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Judicial Justification of Recent Developments in Aboriginal Law

Published online by Cambridge University Press:  18 July 2014

Gordon Christie
Gordon Christie
Affiliation:
Osgoode Hall Law School, York University, 4700 Keele Street, Toronto (Ontario)CanadaM3J 1P3, [email protected]
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Abstract

Over the last few decades the Supreme Court of Canada has been working out what the constitutionalization of Aboriginal rights entails. Early jurisprudence took a rights-based approach to the protection of these rights, affording them a significant degree of protection from legislative infringement. In more recent decisions, however, the Supreme Court has markedly reduced the degree of protection these rights will enjoy. The judiciary has developed a set of general principles concerning the justification of judicial activism, principles ultimately grounded in a vision of Canada as a constitutional democracy and the role of the judiciary in such a democratic structure. This work examines the ways by which the judiciary might attempt to deploy the principles, and the vision on which they depend, in efforts to justify its recent activism in the realm of Aboriginal rights.

Résumé

Pendant les dernières décennies, la Cour suprême du Canada a élaboré les conséquences de la constitutionalisation des droits autochtones. La jurisprudence a d'abord adopté une approche fondée sur les droits envers leur protection, les mettant dans une large mesure à l'abri d'intrusions législatives. Dans des décisions plus récentes toutefois, la Cour suprême à considérablement réduit le degré de protection dont ces droits jouissent. Elle a développe un ensemble de principes généraux sur la justification de l'activisme judiciaire, des principes qui s'appuient ultimement sur une vision du Canada comme démocratie constitutionnelle et le rôle du judiciaire dans une telle structure démocratique. L'article analyse les voies qui s'ouvrent à la Cour pour déployer les principes et la vision dont ils émanent, afin de justifier son activisme récent dans le domaine des droits des Autochtones

Type
Aboriginally and Normativity/Autochtonie et normativités
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 17 , Issue 2 , August 2002 , pp. 41 - 71
Copyright
Copyright © Canadian Law and Society Association 2002

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References

1 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), C.11, [hereinafter Constitution Act, 1982].

2 Ibid. s. 35 (1): “The existing [A]boriginal and treaty Rights of the [A]boriginal Peoples of Canada are hereby recognized and affirmed.”

3 See, for example, R. v. Sparrow, [1990] 1 S.C.R. 1075 at 1098, paragraph 37 [hereinafter Sparrow].

4 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 Asch, M., Home and Native Land: Aboriginal Rights and the Canadian Constitution (Toronto: Methuen, 1984)Google Scholar; McRoberts, K. and Monahan, P., eds., The Charlottetown Accord, the Referendum and the Future of Canada (Toronto: University of Toronto Press, 1993)Google Scholar; McNeil, K., “The Decolonization of Canada: Moving Toward Recognition of Aboriginal Governments”, (1994) 7 Western L. Hist. 113Google Scholar, reprinted in McNeil, K., Emerging Justice? Essays on indigenous Rights in Canada and Australia (Saskatoon: Native Law Centre, 2001)Google Scholar [hereinafter Emerging Justice] 161; and Schwartz, B., First Principles, Second Thoughts: Aboriginal Peoples, Constitutional Reform and Canadian Statecraft (Montreal: Institute for Research on Public Policy, 1986).Google Scholar

5 See, for example, Hutchinson, A., Waiting for Coraf: A Critique of Law and Rights (Toronto: University of Toronto Press, 1995)Google Scholar; Boyle, J., ed., Critical Legal Studies (New York: New York University Press, 1994)Google Scholar; Unger, R., The Critical Legal Studies Movement (Cambridge: Harvard University Press, 1986)Google Scholar; and Kairys, D., ed., The Politics of Law: A Progressive Critique (New York: Pantheon Books, 1982).Google Scholar 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. See McNeil, Kent, “The Vulnerability of Indigenous Land Rights in Australia and Canada” forthcoming in Buck, A.et al., eds., Property Rights in the Colonial Imagination and Experience (Vancouver: University of British Columbia, 2003).Google Scholar

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. See, for example, Hon. Beverly McLachlin, “Courts, Legislatures and Executives in the Post-Charter Era”, and Wilson, Hon. Bertha, “We Didn't Volunteer” in Howe, P. & Russell, P., eds., Judicial Power and Canadian Democracy (Montreal: McGill University Press, 2001) 63 and 73Google Scholar, 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.

7 Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), [1997] 3 S.C.R. 925 [hereinafter Winnipeg Child].

8 Ibid. 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.

9 See, for example, Fraser, C., Judicial Review Under the Canadian Charter of Rights and Freedoms: The Legitimacy Debate Comes to Canada (Master's Thesis, Halifax: Dalhousie University, 1992)Google Scholar [hereinafter Legitimacy Debate]; Hiebert, J., Limiting Rights: The Dilemma of Judicial Review (Montreal: McGill University Press, 1996)Google Scholar [hereinafter Limiting Rights]; P. Howe & P. Russell, ed., Judicial Power and Canadian Democracy, supra note 6; Mandredi, C., Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism, 2nd ed. (Don Mills: Oxford University Press, 2001)Google Scholar [hereinafter Paradox of Liberal Constitutionalism]; Monahan, P., Judicial Review and Democracy: A Theory of Judicial Review (Toronto: Legal Theory Workshop Series, University of Toronto, 1985)Google Scholar [hereinafter Theory of Judicial Review]; Roach, K., The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Toronto: Irwin Law, 2001)Google Scholar [hereinafter Supreme Court on Trial]; and Strayer, B., The Canadian Constitution and the Courts: The Function and Scope of Judicial Review (Toronto: Butterworth 1983)Google Scholar [hereinafter Canadian Constitution and the Courts].

10 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.”

In Canadian Constitution and the Courts, supra note 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. 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. See in this regard, amongst others, Limiting Rights, supra note 9, and Paradox of Liberal Constitutionalism, ibid. note 9.

11 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].

12 In Olafson, supra note 8 at para. 14, McLachlin J., in discussing the “sound reasons supporting this judicial reluctance to dramatically recast established rules of law”, notes that “perhaps most importantly, there is the long-standing principle that in a constitutional democracy it is the legislature, as the elected branch of government, which should assume the major responsibility for law reform.” McLachlin J. quotes herself with approval in Winnipeg Child, supra note 7 at para. 18.

13 We can see the ‘unquestionableness’ of the pressing and substantial problem being itself a problem in Winnipeg Child, supra note 7. 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. 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’. 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”, supra note 6 at 70.

Whether or not the anticipated change is incremental or not can also be an issue dividing the Court. 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.”

14 See, for example, the reasons for restraint offered by McLachlin J. in Olafson, supra note 8 at para. 14, Friedmann Equity, supra note 11, and Bow Valley Husky (Bermuda) v. Saint John Shipbuilding [1997] 3 S.C.R. 1210.

15 Winnipeg Child, supra note 7 at para. 104–20. Major J., in dissent, examines the rationale for the ‘born alive’ rule in the common law, restricting legal rights of personhood to fetuses until they are born, and finds it is grounded in outdated medical science. On this basis he is prepared to overturn the rule.

16 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. 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.

17 See texts, supra note 9.

18 See, for example, Canadian Constitution and the Courts, supra note 9.

19 See, for example, Vriend, supra note 13.

20 See, for example, Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130. The Court also discussed the promotion of general democratic values in Vriend, supra note 13 (see in particular the remarks of Sopinka J.)

21 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”.

22 Reference re Secession of Quebec, [1998] 2 S.C.R. 217 [hereinafter Secession of Quebec].

23 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].

24 See texts, supra note 9, and Vriend, supra note 13.

25 Ibid.

26 The Supreme Court presents essentially the same argument in relation to constitutional principles in Secession of Quebec, supra note 22. 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 Rawls, J., A Theory of Justice (Cambridge: Harvard University Press, 1971)Google Scholar, and Freeman, S., ed., Collected Papers (Cambridge: Harvard University Press, 1999)Google Scholar] 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.

27 Vriend, supra note 13, is illustrative, as the attempt by the Alberta legislature to deal with the rights of gay and lesbian Albertans, prior to this decision, was to ignore the issue.

28 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.

29 The opposing right might also be proprietary in nature, depending on the fact situation.

30 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 Leiter, B., “Legal Realism” in Patterson, D., ed., A Companion to Philosophy of Law and Legal Theory (Oxford: Blackwell's Publishers, 1996) 261Google Scholar [hereinafter Companion to Philosophy of Law and Legal Theory]; and texts, supra note 5.

31 See, for example, “Post-Charter Era”, and “We Didn't Volunteer”, supra note 6. At page 68 of “Post-Charter Era” McLachlin J. writes that “[t]rue, judges are unelected, and I believe should remain unelected, having considered the conflicts of interest and related problems an elected-judge system presents. But that does not mean they cannot properly act as referees between conflicting rights and interests and as interpreters of the Constitution and the law.” In Dolphin Delivery, supra note 23 at para. 36, the majority held that “… [w]hile in political science terms it is probably acceptable to treat the courts as one of the three branches of government, that is, legislative, executive and judicial, 1 cannot equate for the purposes of Charter application the order of a court with an element of governmental action. This is not to say that the courts are not bound by the Charter. The courts are, of course, bound by the Charter as they are bound by all law. It is their duty to apply the law, but in doing so they act as neutral arbiters, not as contending parties involved in a dispute”.

32 While much of this language comes from Rawls, see, for example, “The Idea of Public Reason Revisited” in Collected Papers, supra note 26 at 573, and Gaus, G., Justificatory Liberalism: An Essay on Epistemology and Political Theory (New York: Oxford University Press, 1996)Google Scholar [hereinafter Justificatory Liberalism], the process of justification outlined is clearly in the mind of the judiciary.

33 Gaus employs the motif of ‘umpire’ to describe the justifiable role of the courts in a constitutional democracy, see Justificatory Liberalism, supra note 32 at 275–91, but the Supreme Court is also wont to use this expression. See supra note 31.

34 See, for example, Asch, M. and Bell, C., “Challenging Assumptions: The Impact of Precedent in Aboriginal Rights Litigation” in Asch, M., ed., Aboriginal and Treaty Rights in Canada: Essays on Law, Equality and Respect for Difference (Vancouver: University of British Columbia Press, 1997).Google Scholar

35 McNeil, K., Common Law Aboriginal Title (Oxford: Clarendon Press, 1989).Google Scholar

36 Section 33 of the Constitution Act, 1982, supra note 1, (the ‘notwithstanding’ clause) allows legislatures to override constitutionally protected Charter rights, notwithstanding their constitutional status: “Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in Section 2 or Sections 7 to 15 of this Charter”. Kent Roach has argued that this distinguishes the Canadian constitutional structure from that of our American neighbor in a fundamental fashion, protected Canadian society from the sort of radical judicial activism that occasionally galvanizes American society. See Supreme Court on Trial, supra note 9 at 65–67. While this section makes no mention of Section 35 rights, they are still subject to legislative infringement after 1982. This is discussed infra.

37 See, for example, McNeil, K., “How Can Infringements of the Constitutional Rights of Aboriginal Peoples be Justified?”, and “Aboriginal Title as a Constitutionally Protected Property Right” in Emerging Justice, supra note 4, 281 and 292Google Scholar; Borrows, J., “Sovereignty's Alchemy: An Analysis of Delgamuukw” (1999) 37 Osgoode Hall L. J. 537Google Scholar; and Christie, G., “Delgamuukw and the Protection of Aboriginal Land Interests” (2000) 32:1Ottawa L. Rev. 85.Google Scholar The weak protection offered can be seen in the discussion of Aboriginal title in the next section.

38 Sparrow, supra note 3.

39 It should be noted that one reason for this lack of controversy was the restriction of the claimed right to that set out in this brief description of the case. Originally the Sto:lo claimed a right to fish, a right they argued could be exercised at their discretion, for any purpose they saw fit. See Sparrow, supra note 3 at para. 42. At the lower courts, however, the definition of the right was fixed so as to narrow the claim to a right to fish for food and ceremonial purposes.

40 Ibid. at para. 71.

41 Ibid. at para. 71–74.

42 Ibid. at para. 75.

43 Ibid. at para. 76–78.

44 R. v. Van der Peet, [1996] 2 S.C.R. 507 [hereinafter Van der Peet]

45 Ibid. at 548–63, para. 44–74. The ‘integral to the distinctive culture’ test seemingly emerged from a single line in Sparrow, supra note 3 at 1099, paragraph 40. This test has been criticized on a variety of grounds: see, Barsh, R. & [sakej], J.Henderson, Youngblood, “The Supreme Court's Van der Peet Trilogy: Naive Imperialism and Ropes of Sand” (1997) 42 McGill L.J. 993Google Scholar; Borrows, J., “Frozen Rights in Canada: Constitutional Interpretation and the Trickster” (1997) 22 Am. Indian L. Rev. 3.Google Scholar; McNeil, K., “Aboriginal Title and Aboriginal Rights: What's the Connection?” (1997) 36 Alta. L. Rev. 117Google Scholar; Monture-Angus, P., Journeying Forward; Dreaming First Nations' Independence (Halifax: Fernwood 1999)Google Scholar; Rotman, L., “Hunting for Answers in a Strange Kettle of Fish: Unilateralism, Paternalism and Fiduciary Rhetoric in Badger and Van der Peer” (1997) 8:2Constitutional Forum 40Google Scholar; and Zalewski, A., “From Sparrow to Van der Peet: The Evolution of a Definition of Aboriginal Rights” (1997) 55:2U.T. Fac. L. Rev. 435.Google Scholar

46 R. v. Gladstone, [1996] 2 S.C.R. 723 [hereinafter Gladstone]

47 Ibid. at para. 75, 62.

48 Ibid. at para. 66.

49 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 [hereinafter Delgamuukw]

50 Ibid. at para. 161–69.

51 Van der peet, supra note 44 at para. 305.

52 Ibid. at para. 306.

53 Ibid. at para. 306.

54 Constitution Act, 1982, supra note 1, Section 1. This convergence is questioned by McNeil, K. in his “Envisaging Constitutional Space for Aboriginal Governments” (1993) 19 Queen's L. J. 95Google Scholar, reprinted in Emerging Justice, supra note 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?”, see Sparrow, supra note 3 at para. 56.

55 Dworkin, R., A Matter of Principle (Cambridge: Harvard University Press, 1985).Google Scholar

56 Ibid. at 2–3.

57 Not only would the governments of Canada be extremely reluctant to push ahead with the sort of approach to allocating resources mandated in Sparrow when the Aboriginal right claimed is commercial in nature, it might be argued that it could not do so without some guidance on the implications of Section 35 rights in the commercial realm. This is precisely what Gladstone provides.

58 Van der Peet, supra note 44 at para. 27–43.

59 Ibid. at para. 30–31.

60 Sparrow, supra note 3 at para. 62: “Federal legislative powers continue, including, of course, the right to legislate with respect to Indians pursuant to s. 91(24) of the Constitution Act, 1867. These powers must, however, now be read together with s. 35(1). In other words, federal power must be reconciled with federal duty and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies [A]boriginal rights.”

61 In Gladstone, supra note 46 at para. 67, the Court recognized the common law right of the public to fish in tidal waters, and found even the constitutional protection of an Aboriginal right could not have been meant to extinguish this long-standing public right. This distinction between the claimed rights in Sparrow and Gladstone was that spelled out by the Court in the language of rights having or lacking internal limitations.

62 Van der Peet, supra note 44 at para. 313.

63 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.

64 “Envisaging Constitutional Space”, supra note 54.

65 Manitoba Language Rights, supra note 10.

66 “Envisaging Constitutional Space”, supra note 54 at 204–205.

67 The legal vacuum argument might also explain events surrounding the finding of a treaty right to gather necessaries for trading purposes in Marshall, supra note 63. 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.

68 See above.

69 See texts, supra note 9, and Secession of Quebec, supra note 22.

70 Van der Peet, supra note 44 at para. 305–306.

71 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, supra note 3 at 1105, paragraph 53: “Section 35(1), at the least, provides a solid constitutional base upon which subsequent negotiations can take place”, and, Delgamuukw, supra note 45 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 … ‘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.

72 Delgamuukw, supra note 48 at para. 117–32, 160–69.

73 See, for example, Hogg, P. & Bushell, A., “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. 75Google Scholar; Manfredi, C. & Kelly, J., “Six Degrees of Dialogue: A Reply to Hogg and Bushell” (1999) 37 Osgoode Hall L.J. 513Google Scholar; Hogg, P. & Thornton, A., “Reply to ‘Six Degrees of Dialogue’” (1999) 37 Osgoode Hall L.J. 529Google Scholar; F. L. Morton, “Dialogue or Monologue?” in Judicial Power and Canadian Democracy, supra note 6; Supreme Court on Trial, supra note 9. 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.

74 Van der Peet, supra note 44.

75 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 Wellman, V., “Authority of Law” in Companion to Philosophy of Law and Legal Theory, supra note 30 at 580.Google Scholar 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.” Ibid., at 581. Given that Aboriginal peoples in Canada were not conquered, this point is enhanced.

76 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, Coates, K., The Marshall Decision and Native Rights (Montreal-Kingston: McGill-Queen's University Press, 2000).Google Scholar

77 There is some irony to this, as the threat of disorder and chaos the imposition of the rule of law is meant to counter is the result of nothing less than attempts by the Canadian state to impose law on peoples not clearly drawn under an agreement structuring Canadian society.

78 See, for example, Kymlicka, W., Multicultural Citizenship (Oxford: Oxford University Press, 1995).Google Scholar 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 Macklem, P., Indigenous Difference and the Constitution of Canada (Toronto: University of Toronto Press, 2001) at 60–61, 73.Google Scholar

79 Worcester v. Georgia (1832) 32 U.S. (6 Pet.) 515, Cherokee Nation v. Georgia (1831) 30 U.S. (5 Pet.) 1, Johnson and Graham's Lessee v. William M'Intosh (1823) 21 U.S. (8 Wheat.) 543.

80 See, for example, Mitchell v. M.N.R., [2001]1 S.C.R. 911.

81 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, Reaume, D., “Official-Language Rights: Intrinsic Value and the Protection of Difference” in Kymlicka, W. and Norman, W., ed., Citizenship in Diverse Societies (Oxford: Oxford University, 2000) 245.CrossRefGoogle Scholar

82 As an example, see Alfred's, Taiaiake discussion of the traditions of his community in Peace, Power, Righteousness: An Indigenous Manifesto (Oxford: Oxford University Press, 1999) at 20–23.Google Scholar

83 Mary Ellen Turpel makes a similar point in relation to the law and its treatment of the cultural divide she describes in “Aboriginal Peoples and the Canadian Charter: Interpretative Monopolies, Cultural Differences” (1989–90) 6 Cdn. Human Rights Yearbook 3.

84 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, Gray, J., Post-Liberalism: Studies in Political Thought (New York: Routledge, 1993) at 21.Google Scholar Faced with separate and distinct systems of living based on different orderings of value and different senses of ‘liberty’. See, for example, Alfred, supra note 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.

85 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) 8:1Queen's L. J. 232 at 251–53.Google Scholar