Judicial Justification of Recent Developments in Aboriginal Law

Canadian Journal of Law and Society

Volumn 17, Issue 2, 2002, Pages 41-71

  Christie, Gordon ^a  

^a YORK UNIVERSITY   (Canada)

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EID: 85008227238     PISSN: 08293201     EISSN: 19110227     Source Type: Journal    
DOI: 10.1017/S0829320100007249     Document Type: Article

References (92)

1. See, for example, R. v. Sparrow, [1990] 1 S.C.R. 1075 at 1098, paragraph 37 [hereinafter Sparrow].
2. Overviews of the histories and issues around the creation of Section 35, the series of constitutional conferences that followed, and the Charlottetown Accord can be found in M. Asch, Home and Native Land: Aboriginal Rights and the Canadian Constitution (Toronto: Methuen, 1984)
3. K. McRoberts and P. Monahan, eds. The Charlottetown Accord, the Referendum and the Future of Canada (Toronto: University of Toronto Press, 1993)
4. K. McNeil, “The Decolonization of Canada: Moving Toward Recognition of Aboriginal Governments”, (1994) 7 Western L. Hist. 113
5. reprinted in K. McNeil, Emerging Justice? Essays on Indigenous Rights in Canada and Australia (Saskatoon: Native Law Centre, 2001) [hereinafter Emerging Justice] 161; and
6. B. Schwartz, First Principles, Second Thoughts: Aboriginal Peoples, Constitutional Reform and Canadian Statecraft (Montreal: Institute for Research on Public Policy, 1986). 5
7. See, for example, A. Hutchinson, Waiting for Coraf: A Critique of Law and Rights (Toronto: University of Toronto Press, 1995)
8. J. Boyle, ed. Critical Legal Studies (New York: New York University Press, 1994)
9. R. Unger, The Critical Legal Studies Movement (Cambridge: Harvard University Press, 1986); and
10. D. Kairys, ed. The Politics of Law: A Progressive Critique (New York: Pantheon Books, 1982). Recently Kent McNeil remarked on the difficulty in avoiding the conclusion that economic and political considerations account for many of the recent developments in Aboriginal law.
11. See Kent McNeil, “The Vulnerability of Indigenous Land Rights in Australia and Canada” forthcoming in A. Buck et al, eds. Property Rights in the Colonial Imagination and Experience (Vancouver: University of British Columbia, 2003). 6 When stepping outside their role, reflecting on their practice of decision-making, Supreme Court judges claim they make decisions in an essentially apolitical fashion.
12. See, for example, Hon. Beverly McLachlin, “Courts, Legislatures and Executives in the Post-Charter Era”, and Hon. Bertha Wilson, “We Didn't Volunteer” in P. Howe & P. Russell, eds. Judicial Power and Canadian Democracy (Montreal: McGill University Press, 2001) 63 and 73, respectively [hereinafter “Post-Charter Era”, “We Didn't Volunteer” and Judicial Power and Canadian Democracy]. In this article I focus on jurisprudence itself, using it as a window into how the judiciary sees itself as justifiably changing the law concerning Aboriginal peoples.
13. Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), [1997] 3 S.C.R. 925 [hereinafter Winnipeg Child].
14. S.C.R. at 940, para. 18. McLachlin J. writes that “[a]s a general rule, judicial change is confined to incremental change ‘based largely on the mechanism of extending an existing principle to new circumstances'; courts will not extend the common law ‘where the revision is major and its ramifications complex'”. McLachlin is quoting with approval Watkins v. Olafson, [1989] 2 S.C.R. 750 [hereinafter Olafson] at 760–61, para. 13, 15.
15. See, for example, C. Fraser, Judicial Review Under the Canadian Charter of Rights and Freedoms: The Legitimacy Debate Comes to Canada (Master's Thesis, Halifax: Dalhousie University, 1992) [hereinafter Legitimacy Debate]
16. J. Hiebert, Limiting Rights: The Dilemma of Judicial Review (Montreal: McGill University Press, 1996) [hereinafter Limiting Rights]
17. P. Howe & P. Russell, ed. Judicial Power and Canadian Democracy, Limiting Rights: The Dilemma of Judicial Review 6
18. C. Mandredi, Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism, 2nd ed. (Don Mills: Oxford University Press, 2001) [hereinafter Paradox of Liberal Constitutionalism]
19. P. Monahan, Judicial Review and Democracy: A Theory of Judicial Review (Toronto: Legal Theory Workshop Series, University of Toronto, 1985) [hereinafter Theory of Judicial Review]
20. K. Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Toronto: Irwin Law, 2001) [hereinafter Supreme Court on Trial]; and
21. B. Strayer, The Canadian Constitution and the Courts: The Function and Scope of Judicial Review (Toronto: Butterworth 1983) [hereinafter Canadian Constitution and the Courts].
22. In Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721 at para. 48 [hereinafter Manitoba Language Rights] for example, the Court noted that “[t]he duty of the judiciary is to interpret and apply the laws of Canada and each of the provinces, and it is thus our duty to ensure that the constitutional law prevails.” While recognizing the interpretative difficulties around such projects, the tasks of interpreting and applying the Constitution are presented as the essential responsibilities of the courts. See in particular pages 213–20. Other academics seriously question whether the courts can (and do) restrict themselves to purely interpretative maneuvers. Their questioning, however, only highlights their belief that in a constitutional democracy courts should not be adopting - to the extent that it is possible - a ‘non-interpretivist’ approach to their role.
23. In Canadian Constitution and the Courts, S.C.R 9, Strayer explores the nature of constitutional adjudication, and finds two basic functions: that of enforcing the division of powers and that of enforcing the Charter.
24. See in this regard, amongst others, Limiting Rights, S.C.R 9, and Paradox of Liberal Constitutionalism, The Canadian Constitution and the Courts: The Function and Scope of Judicial Review, note 9.
25. The Court considers the jurisprudence on this matter, and sets out general conditions for judicial reform of the common law, in Friedmann Equity Developments v. Final Note, [2001] 1 S.C.R. 842 at para. 42–43 [hereinafter Friedmann Equity].
26. We can see the ‘unquestionableness’ of the pressing and substantial problem being itself a problem in Winnipeg Child, S.C.R. While Major J. found a pressing need to overrule the ‘born alive’ presumption active in private law matters dealing with the rights and interests of fetuses, McLachlin J. did not see that the need was sufficiently pressing and substantial (and called upon the legislature to address the problem, if any action were to be taken). Taken as a whole, McLachlin J.'s position is instructive: she places all the weight on the principle that the legislature is the proper organ for law reform, the consequence being that she moves toward advocating the principle that there are very few situations of such pressing and substantial need that the courts would be enjoined to step in to fill a legislative vacuum. In fact, her remarks in Winnipeg Child indicate that the greater the need for law reform, the less the courts should be seriously considering judicial reform, as the demand that the duly elected branch of government deal with the issue becomes overwhelming. While this may be her articulated position, it does not reflect the principles which drive the Court (and clearly Major J.), for in other instances the Court, faced with legislative incompetence on a major issue, steps into the fray.
27. See, for example, Vriend v. Alberta, [1998] 1 S.C.R. 493 [hereinafter Vriend], on the issue of sexual orientation as protected under s. 15 of the Charter. Furthermore, one might note that McLachlin J. in a reflective piece, has held that not all radical judicial activism is necessarily ‘bad'.
28. In discussing a decision of the Privy Council which placed women within the legal category of ‘persons', she notes that “[t]he change was radical, but most would argue, desirable and long overdue.” See “Post-Charter Era”, S.C.R. Whether or not the anticipated change is incremental or not can also be an issue dividing the Court.
29. See, for example, R. v. Hynes, [2001] S.C.C. 82. As we see in the rest of this section, an additional factor which seems to motive the Court toward action is that the issue revolve around the application of constitutional provisions, values and principles. For example, in his dissent in R. v. Hynes, (at para. 120.), Major J. notes that “[i]f this Court's understanding of the Charter develops over time, changes should be made to rules that are inconsistent with that present understanding.”
30. See, for example, the reasons for restraint offered by McLachlin J. in Olafson, S.C.C 8 at para. 14
31. Friedmann Equity, S.C.C 11
32. and Bow Valley Husky (Bermuda) v. Saint John Shipbuilding [1997] 3 S.C.R. 1210.
33. Cases dealing with racial discrimination are illustrative. In Christie v. York (1939), 4 D.L.R. 723, the power of a Montreal bar-owner to restrict service to ‘white’ customers was upheld on the basis of freedom of commerce. After the Second World War social attitudes to racial discrimination went through a dramatic period of change, and the law followed the direction taken.
34. The notion that the common law might be required to change over time to reflect evolutions in society is presented as a principle in R. v. Salituro, [1991] 3 S.C.R. 654. Not only have the legal tools changed (with the creation of Bills of Rights, Human Rights codes, and the Charter), but the approach to such situations has altered substantially. It would be difficult to imagine the argument for freedom of commerce being considered today as a possible defense in the context of overt racial discrimination.
35. See, for example, Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130.
36. The Court also discussed the promotion of general democratic values in Vriend, S.C.R 13 (see in particular the remarks of Sopinka J.)
37. In Edwards v. Canada (A.G.), [1930] A.C. 124, Lord Sankey, for the Privy Council, noted that “[t]he British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits”.
38. Reference re Secession of Quebec, [1998] 2 S.C.R. 217 [hereinafter Secession of Quebec].
39. Significant potential for conflict exists in relation to the Charter, for Charter rights might be argued to be (to some degree) antagonistic to the protection of property rights. As the common law was by and large built with the aim of protecting property rights, the common law might be subject to substantial change if the door were open to Charter evaluation. One can see the Court struggling with this in RWDSU v. Dolphin Delivery, [1986] 2 S.C.R. 573 [hereinafter Dolphin Delivery].
40. The Supreme Court presents essentially the same argument in relation to constitutional principles in Secession of Quebec, S.C.R 22.
41. This suggestion about how constitutional values are upheld in a constitutional democracy could be buttressed with such theoretical approaches as the ‘maximin’ system developed by J. Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), and
42. S. Freeman, ed. Collected Papers (Cambridge: Harvard University Press, 1999)] but we do not need to go beyond the level of description offered herein. The task at hand only requires that we have a grasp of how the judiciary attempts to justify its activity in a constitutional democracy. Whether its attempts could themselves be ‘objectively’ justified (that is, in an external sense) is not a central concern in this work.
43. For example, rights contained with the Charter of Rights and Freedoms are subject to limitations arising from Section 1 of the Constitution Act, 1982, limitations reasonably imposed in a ‘free and democratic society'. See R. v. Oakes, [1986] 1 S.C.R. 103, for the Supreme Court's articulation of the parameters of Section 1 analysis.
44. At this juncture legal realists and critical legal theorists argue that judicial decisions are determined not by rules or principles, but by such things as the particular biases of the judge, the psychological makeup of the judge, the social/economic status of the judge, or other political factors. See B. Leiter, “Legal Realism” in D. Patterson, ed. A Companion to Philosophy of Law and Legal Theory (Oxford: Blackwell's Publishers, 1996) 261 [hereinafter Companion to Philosophy of Law and Legal Theory]
45. and texts, A Companion to Philosophy of Law and Legal Theory 5.
46. While much of this language comes from Rawls, see, for example, “The Idea of Public Reason Revisited” in Collected Papers, A Companion to Philosophy of Law and Legal Theory 26 at 573, and
47. G. Gaus, Justificatory Liberalism: An Essay on Epistemology and Political Theory (New York: Oxford University Press, 1996) [hereinafter Justificatory Liberalism], the process of justification outlined is clearly in the mind of the judiciary.
48. See, for example, M. Asch and C. Bell, “Challenging Assumptions: The Impact of Precedent in Aboriginal Rights Litigation” in M. Asch, ed. Aboriginal and Treaty Rights in Canada: Essays on Law, Equality and Respect for Difference (Vancouver: University of British Columbia Press, 1997).
49. K. McNeil, Common Law Aboriginal Title (Oxford: Clarendon Press, 1989).
50. See, for example, K. McNeil, “How Can Infringements of the Constitutional Rights of Aboriginal Peoples be Justified?”, and “Aboriginal Title as a Constitutionally Protected Property Right” in Emerging Justice, Common Law Aboriginal Title 4, 281 and 292
51. J. Borrows, “Sovereignty's Alchemy: An Analysis of Delgamuukw” (1999) 37 Osgoode Hall L. J. 537; and
52. G. Christie, “Delgamuukw and the Protection of Aboriginal Land Interests” (2000) 32:1 Ottawa L. Rev. 85. The weak protection offered can be seen in the discussion of Aboriginal title in the next section.
53. R. v. Van der Peet, [1996] 2 S.C.R. 507 [hereinafter Van der Peet]
54. S.C.R.” at 548–63, para. 44–74. The ‘integral to the distinctive culture’ test seemingly emerged from a single line in Sparrow, S.C.R 3 at 1099, paragraph 40.
55. This test has been criticized on a variety of grounds: see, R. Barsh & J. [sakej] Youngblood Henderson, “The Supreme Court's Van der Peet Trilogy: Naive Imperialism and Ropes of Sand” (1997) 42 McGill L.J. 993
56. J. Borrows, “Frozen Rights in Canada: Constitutional Interpretation and the Trickster” (1997) 22 Am. Indian L. Rev. 37
57. K. McNeil, “Aboriginal Title and Aboriginal Rights: What's the Connection?” (1997) 36 Alta. L. Rev. 117
58. P. Monture-Angus, Journeying Forward; Dreaming First Nations’ Independence (Halifax: Fernwood 1999)
59. L. Rotman, “Hunting for Answers in a Strange Kettle of Fish: Unilateralism, Paternalism and Fiduciary Rhetoric in Badger and Van der Peet’ (1997) 8:2 Constitutional Forum 40; and
60. A. Zalewski, “From Sparrow to Van der Peet: The Evolution of a Definition of Aboriginal Rights” (1997) 55:2 U.T. Fac. L. Rev. 435.
61. R. v. Gladstone, [1996] 2 S.C.R. 723 [hereinafter Gladstone]
62. Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 [hereinafter Delgamuukw]
63. Constitution Act, 1982, S.C.R 1, Section 1.
64. This convergence is questioned by K. McNeil in his “Envisaging Constitutional Space for Aboriginal Governments” (1993) 19 Queen's L. J. 95, reprinted in Emerging Justice, S.C.R 4, 184 [hereinafter “Envisaging Constitutional Space”]. At page 195 McNeil asks: “Given the legislative purpose to constitutionalize Aboriginal rights, and the desire to give Section 35(1) ‘a generous, liberal interpretation’ why did the Supreme Court decide that those rights are still subject to justifiable federal legislation?”
65. see Sparrow, S.C.R 3 at para. 56.
66. R. Dworkin, A Matter of Principle (Cambridge: Harvard University Press, 1985).
67. In her dissent in Van der Peet, McLachlin J. offered an alternative solution to the underlying problem she felt created the need to change the Sparrow approach to the justification of legislative infringement. She felt the need to generate a judicially-defined reconciliation was artificially created by the sort of test for defining Aboriginal rights constructed by the Court. McLachlin J. would rather see that Aboriginal right be carefully defined so as to avoid extensive conflict between these rights and other interests within the larger non-Aboriginal society. This would be accomplished through a different approach to defining Aboriginal rights. Rather than focus on activities which were integral to the distinctive culture of Aboriginal community, McLachlin J. suggests more attention be paid to how the activities were historically regulated, controlled or limited by the Aboriginal community itself. For example, she would have re-defined the right to commercially fish in Gladstone by noting that historically the Heiltsuk only fished to provide for basic needs. The right protected under Section 35, then, would be a modernized version of this practice, a right to fish commercially to the degree that this provided a reasonable livelihood for the fishers. This would forestall the need to judicially determine how Aboriginal societies would be reconciled with the larger non-Aboriginal population, for the re-defined right would (as in Sparrow) pose an insignificant threat. McLachlin J.'s arguments seem to have held some sway, for in a more recent (and controversial) decision the Court initiated analysis by carefully defining the right at issue so as to build in an ‘internal limit'. See R. v. Marshall, [1999] 3 S.C.R. 456. This case explored a treaty right to ‘gather necessaries’ to trade. There was nothing within the treaty text which indicated a limitation to the extent to which resources could be gathered. Finding internal limits within treaty rights - while not similarly looking to limits which might restrict government activity - might lead some to question its application in this context.
68. “Envisaging Constitutional Space”, S.C.R 54.
69. Manitoba Language Rights, S.C.R 10.
70. “Envisaging Constitutional Space”, S.C.R 54 at 204–205.
71. The legal vacuum argument might also explain events surrounding the finding of a treaty right to gather necessaries for trading purposes in Marshall, S.C.R 63.
72. The mere possibility that such a right might be unregulated lead to widespread unrest and a Supreme Court issuance of a Motion for Rehearing, [1999] 3 S.C.R. 533 which clearly amounted to an attempt to sweep away the perception that anything like a legal vacuum was a possibility.
73. The Court openly acknowledged that it was doing so, and subsequent analysis has picked up on this particular ‘dialogue’ between the Court and the legislatures. See, for example, Sparrow, S.C.R at 1105, paragraph 53: “Section 35(1), at the least, provides a solid constitutional base upon which subsequent negotiations can take place”
74. Delgamuukw, S.C.R at para. 186: “. the Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith. Ultimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this Court, that we will achieve.
75. ‘the reconciliation of the pre-existence of [A]boriginal societies with the sovereignty of the Crown'”. For discussion of this legislative/judicial interplay see Jonathan Rudin, “One Step Forward, Two Steps Back: The Political and Institutional Dynamics Behind the Supreme Court of Canada's Decisions in R. v. Sparrow, R. v. Van der Peet and Delgamuukw v. British Columbia” (1998) 13 J. L. & Social Policy 67.
76. See, for example, P. Hogg & A. Bushell, “The Charter Dialogue Between Courts and Legislatures (Or Perhaps the Charter of Rights Isn't a Bad Thing After All)” (1997) 35 Osgoode Hall L.J. 75
77. C. Manfredi & J. Kelly, “Six Degrees of Dialogue: A Reply to Hogg and Bushell” (1999) 37 Osgoode Hall L.J. 513
78. P. Hogg & A. Thornton, “Reply to ‘Six Degrees of Dialogue'” (1999) 37 Osgoode Hall L.J. 529
79. F. L. Morton, “Dialogue or Monologue?” in Judicial Power and Canadian Democracy, Osgoode Hall L.J 6. There are two polar views on this notion of ‘dialogue'. On the one hand there are those who see it happening to a large degree, those who go on to argue that this phenomenon has the potential of defusing charges that the Supreme Court is overly active, and political. On the other hand there are those who either see the dialogue as one- sided or non-existent, those who see the Supreme Court as being entirely too power- hungry and dangerous. Both sides are well represented in Judicial Power and Canadian Democracy.
80. Supreme Court on Trial, Osgoode Hall L.J 9
81. In examining justification for the imposition of authority of law through the issuance of directives and efforts to enforce them, Vincent Wellman considers the Hobbesian argument, that “[s]ome such directives are necessary, lest social life degenerate into chaos, and some enforcement. necessary, so long as the subjects are likely to act on the strength of their own desires.” See V. Wellman, “Authority of Law” in Companion to Philosophy of Law and Legal Theory, Judicial Power and Canadian Democracy 30 at 580. This form of justification will have an important exception: “Suppose a country conquers its neighbor, and proceeds to install its own legal system in the place of the previously existing and legitimate regime. Does the Hobbesian argument compel the conclusion that the usurper has genuine authority? After all. the usurper is now fulfilling the role of political authority by issuing, and enforcing, directives that seek to preclude the members of the now-conquered society from deciding through their own individual deliberations, how to act. But that justification will not hold for the usurper, for, without the usurper the previous regime would still be in power and its directives would suffice to govern.” Judicial Power and Canadian Democracy. at 581. Given that Aboriginal peoples in Canada were not conquered, this point is enhanced.
82. It is instructive to note, for example, attempts by the Mikmaq to have recognized fishery plans it had in place around the Marshall dispute. See, for example, K. Coates, The Marshall Decision and Native Rights (Montreal-Kingston: McGill-Queen's University Press, 2000).
83. See, for example, W. Kymlicka, Multicultural Citizenship (Oxford: Oxford University Press, 1995).
84. P. Macklem argues, however, that one must be careful not to simply distinguish between the two on the basis of factors such as the voluntariness of inclusion within Canada, as certain minority populations may not themselves have consented to their place in multicultural Canada: see P. Macklem, Indigenous Difference and the Constitution of Canada (Toronto: University of Toronto Press, 2001) at 60–61, 73.
85. Worcester v. Georgia (1832) 32 U.S. (6 Pet.) 515
86. Cherokee Nation v. Georgia (1831) 30 U.S. (5 Pet.) 1
87. Johnson and Graham's Lessee v. William M'Intosh (1823) 21 U.S. (8 Wheat.) 543.
88. See, for example, Mitchell v. M.N.R. [2001] 1 S.C.R. 911.
89. Here I am using the term ‘individual’ loosely, to include groups within society which may have interests accorded the status of rights, so long as they are seen as sufficiently important to impose obligations on others. For example, francophones in Canada are accorded language rights: see, D. Reaume, “Official-Language Rights: Intrinsic Value and the Protection of Difference” in W. Kymlicka and W. Norman, ed. Citizenship in Diverse Societies (Oxford: Oxford University, 2000) 245.
90. As an example, see Taiaiake Alfred's discussion of the traditions of his community in Peace, Power, Righteousness: An Indigenous Manifesto (Oxford: Oxford University Press, 1999) at 20–23.
91. This claim runs parallel to that argued by John Gray, that liberalism, far from being value- neutral within its value-pluralist position, privileges one value - liberty - above all others. What makes this especially problematic in modern societies is the sense given this notion of liberty, as “liberal freedom. is the freedom of inordinacy, an hubristic compound of antinomian individualism with a sentimental humanism.” See, J. Gray, Post-Liberalism: Studies in Political Thought (New York:: Routledge, 1993) at 21. Faced with separate and distinct systems of living based on different orderings of value and different senses of +'liberty'. See, for example, Alfred, Taiaiake Alfred's discussion of the traditions of his community in Peace, Power, Righteousness: An Indigenous Manifesto 82, liberal systems run the risk of imposing their orderings on others. In the context of the judiciaries’ treatment of Aboriginal interests, this undercuts the argument for internal justification advanced by the courts.
92. In an early work examining the meaning and potential impact of Section 35 Brian Slattery characterized constitutionally protected Aboriginal and treaty rights with this expression. See, Slattery, “The Constitutional Guarantee of Aboriginal and Treaty Rights” (1983) 8:1 Queen's L. J. 232 at 251 -53.