From Terra Nullius to Affirmation: Reconciling Aboriginal Rights with the Canadian Constitution

Canadian Journal of Law and Society

Volumn 17, Issue 2, 2002, Pages 23-39

  Asch, Michael ^a  

^a UNIVERSITY OF VICTORIA   (Canada)

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EID: 85013312334     PISSN: 08293201     EISSN: 19110227     Source Type: Journal    
DOI: 10.1017/S0829320100007237     Document Type: Article

References (38)

1. M. Asch & 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) 38 [hereinafter “Challenging Assumptions”].
2. M. Asch, “Errors in Delgamuukw”, Aboriginal and Treaty Rights in Canada: Essays on Law, Equality and Respect for Difference 5 at 221.
3. M. Asch, “From Calder to Van der Peet: Aboriginal Rights and Canadian Law, 1973–96” in P. Havemann, ed. Indigenous Peoples’ Rights in Australia, Canada, and New Zealand (Melbourne: Oxford U niversity Press, 1999) 428 [hereinafter “From Calder to Van der Peet”].
4. Delgamuukw v. British Columbia (1991), 79 D.L.R (4th) (B.C.S.C.) 185 at 441.
5. R. v. Sparrow, [1990] 70 D.L.R. (4th) 385 at 398.
6. R. v. Van Peet, [1996] 2 S.C.R. 507
7. Milirrpum v. Nabalco Pty. & Commonwealth of Australia (1971), FLR 141 (SCNT).
8. Mabo v. Queensland (1992), 107 A.L.R. 1 (Aust. H.C.) at
9. 27 cited in R. Spaulding, “Are Aboriginal Rights Discriminatory?” (Master of Laws Thesis, Queen's University 1995) [unpublished] at 16.
10. United Nations, General Assembly, Declaration on the Granting of Independence to Colonial Countries and Peoples (New York: United Nations, 1961)
11. cited in M. Asch, Home and Native Land: Aboriginal Rights and the Canadian Constitution (Toronto: Methuen Publishers, 1984) at 130 [hereinafter Home and Native Land].
12. Western Sahara: Advisory Opinion [1975] International Court of Justice Reports 12 atl4.
13. Home and Native Land, International Court of Justice Reports 36.
14. This position is echoed by Kent McNeil: “No Canadian court has yet come up with a convincing explanation of what happened to Aboriginal sovereignty, or how that sovereignty can be denied in light of the Indian treaties which Canada continued to sign after Confederation” (Emerging Justice, International Court of Justice Reports 6 at 101).
15. Quoted with respect to Treaty 11 in R. Fumoleau, As Long as This Land Shall Last: A History of Treaty 8 and Treaty II, 1870–1939 (Toronto: McClelland & Stewart, 1975) at 166.
16. Treaty 7 Elders and Tribal Council, The True Spirit and Original Intent of Treaty 7 (Montreal: McGill-Queen's University Press, 1996)
17. R. Price, ed. The Spirit of the Alberta Indian Treaties (Montreal: Institute for Research on Public Policy and Indian Association of Alberta, 1980).
18. S. Smith, Dene Treaties, Anthropology and Colonial Relations (PhD Dissertation, University of Alberta 1979) [unpublished] at 80.
19. W. Aasen, “Report on Treaty 8 in British Columbia” prepared for the Royal Commission on Aboriginal Peoples by the B.C. Treaty 8 Tribal Council [unpublished, 1993]
20. R. Lamothe, “It Was Only a Treaty': Treaty 11 According to the Dene of the Mackenzie Valley” prepared for the Deh Cho Tribal Council, the Dene Nation and the Royal Commission on Aboriginal Peoples [unpublished, 1993]; and S. Smith, “The Treaty Relationship: Dene and Treaty 11” prepared for the Royal Commission on Aboriginal Peoples by the Deh Cho Tribal Council [unpublished, 1993].
21. There are many examples of the view, on the part of Indigenous peoples, that treaties did not extinguish sovereignty and were, in fact, intended to develop political relations. Some of these are: P. Williams, “Kayanerenh Teskenonhweronne: Relations Between the Haudenosaunee and the Crown, 1664–1993” prepared for the Royal Commission on Aboriginal Peoples [unpublished, 1993] and
22. B. Wicken, “An Overview of the 18th Century Treaties Signed Between the Mi'kmaq and Wuastuwiuk Peoples and the English Crown, 1725–1928” report submitted to the Royal Commission on Aboriginal Peoples [unpublished, 1993].
23. “Challenging Assumptions,” An Overview of the 18th Century Treaties Signed Between the Mi'kmaq and Wuastuwiuk Peoples and the English Crown, 1725–1928 15.
24. B. Slattery, “Aboriginal Sovereignty and Imperial Claims” (1991) 29 Osgoode Hall L. J. 681. Slattery develops an analogous argument which he bases on the presumption of a “Principle of Territoriality” which suggests that “every human society whose members draw the essentials of life from territories in their possession. has a right to these territories as against other societies and individuals.” He later (Challenging Assumptions, at 701) uses this principle to assert that the lands in Canada and the United States could not have been “legally vacant territories” prior to colonization and hence that a terra nullius thesis is inapplicable. While I accept that the Principle of Territoriality may be useful in certain circumstances, I believe that the principle that human societies always contain institutions and values reconcilable to the concepts of sovereignty and underlying title, as constituent elements of their nature, is a firmer basis upon which to rest the rights discussed here.
25. M. Asch & N. Zlotkin, “Affirming Aboriginal Title: A New Basis for Comprehensive Claims Negotiations” 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) [hereinafter “Affirming Aboriginal title”].
26. “From Calder to Van der Peet” Aboriginal and Treaty Rights in Canada: Essays on Law, Equality and Respect for Difference 17.
27. “Affirming Aboriginal title”, Aboriginal and Treaty Rights in Canada: Essays on Law, Equality and Respect for Difference 53.
28. Royal Commission on Aboriginal Peoples, “Partners in Confederation” (Ottawa: Minister of Supply and Services, 1993) [hereinafter “Partners in Confederation”].
29. The RCAP argument is taken up in some detail by Judge Binnie of the Supreme Court of Canada in some obiter remarks in the recent case of Mitchell v. M.N.R.I, [2001] 1 S.C.R. 9, where he describes with approval the American concept of “residual” aboriginal sovereignty. In Emerging Justice, Kent McNeil proposes a similar approach, which acknowledges “the limited territorial sovereignty of the Aboriginal peoples as nations within Canada”, Partners in Confederation 6 at 95.
30. “Partners in Confederation”, Partners in Confederation 57 at 699, fn 18.
31. One vision of the future is articulated by G. Alfred in Heeding the Voices of Our Ancestors (Toronto: University of Toronto Press, 1995) at 103 where he says “Mohawks see the consideration of self-government arrangements as part of the inevitable process of divesting themselves from colonized status and regaining the status of an independent sovereign nation.”
32. Royal Commission on Aboriginal Peoples, Transcripts of the Public Meetings of the Royal Commission on Aboriginal Peoples, The Pas, Manitoba (20 May, 1992) at 252.
33. S. Venne, “Understanding Treaty 6: An Indigenous Perspective” in M. Asch, ed. Aboriginal and Treaty rights in Canada: Essays in Law, Equity and Respect for Difference (Vancouver: University of British Columbia Press, 1997) 184.
34. Home and Native Land, Aboriginal and Treaty rights in Canada: Essays in Law, Equity and Respect for Difference 36 at 105
35. Leroy Little Bear, “Aboriginal Rights and the Canadian ‘Grundnorm'” in J.R. Ponting, ed. Arduous Journey: Canadian Indians and Decolonization (Toronto: McClelland and Stewart, 1986) 246.
36. Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.
37. R. v. Marshall, [1997] 3 S.C.R. 456.
38. J.E. Chamberlin, “Culture and Anarchy in Indian Country” 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) 3.