisticated, and where exhaustible resources need protection and management, it does hold the Crown to a substantive promise. The government is required to bear the burden of justifying any legislation that has some negative effect on any Aboriginal right protected under s 35(1).97

This burden, according to the court, will be a heavy one. Dickson CJ provides some guidance as to what will constitute a valid legislative objective for the justificatory test, specifically referring to: conserving and managing a natural resource; measures preventing harm to the general populace or to Aboriginal peoples themselves; or other ‘compelling and substantial’ objectives. Importantly, the Court rejects a broad ‘public interest’ justification, holding that it is ‘so vague as to provide no meaningful guidance and so broad as to be unworkable as a test for the justification of a limitation on constitutional rights’.98

The justificatory standard set down in Sparrow provides important protection for Aboriginal peoples against the absolute sovereignty of the Canadian government. However, the value of that protection has been eroded by subsequent interpretations of the Sparrow test which have seen it reduced to little more than the ‘public interest’ standard explicitly rejected by Dickson CJ as too ‘vague’ and ‘unworkable’.99 The Supreme Court returned to the question of the justificatory standard for the infringement of Aboriginal rights in R v Gladstone,100 the court concluding that, given the particular circumstances of the case, the Sparrow