First Nations self-government and the borders of the Canadian legal imagination.
L'autonomie gouvernementale est aujourd'hui un des principaux objectifs des peuples autochtones au Canada. Ce desir de controler leurs destins collectifs et individuels est confronte a l'etat actuel du droit canadien. En effet, l'imposition de concepts juridiques anglocanadiens lors de l'analyse de la propriete des terres ancestrales, des traites, du partage des competences legislatives sur les autochtones, et dans l'interpretation judiciaire de l'article 35(1) de la Loi constitutionnelle de 1982, demontre une resistance soutenue aux aspirations autochtones. Le droit se justifie par le biais d'une rhetorique qui, selon le cas, distingue ou assimile les autochtones aux personnes non-autochtones. Ce meme systeme etablit et perpetue une relation hierarchique de dependance entre les autochtones et l'Etat canadien. Chaque domaine du droit relatif aux autochtones contient pourtant les elements d'une reforme qui pourraient servir au developpement de l'autonomie gouvernementale des autochtones. L'auteur suggere qu'une remise en question des notions anglocanadiennes de propriete, de contrat, de souverainete et de droits constitutionnels s'impose afin que le droit soit en mesure de satisfaire les demandes legitimes des autochtones et ainsi leur permettre de participer activement au developpements legislatifs qui affectent directement leurs vies.
Synopsis Introduction I. The Thesis Described II. The Common Law of Aboriginal Title A. The Marshall Legacy B. The Canadian Framework C. Recent Developments D. Summary: The Myth of Crown Title III. The Distribution of Legislative Authority A. Federal Jurisdiction B. Provincial Jurisdiction C. Summary: Challenging Legislative Supremacy IV. Treaty Rights and Treaty Interpretation A. Treaties and Native Inferiority B. The Contractualist Vision C. Recent Developments D. Summary: Revising Treaty Jurisprudence V. Aboriginal Rights and the Constitution Act, 1982 A. R. v. Sparrow B. Constitutional Recognition of Self-Government Conclusion
The Canadian legal system has come under increasing attack in recent years for failing to accommodate the interests and needs of Canada's First Nations. (1) Allegations of insensitivity, injustice, discrimination and racism have rocked virtually all areas of the legal system affecting native people. The criminal justice system, land claims, international law, and the process for constitutional reform are but a few areas in which it is alleged that the concerns facing native people are ignored by the relevant authorities. Criminal justice inquiries dot the country, with subjects as diverse as the investigation of the wrongful conviction of Donald Marshall for a murder he did not commit, (2) the twenty-year silence surrounding the sexual assault and murder of Helen Betty Osborne, (3) and the shooting death of First Nations activist J.J. Harper by a Winnipeg police officer. (4) Be it by the Lubicons in Alberta, (5) the Teme-Augama Anishnabai in Ontario, (6) or the Mohawks in Quebec, (7) an illegal blockade protecting ancestral lands from economic development by nonnatives is virtually a daily occurrence. On the international front, developments are equally grim. In 1989, Canada came under the investigative scrutiny of the United Nations as a potential violator of international law for its failure to develop appropriate policies for the administration of treaties entered into with First Nations. (8) More recently, historical inequities suffered by native people in Canada have been held to constitute violations of the International Covenant on Civil and Political Rights. (9) Even in the area of constitutional reform, where native people had been successful in directing an about-face in federal policy away from the Trudeau government's proposal to abolish the Indian Act (10) and strip First Nations of any special status under Canadian law (11) to the entrenchment of constitutional guarantees in 1982 protecting "existing aboriginal and treaty rights," (12) native people have felt the brunt of exclusion. After 1982, native people saw a string of constitutional defeats. After four constitutional conferences addressing the possibility of entrenching a constitutional right of self-government ended in failure, (13) the federal and provincial governments negotiated the Meech Lake Accord which represented, in one author's words, "another nail in the coffin." (14) The Accord's demise potentially signals a prolonged period of inactivity with respect to further constitutional negotiations involving Canada's First Nations.
And then there are the statistics. Native male life expectancy hovers between 60 and 62 years and native female life expectancy between 63 and 69 years, compared to a life expectancy in the Canadian population for men of 72 years and for women of 79 years. (15) The major causes of death for natives are accidents, poisoning and violence. Deaths resulting from these causes in 1983 occurred three times the rate for Canadians as a whole. (16) Incarceration rates show a similar pattern. Native people constitute 10% of the population of federal prisons, yet they account for approximately 3% of the Canadian population. (17) Native women account for 20% of the female inmate population of British Columbia. (18) The number of native people in federal prisons doubled between 1977 and 1987. (19) Housing standards and unemployment rates are equally disturbing. According to a 1985 study by the Department of Indian and Northern Affairs, 47% of on-reserve housing fails to meet basic standards of physical conditions, and 38% of reserve housing lacks basic amenities such as running water, indoor toilets and/or a bath or shower. (20) According to the 1981 census, the official unemployment rate among natives is two and a half times the national rate. (21) Though there have been major gains in the area, levels of education do not fare well either. In 1981, only 19% of the native out-of-school population had attained some form of post-secondary education, compared to 36% of the Canadian population as a whole. Two out of three status Indians use English as their home language and numerous native languages are on the edge of extinction. (22)
This article explores how the law has contributed to the current status of First Nations in Canada. It attempts to map out the way the law has treated the native aspiration for self-government in the past and to suggest ways that the law might facilitate its realization in the future. My starting point is fairly uncontroversial: that the law has been stubbornly resistant of claims to self-government by native people. Though a more precise definition is advanced in Part I, by "self-government" I do not mean to refer to any technical legal term but instead to a set of aspirations connected with the desire of native people to have control over the ability to define their own individual and collective identities. (23) What interests me is not so much the fact of resistance but rather the way in which the law resists native claims of self-government. The thesis, simply put, is that the law governing native peoples in this country resists the aspiration to self-government by the way in which it structures and makes sense of native reality. I address four relevant areas of legal discourse: common law aboriginal title, the distribution of legislative power over native people, the law relating to treaty formation and interpretation, and jurisprudence under s. 35(1) of the Constitution Act, 1982. Each area serves as a frame of reference through which the law structures and makes sense of legal disputes involving native people. Inherent in each is a resistance to the idea that native people ought to have more control over their individual and collective destinies. Despite this resistance, however, each frame of reference contains moments of transformative possibility which, if taken from the margins of legal discourse and placed at the centre of the law governing native people, could assist in the realization of First Nations self-government.
The article is divided into five Parts. Part I describes the thesis in more depth, and discusses the extent to which the law can serve as a vehicle for the realization of self-government for Canada's First Nations. Part II addresses the common law of aboriginal title. Part III reviews the law governing the distribution of legislative authority between Parliament and provincial legislatures as it relates to native people. Part IV is an account of the law governing treaties entered into by native people and the Crown. Part V assesses recent jurisprudence under the Constitution Act, 1982. Parts II to V share a similar organization. Each begins with a general overview of the set of principles relevant to the area of the law under study. Each then provides a more detailed account of those principles and their historical development to demonstrate their resistance to the aspiration of native self-government and to expose ways of understanding central to the Canadian legal imagination that must be challenged if self-government is to become a reality. Each also attempts to identify doctrinal traces of possibility within each frame of reference that can serve to facilitate the realization of self-government and assist in the empowerment of Canada's First Nations.
I. The Thesis Described
During the last several years, self-government has emerged as a major policy objective for Canada's First Nations. Self-government, broadly speaking, refers to the desire of native people to have control over the ability to define their own individual and collective identities. Yet beyond this level of generality, self-government is not a term that carries with it a shared, determinate meaning. One scholar recently lamented the fact that self-government "remains essentially at the level of a 'value notion'." (24) Various parties import into the notion of self-government competing and contradictory meanings, with sharp differences emerging the more one moves from abstract definition to concrete proposal. Often self-government is referred to as a component of aboriginal rights, as evidenced by the following testimony by John Amagalik, co-chairperson of the Inuit Committee on National Issues:
Our position is that aboriginal rights, aboriginal title to land, water and sea ice flows from aboriginal rights and all rights to practise our customs and traditions, to retain and develop our languages and cultures, and the rights to self-government, all these things flow from the fact that we have aboriginal rights. (25)
On other occasions, self-government is seen as interchangeable with notions of aboriginal rights, as illustrated by the following statement of Clem Chartier of the Metis National Council:
What we feel is that aboriginal title or aboriginal right, is the right to collective ownership of land, water, resources, both renewable and nonrenewable. It is a right to self-government, a right to govern yourselves with your own institutions, whichever way you want your institutions to run; the right to language, to culture, the right to basically practice your own religion and customs, the right to hunt, trap and fish and gather are certainly part of that, but that is not all of it. (26)
When one begins to reflect on the ways in which the above aspiration can be translated into institutional arrangements carrying with them the force of law, the potential for disagreement over the meaning of the term becomes even greater. A number of institutionalizing techniques present themselves; each carries with it a range of potential outcomes that can be characterized in loose terms as embodying a commitment to native self-government. The aspiration of native people to have more control over their individual or collective identities can take the legal form of property entitlements, contractual entitlements, treaty entitlements, statutory entitlements, delegated jurisdictional entitlements, constitutional entitlements and international law entitlements. (27) Within each different type of entitlement, a spectrum of reform possibilities presents itself. The politics of native self-government in part involves disputes over not only what the aspiration for more individual and collective control by natives over their destiny means, but also how it is to be translated into institutional reality.
A workable definition of self-government that avoids the emptiness of generality without descending into the politics of specifics, however, is that native self-government at least refers to the need for a territorial base on native land, some forms of administrative and political structures and institutions for the airing of native voices and political decisionmaking, the transfer of jurisdictional responsibilities from Parliament to native people, the ability of native people to organize their societies and pass laws governing their lives free from federal or provincial interference, and access to sufficient fiscal resources to meet these responsibilities. (28) Translating the loose aspiration of native people to have more control over their individual and collective identities into the above mentioned institutional criteria does not avoid some difficult problems associated with the implementation of self-government, such as the extent to which institutions of self-government ought to include urban native populations. (29) Nor does it address the extent to which self-government conflicts with, in Alan Cairns' words, "ongoing aboriginal participation as holders of rights and bearers of duties in Canadian society." (30) Defining self-government in the above way, however, does have the advantage of remaining relatively abstract so as to invite little disagreement, yet sufficiently specific to permit analysis of its reception in the legal forum. Any greater degree of specificity would run counter to the aim of creating legal spaces in which native people themselves can define the contours of the institutions which will govern their lives. (31)
In this article I advance the view that the law can and ought to serve as a vehicle for the realization of self-government for Canada's First Nations. The law currently exhibits a structural resistance to the aspiration of native self government, however, despite recent jurisprudence sympathetic to the needs and interests of native peoples. My hope is that by locating the precise places in which resistance to self-government manifests itself in the Canadian legal imagination, it will become possible to ascertain the ways the law can transform itself so as to become an instrument of native empowerment.
The dominant method of making sense of and resolving native claims employed by the judiciary is to first sort out the type of dispute in question. Does this case involve the common law of aboriginal title? Does it involve questions relating to the interpretation of a treaty? Does this dispute raise questions about the distribution of legislative authority or involve s. 35(1) of the Constitution Act, 1982? Perhaps it deals with some combination of these frames of reference. Whatever the particular configuration presented by the facts, each doctrinal area of the law contains a particular set of legal principles that guides judicial decisionmakers in the determination of disputes involving native people. The law relating to common law aboriginal title, for example, contains a set of principles governing the nature and extent of native interests in traditional and reserve lands. Similarly, the law of federalism governing the distribution of legislative authority over matters pertaining to native people involves a series of principles which guide the judiciary in determining whether a legislature is within its constitutional sphere of authority. Though each set of legal principles is specific to the broader doctrinal area to which it belongs, they share three attributes which contribute to and constitute the law's resistance to First Nations self-government.
First, each set of principles represents an extension and application of basic Anglo-Canadian categories of legal understanding to the native context. A central tenet of Anglo-Canadian notions of property ownership, for example, is that the Crown has underlying title to all of Canada. Transfers of title are viewed through contractualist lenses. Contracting parties are viewed as entities abstracted from the particularity of circumstance. Exchanges are viewed as solemn, binding agreements, enforceable in a court of law. Legislatures are viewed as sovereign and supreme within their spheres of authority, and entitled to regulate the exercise of property ownership and contractual relationships in the name of the common good, except insofar as such regulation infringes upon an identifiable core of human freedom protected by constitutional guarantee. Disputes involving native people invariably are resolved against the backdrop of one or more of the above assumptions concerning the nature of property, contract, sovereignty, and constitutional right. Native self-government is conceptually and actually excluded from the spectrum of law's possibilities by the unquestioned acceptance of these four cornerstones of the legal imagination. Ultimately supporting the classificatory structure of the law brought to bear to make sense of disputes involving native people are a series of unquestioned ways of conceptualizing and resolving legal disputes which work to resist aspirations of native self-government.
Second, each doctrinal area effects the extension and application of the above-mentioned categories of legal understanding to the native context by a rhetoric of justification that appeals to a vision of native people as simultaneously different than and similar to nonnative people. (32) Native difference is denied where its acceptance would result in the questioning of basic premises concerning the nature of property, contract, sovereignty or constitutional right. Native difference is acknowledged where its denial would achieve a similar result. The rhetoric of justification supporting the principles that govern the nature and extent of native interests in traditional and reserve lands at common law, for example, involves a complex interweaving of denial and acceptance of native difference. The distribution of legislative authority between Parliament and provincial legislatures over matters affecting native people is effected through a process of judicial interpretation that requires determining the extent to which native people are similar to and different than normative people. The law governing the legal status and legal effect of treaties entered into by native people with the Crown is permeated by acknowledgement and denial of native difference. Though still in embryonic form, constitutional jurisprudence surrounding s. 35(1) of the Constitution Act, 1982, which recognizes and affirms "existing aboriginal and treaty rights of the aboriginal peoples of Canada," (33) implicitly rests on a vision of native people as simultaneously similar to and different than nonnative people. Similarity and difference constitute the currency of justification for the invocation and application of traditional categories of legal understanding in the resolution of legal disputes involving native people.
Third, each set of principles can be characterized as establishing and maintaining a hierarchical relationship between native people and the Canadian state. Treaty jurisprudence, for example, establishes a legal relationship of dependence by native people on the sovereign authority of the Canadian state. Jurisprudence under s. 35(1) of the Constitution Act, 1982 implicitly acknowledges a relationship of hierarchy between native peoples and the Canadian state. The common law of aboriginal title and the principles governing federalism disputes evince a similar pattern. Each frame of reference brought to bear in legal disputes involving native people, in other words, is constituted by a series of doctrinal choices that perpetuate a hierarchical relationship between native people and the Canadian state by relying on the idea that native people are both similar to and different than nonnative people. The doctrinal choices that constitute each frame of reference have historically worked to exclude native self-government as one of the law's possibilities.
Despite the law's historic resistance to the aspiration of self-government by Canada's First Nations, it would be a mistake to engage in a blanket condemnation of the legal system as it relates to disputes involving native people. Each frame of reference invoked by the law to make sense of and structure native reality contains moments of possibility for the realization of native self-government. Although currently on the borders of the legal imagination, these moments represent opportunities for expanding and transforming the law so that it can serve as an instrument of native empowerment. That the legal forum is a useful site for engaging in the politics of self-government is also borne out by the fact that the legal forum is regarded by many to be more of an ally than an obstacle in the quest for a greater degree of individual and collective native autonomy. The Meech Lake Accord, for example, was seen by many native people as detrimental to native interests for a number of reasons, including the fact that it would have given institutions which native people fear, provincial governments, a greater say in the constitution of an institution which native people trust, the Supreme Court of Canada. (34) The Accord's demise will no doubt complicate, if not stall, constitutional negotiations between First Nations and Canadian politicians in the near future, providing even more justification for a jurisprudence of reform.
More generally, it is fair to claim that native people have made far more strides in their dealings with normative people in the legal sphere than in the political sphere, with legal decisions often serving to initiate political and constitutional change. In Guerin v. R., (35) for example, the Supreme Court of Canada created a new form of legal accountability on the part of the Crown in its dealings with native land. Guerin and cases like it have served to spur political and legal reform, pushing federal and provincial governments to reconceive their duties and obligations to native peoples. It may well be the case that current jurisprudence is inadequate to the task of reconstructing native self-government; indeed, I hope to demonstrate this fact in the course of this article. Yet, to reduce the role of law to that of villain in the saga of the struggle for native self-government has the effect of ignoring the important moments, however few, in which the law has served to improve the lives of native people and forecloses a powerful source of potential social transformation.
A related reason to be cautious of blanket condemnations of the legal system as it relates to construction and reproduction of native reality is the fact that to reduce law to a purely negative, obstructionist role paints a distorted picture of the history and content of native peoples law and, more importantly, runs the risk of attributing a type of essentialism to law's possibilities, which in turn places disabling constraints on the legal imagination. One of the great achievements of post-realist legal scholarship (36) has been the ability to successfully discard the view that there is an ahistorical, apolitical essence to law which in turn preordains the correctness of legal decision-making, and instead to conceive of law as a set of practices that constitutes economic, social and political relations among individuals and groups in society which is itself open to transformation. (37) According to this view, there is nothing preordained about the trajectory of legal doctrine. Indeterminacy is a cause for hope, not despair. The fact that we do not know "what will come next" means that what will come next is a function of political and ethical commitment. (38) Should law fail to improve the condition of native peoples in Canada, it will not be a function of the immanent rationality of law, the inherent logic of the legal form, or the necessary relation between law and the economic base, but rather a simple failure to act. Responsibility for the perpetuation of current conditions of native peoples will lie on those in power to effect legal change as well as those who advocate the view that legal change is impossible.
The thesis, then, is that the law governing native people in Canada is resistant to claims to self-government because of the unquestioned adherence to basic categories of the Anglo-Canadian legal imagination effected by the denial and acceptance of native difference. The result is a set of principles which work to establish and maintain a hierarchical relationship between native peoples and the Canadian state. Each frame of reference, however, contains doctrinal possibilities for the realization of self-government. The purpose of this article is to take these moments of possibility from the borders of the legal imagination and place native self-government at the centre of the law governing Canada's First Nations. This is not to deny that similarities and differences exist between native and normative peoples, but rather to challenge the use to which similarity and difference has been put by the law. That is, my claim is not that the legal assertion and denial of difference is somehow illegitimate or contradictory, but rather to challenge the idea that similarity and difference support a relationship of dependence between native peoples and the Canadian state. The legal assertion and denial of difference in each frame of reference has operated on behalf of domination. (39) The objective is to challenge what the law has traditionally imagined to be the implication flowing from native similarity and difference, and to posit another, one which embraces native participation in the definition of native difference and native consent to the laws that govern their lives.
Yet if the law is to play a facilitative role in the quest for self-government by First Nations, basic categories of the Anglo-Canadian legal imagination must be rethought and adapted so that the law does not perpetuate the continued imposition of Anglo-Canadian norms and values onto native reality. The achievement of self-government for First Nations through legal reform ultimately will require legal reformation, namely, a remaking of the conceptual map by which the law structures and makes sense of native reality. Native interests and needs cannot be accommodated within current categories of legal understanding, as the necessary changes require more than the simple embrace of those interests and needs into already existing and accepted ways of understanding the world. The law must construct spaces in which native self-government can take root and flourish, and legal principles within each frame of reference must be restructured so as to permit native participation in the formation of rules that govern their lives. Traditional notions of property, contract, legislative supremacy, and constitutional right must be questioned and reconceptualized so as to reshape the law's relation to native people and to permit Canada's First Nations to devise institutional arrangements that conform to and celebrate native forms of life. Current ways of knowing are not so much part of the solution as part of the problem, and reform requires the creation of new ways of legal understanding that embrace native difference.
II. The Common Law of Aboriginal Title
There are several schools of thought on when the ancestors of Canada's native peoples began to populate North America. Anthropological estimates on the beginning of a human presence on the continent vary from 12,000 to 30,000 years ago. (40) Regardless of the precise date, native people in this country have developed unique and special relationships to the land in part derived from their descent from the continent's original first peoples. Fred Plain of the Nishnabwe-Aski nation, for example, states the following:
Our links with the earth are sacred links that no man can ever sever. We are one with the earth, and the earth is one with us.... [W]e have the right to govern and control our own people in our own land, and the right to remedy our own situations. The efforts that are made to meet our needs must come from our own people. (41)
Similarly, Leroy Little Bear writes of native conceptions of ownership:
Indian ownership of property, like Indians' way of relating to the world, is holistic. Land is communally owned; ownership rests not in any one individual, but rather belongs to the tribe as a whole, as an entity. The members of a tribe have an undivided interest in the land; everybody, as a whole, owns the whole. Furthermore, the land belongs not only to people presently living, but also to past generations and future generations, who are considered to be as much a part of the tribal entity as the present generation. In addition, the land belongs not only to human beings, but also to other living things (the plants and animals and sometimes even the rocks); they, too, have an interest. (42)
Whatever the precise nature of the native relationship to land, which presumably varies from peoples to peoples, the way in which the law regulates native interests in land is critical to the realization or frustration of self-government. If the common law of property were to reflect the fact that native peoples were the first nations of Canada, protect native interests in land from nonnative interference, permit the establishment of a territorial base from which native self-government could flourish and grow, and facilitate the meaningful expression of the diverse ways in which native peoples relate to their land, the law conceivably could assist in giving native people more control over their ability to shape their destiny.
Current law on the nature and extent of the native interest in ancestral and reserve lands, however, represses the fact that native people were the original inhabitants of the continent. Jurisprudence on native proprietary interests is not formulated with an eye to institutionalizing the special relationships native people have with respect to ancestral and reserve land. Instead, the common law of aboriginal title, constructed by an appeal to a vision of native people as both similar to and different than nonnative people, assumes that the Crown possesses underlying title to all of Canada and carves out a property interest unique to native people that places native people in a position of dependence in relation to the Crown. The native property interest at common law in reserve lands and lands not surrendered to the Crown has been characterized as a right of occupation or possession, despite the fact that native people were the original inhabitants of Canadian soil. Should native authorities decide to surrender or transfer their interest in the land, a transfer to a nonnative person cannot occur without a prior surrender to the Crown. Upon surrender, the Crown is under a fiduciary obligation to deal with the land for the benefit of those who engaged in the act of surrender. Absent surrender, the Crown remains free to extinguish the native interest. Thus the common law establishes and maintains a dependent relationship between native people and the Crown with respect to native land. All land transfers must occur through the Crown, and native people hold their lands at the mercy of the Crown. As will be seen, reform efforts which do not question the hierarchical relationship built into the structure of the native proprietary interest are bound to reproduce native dependency in a new form.
A. The Marshall Legacy
Contemporary jurisprudence on aboriginal title at common law owes its existence in part to the strength and power of three judgments authored by Chief Justice Marshall in the United States in the first half of the nineteenth century. (43) Culminating with Worcester v. Georgia (44) in 1832, this line of cases provided inspiration for Canadian conceptions of common law aboriginal title. The Marshall legacy also provides traces of an alternative vision of the common law of aboriginal title which, if embraced by the judiciary, would facilitate rather than frustrate the realization of native self-government.
In Fletcher v. Peck, (45) at issue was the validity of a Georgia statute revoking a prior statutory land grant to the New England Mississippi Land Company. Upon its receipt, the company's director, John Peck, divided and resold the land to various individuals, including Robert Fletcher. Invoking specific provisions of the Constitution of the United States and "general principles which are common to our free institutions," Marshall C.J. struck down the repealing statute in the name of freedom of contract. (46) Since the land had never been surrendered by Indian bands to the United States government or the state of Georgia before the legislature made it the subject of a grant, Marshall C.J. went on to discuss the nature of the Indian interest in the land. Referring to what he termed "Indian title," Marshall C.J. held that the native interest in land was to be a title of occupancy only. Though "certainly to be respected by all courts," Marshall C.J. added that such an interest could be "legitimately extinguished" and that it "is not such as to be absolutely repugnant to seisin in fee on the part of the state." (47) Justice Johnson wrote a vigourous dissent in which he argued that native peoples in North America retained "absolute proprietorship of their soil" which could be extinguished only by conquest or purchase. (48)
The second case of the trilogy, Johnson v. M'Intosh, (49) provided Marshall C.J. with an opportunity to offer justifications for his conclusion in Fletcher v. Peck that the native interest in land is one of occupancy only with fee simple title vesting in the state. Johnson is a useful example of how an appeal to a vision of native people as simultaneously different than and similar to nonnative people can work to avoid questioning the legitimacy of basic categories of the legal imagination and maintain a hierarchical relation between native people and the state. Johnson is also immediately relevant to Canadian jurisprudence for it contains many of the arguments traditionally used to support common law treatment of native people in Canada. In Johnson, international law and the concept of Crown prerogative were relied upon to support the conclusion that underlying title vests with the state, the native interest in land being one of occupancy only. In his reliance on international law principles, Marshall C.J. emphasized difference, whereas in his reliance on the Crown prerogative, he emphasized similarity. Out of this interplay between similarity and difference emerged a set of legal categories true to traditional ways of legal understanding and resistant to the aspiration of native self-government.
In Johnson, the appellant claimed title to certain lands by virtue of a devise from his father, who had obtained the land from the Piankeshaw and Illinois nations. The federal government also claimed title to the land on the basis of grants made to it by the same Indian nations after they purported to make the grants to Johnson's father. Marshall C.J. found for the federal authorities, holding that the federal government had the exclusive right to acquire Indian title.
In support of this conclusion, Marshall first argued that the "doctrine of discovery" gave the British Crown, and hence the federal government, an exclusive right to acquire Indian land. The doctrine of discovery was a principle of international law developed during the period of colonial expansion to address and reconcile competing claims over territory by European nations. The doctrine provided that the discoverer of unoccupied land (or terra nullius) enjoyed territorial sovereignty (50) over such land as against subsequent arrivals. (51) With respect to occupied land, sovereignty could only be acquired by the "discovering" nation by conquest or cession. (52) Since much of North America was inhabited by indigenous populations prior to European settlement, one would have thought that territorial sovereignty over the continent or parts thereof could only be acquired by conquest or cession. Yet international law provided that land was unoccupied and hence "discoverable," despite the presence of an indigenous population, if that population did not possess a certain degree of political organization. (53) In Johnson, Chief Justice Marshall was of the view, widely shared at the time, (54) that discovery of North America vested territorial sovereignty over such land in the discovering nation despite the existence of indigenous populations. He noted that from their inception American states adopted the view that "discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest; and gave also a right to such a degree of sovereignty, as the circumstances of the people would allow them to exercise." (55) Prior to the American Revolution, those rights vested in the Crown and its representatives in the colonies; after the American Revolution, territorial sovereignty vested "in that government which might constitutionally exercise it." (56)
Marshall C.J. noted that the European justification for the assertion of territorial sovereignty in the face of an indigenous population rested on the view that native North Americans were "heathens." (57) In his words,
the character and religion of [North America's] inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendancy. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence. (58)
Marshall C.J. did not embrace a sectarian justification of the doctrine of discovery, though he did attempt to support its invocation by reference to "the character and habits of the people whose rights have been wrested from them." (59) In his view, it was impossible to apply the laws of conquest to address proprietary claims of indigenous populations. Traditional principles governing the conquest of territory provide that property entitlements in existence prior to conquest continue to exist in the absence of legislative expropriation; if applied to govern relations between native and normative people, these principles would support the view that the "conquest" of North America did not in itself alter pre existing patterns of land holdings. (60) In rejecting this line of reasoning, Marshall C.J. stated the following:
[T]he tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness; to govern them as a distinct people, was impossible, because they were as brave and as high spirited as they were fierce, and were ready to repel by arms every attempt on their independence. (61)
In light of this difference between native people and other conquered peoples, "[the] law which regulates ... the relations between the conqueror and conquered, was incapable of application." (62) In its place, Marshall C.J. invoked the doctrine of discovery, arguing that,
if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned. (63)
As a result, the discovering nation was exclusively entitled to assert territorial sovereignty over the indigenous population and to acquire rights in the land from that population in accordance with domestic laws governing land transfers. In Marshall C.J.'s own words, "[t]he exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it." (64) Thus the doctrine of discovery established a priority among European nations as to acquisition of native land. It was but a short leap to conclude that discovery therefore affected the power of native people "to dispose of the soil at their own will, to whomsoever they pleased." (65)
The interplay of native difference and similarity underpinning the assertion of sovereignty over native people will be assessed in Part III of this article. (66) What is of present concern is the distinction between territorial sovereignty and title to land. For it was one thing to recognize that the doctrine of discovery entitles the discovering nation to assert sovereignty over native people and an exclusive right to acquire native land from native people as against other European nations and that this right of acquisition affects the freedom of native people to alienate their lands to third parties. It was another to conclude that discovery actually vests underlying title to land in the discoverer as against the original inhabitants of the land. Adhering to the former entails only that the sovereign power is authorized to obtain ownership of the land over which sovereignty is asserted in accordance with its domestic laws governing title to land and ownership of real property. Although his judgment occasionally appears to acknowledge the difference between territorial sovereignty and title to land, (67) Marshall C.J. unfortunately blurred the distinction (68) in his enlistment of the royal prerogative as further support for his conclusion that the federal government had valid title to the land in question. He referred to "the theory of the British constitution," which, in his words, provides that "all vacant lands are vested in the crown, as representing the nation; and the exclusive power to grant them is admitted to reside in the crown, as a branch of the royal prerogative." (69) English constitutional theory, according to Marshall C.J., made "no distinction ... between vacant lands and lands occupied by Indians;" (70) title to both was vested in the Crown. Since title to land vested in the Crown, it could not vest with the indigenous populations: "[a]n absolute title to lands cannot exist, at the same time, in different persons, or in different governments." (71) In Marshall's view, since title to vacant land and lands occupied by native peoples vests with the Crown, the Crown is entitled to grant such lands to third parties. Marshall C.J. was thus able to characterize the Indian interest in land as "a right of occupancy," subject to the absolute power of the Crown to extinguish that right. (72)
Johnson thus built on Marshall C.J.'s preliminary description in Fletcher v. Peck of the native interest in land to be a right of occupancy. In Johnson, Marshall C.J. held that the combined effect of the doctrine of discovery and the Crown prerogative was to confer on the discovering nation not only territorial sovereignty but also title to land. With respect to the doctrine of discovery, native difference was relied on to support the conclusion that title to land vested with the discovering nation, insofar as native difference made the application of the law of conquest--which would have resulted in the continuation of preexisting property entitlements--impossible. Yet with respect to the Crown prerogative, native difference was ignored to support the same conclusion. Marshall C.J. was unwilling to acknowledge any difference between native people and normative people which might justify special treatment with respect to the Crown prerogative. Invoking the royal prerogative to support the conclusion that the Crown possesses title to native land treats native people as if they were British subjects, and ignores the fact that native people were original inhabitants of the land in question and that such land was not in fact vacant. Marshall C.J., in other words, simultaneously denied and accepted native difference to support the assertion of Crown title to native lands.
In the third case of the trilogy, Worcester v. Georgia, (73) Marshall C.J. retreated from his earlier view that discovery vests underlying title to native lands in the state, preferring instead the more cautious view that discovery only creates an exclusive right to acquire native lands as against other nations. In Worcester, at issue was the validity of a notorious set of Georgia statutes, which sought to assume jurisdiction over the Cherokee Nation by annexing Cherokee lands, thereby violating federal treaties entered into with the Cherokee and annulling the Cherokee constitution and laws. One statute required white persons to obtain permission of the state before entering Cherokee territory. Samuel Worcester, a missionary from Vermont, was arrested for failing to obtain state authorization. Worcester challenged the Georgia statute on the basis that it was contrary to the U.S. Constitution and treaties and laws of the federal government. In his reasons for judgment, Marshall C.J. recanted the view that discovery yields title, stating that "[i]t is difficult to comprehend ... that the discovery ... should give the discoverer rights in the country discovered, which annulled the pre-existing rights of its ancient possessors." (74) Instead, discovery yields only the exclusive right to acquire title. This restatement of the effect of discovery led Marshall C.J. to a more subdued interpretation of the Royal Proclamation of 1763, (75) which he had interpreted in Johnson to be an assertion of title as against native people rendered lawful by principles of Crown prerogative. In Worcester, Marshall C.J. instead viewed the Royal Proclamation as asserting a title against Europeans only and reserving the right to acquire land from native people solely to the Crown. Speaking more generally of the protection offered by the Crown to native nations, Marshall C.J. stated:
The Indians perceived in this protection only what was beneficial to themselves--an engagement to punish aggressions on them. It involved, practically, no claim to their lands, no dominion over their persons. It merely bound the nation to the British crown, as a dependent ally, claiming the protection of a powerful friend and neighbour, and receiving the advantages of that protection, without involving a surrender of their national character. (76)
Marshall C.J. went on to hold that "[t]he Indian nations ha[ve] always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil." (77) Thus, when the Crown transferred to the colony of Georgia the rights and powers it possessed in relation to Cherokee land, "the crown could not be understood to grant what the crown did not affect to claim; nor was it so understood." (78) Furthermore, jurisdiction over the Cherokee was transferred to the federal government upon confederation of the American states. In Marshall C.J.'s view, state laws such as the Georgia statute in question could not apply within Indian territory at all. (79)
Worcester represents the capstone judgment in a bold vision of aboriginal title not only because Marshall C.J. was prepared to acknowledge the political independence of the Cherokee nation from state law, but also because he laid down general principles governing the jurisdiction of the federal government. According to Marshall C.J., the relationship between the Cherokee nation and the federal government was one of association, with the right of self-government intact:
The settled doctrine of the law of nations is, that a weaker power does not surrender its independence--its right to self-government--by associating with a stronger, and taking its protection. A weak state, in order to provide for its safety, may place itself under the protection of one more powerful, without stripping itself of the right of government, and ceasing to be a state. (80)
Grounding this association in treaties entered into by the Cherokee nation with the federal government, Marshall C.J. held that such an association engendered a duty on the part of the federal government to act as the guardian of native interests. (81)
Chief Justice Marshall's vision of the nature of the native proprietary interest in Worcester contains the seeds for a common law of aboriginal title that would facilitate the development of native self-government. By acknowledging the error of his ways in Johnson, where he concluded that the doctrine of discovery and the Crown prerogative vested title to native land in the Crown, Marshall C.J. in Worcester reconceptualized the native proprietary interest as an entitlement not dependent on a prior grant from the Crown; in fact, he openly accepted the fact that the native interest arose prior to any interest on the part of the "discovering" nation. Discovery, properly understood, vests only the exclusive right to acquire title from native people as against other potential nations. This holding is critical to the development of a set of principles governing the common law of aboriginal title that would facilitate the realization of self-government, for it challenges the assumption that the Crown holds underlying title to native land, and instead suggests that Crown regulation or extinguishment of the native proprietary interest at common law cannot occur absent native consent. Such a formulation respects the fact that, in Chief Justice Marshall's view, "[a] weak state, in order to provide for its safety, may place itself under the protection of one more powerful, without stripping itself of the right of government." (82) Worcester thus represents a moment of opportunity for the common law of aboriginal title to become an instrument of self-government. If the common law were to borrow from Marshall C.J.'s vision of the common law of aboriginal title implicit in Worcester and reject the assumption that the Crown holds underlying title to native land, the result would be a set of principles that acknowledges the fact that native people were the original inhabitants of the continent by requiring native consent to Crown regulation or extinguishment. (83) Such a formulation would result in the inclusion of native peoples in the exercise of executive action that affects their lives.
B. The Canadian Framework
The Marshall vision of native proprietary rights strongly influenced Canadian developments. (84) Yet by adopting an extremely thin version of the Marshall vision, English and Canadian courts have constructed a set of proprietary entitlements for native people which has the effect of entrenching a hierarchical relationship between native people and the Crown. Instead of viewing native people as enjoying underlying title to ancestral lands with discovery vesting a mere right to acquire native title, Canadian courts assume that underlying title vests in the Crown and that as a result aboriginal title can be extinguished by the Crown absent native consent and absent any compensatory obligation. Unlike Chief Justice Marshall, who first articulated this view of native proprietary interests in Johnson but who soon realized its flaws in Worcester, Canadian jurisprudence has failed to acknowledge the fact that discovery ought to establish rights as against other potential discoverers but not against the original inhabitants of the land, save an exclusive right of acquisition.
In an early case indirectly involving native title, St. Catherines Milling and Lumber Co. v. R., (85) the Privy Council assumed the responsibility of delineating the nature of the native interest at common law in lands not surrendered by treaty to the Crown. The issue arose in the context of a dispute between Ontario and the federal government over the legality of a logging permit issued by the federal government to St. Catherines Milling. The federal government argued that it possessed the authority to issue a permit because it obtained title to the land in question by virtue of a treaty it entered into with the Ojibway nation in 1873, in which the Ojibway people agreed to "cede, release, surrender, yield up, transfer and relinquish" specified lands to the Crown forever in return for the recognition of limited hunting and fishing rights and reserve lands, among other benefits. The federal government also relied on s. 91(24) of the Constitution Act, 1867 (86), which gives exclusive jurisdiction to Parliament over "Indians, and Lands reserved for the Indians." The province argued that it possessed underlying title to the land in question by virtue of s. 109 of the Constitution Act, 1867, which provides that all lands belonging to the province at the time of Confederation continue to belong to the province. In dismissing the federal government's arguments under s. 91 (24), Lord Watson distinguished between the federal right to legislate with respect to native land and provincial proprietary rights. Under s. 91(24) the federal government is entitled to enter into treaties with respect to native land and to extinguish native title. Should native people be divested of their proprietary interest in land, however, title to the land remains with the provincial Crown by virtue of s. 109 of the Constitution Act, 1867.
In so holding, Lord Watson made reference to the nature and extent of the native interest in terms similar to those articulated by Marshall C.J. in Johnson. Lord Watson spoke of a "personal and usufructory right" attaching to native people with respect to unsurrendered land, "dependent on the good will of the sovereign." (87) This "usufructory right" is a right of use and possession subject to surrender to or extinguishment by the Crown. In Lord Watson's view, the source of the native interest was the Royal Proclamation: "[t]heir possession, such as it was, can only be ascribed to the general provisions made by the royal proclamation in favour of all Indian tribes then living under the sovereignty and protection of the British Crown." (88) The text of the Royal Proclamation, according to Lord Watson, made it clear that occupancy rights were "dependent on the good will of the sovereign." (89) Yet his judgment implies that the same result would accrue in the absence of a proclamation: "there has been all along vested in the Crown a substantial and paramount estate, underlying the Indian title, which became a plenum dominium whenever that title was surrendered or otherwise extinguished." (90) St. Catherines Milling thus assumes the dependent proprietary relationship which Chief Justice Marshall sought to justify in Johnson: namely, that notwithstanding the fact that native people were the original occupants of the lands, the Crown has underlying title and is entitled to extinguish the native interest without native consent. Lord Watson is unclear as to the source of this dependency: on the one hand he implies that it is a function of the Royal Proclamation; on the other he implies that it is embedded in the common law. In either case, the result is that property law imagines the Crown to hold underlying title to Indian land and the native relation to land to be "dependent on the good will of the sovereign." (91)
That this is the case was borne out by the famous split decision of the Supreme Court of Canada in Calder v. A.G.B.C. (92) Calder involved an action brought by members of the Nishga tribe on the coast of British Columbia requesting a declaration that their title to certain lands in the province had never been lawfully extinguished. Despite the fact that the Nishga people had not surrendered the lands in question by treaty, the provincial Crown had made numerous grants with respect to the lands for development purposes: mining, petroleum exploration, tree farming, and forestry and fee simple grants. The Nishga people claimed that they possessed aboriginal title to the land either by virtue of the fact that they had been occupants "from time immemorial" or in the alternative because of the Royal Proclamation. The Court dismissed the native claim, with Pigeon J.'s narrow holding relating to Crown fiat carrying the day. (93) The other members of the Court were split on the question of extinguishment of title. Judson J., with whom Martland and Ritchie JJ. concurred, argued that whatever interest the Nishgas may have had at common law, it had been extinguished by legislation and proclamation prior to British Columbia's joining Confederation. Referring to U.S. cases which rely on the Marshall trilogy for the proposition that "'the exclusive right of the United States to extinguish' Indian title has never been doubted," (94) Judson J. was quick to conclude that in the present case "the sovereign authority elected to exercise complete dominion over the lands in question, adverse to any right of occupancy which the Nishga Tribe might have had, when, by legislation, it opened up such lands for settlement, subject to the reserves of land set aside for Indian occupation." (95) Compensation, in Judson J.'s view, is owed only when there is a "statutory direction to pay"--when, in other words, the legislature so decides. (96)
Justice Hall wrote a powerful dissent, concurred in by Spence and Laskin JJ., in which he argued that Nishga title was not extinguished by colonial proclamations and legislative enactments. (97) Reacting against the tenor of historical documentation which imagined native people to be "in effect a subhuman species," (98) Justice Hall sought to expand the nature of the Indian proprietary interest within the confines established by St. Catherines Milling and the Marshall trilogy. Rather than claiming the source of the native interest to be the Royal Proclamation, which he saw as governing Nishga land but "declaratory" of their rights, Hall J. rooted the native interest in the common law of property and invoked the common law principle that "[p]ossession is of itself at common law proof of ownership." (99) The evidence clearly established that the Nishga people were prima facie "owners of the lands that have been in their possession from time immemorial." (100) Yet Hall J. nevertheless appeared to accept that the Crown possesses underlying title to Indian land to the extent that he refered to, and seemingly accepted, the fact that the Nishgas did "not deny the right of the Crown to dispossess them." (101) In his view, the native interest in land could lawfully be extinguished by legislation absent consent and presumably absent compensation, yet would require a legislative intention to extinguish Indian title to be "clear and plain." (102) Absent a clear expression of intent, native title would continue to exist. His acceptance of an underlying Crown title to native lands appears to contemplate the further possibility of executive extinguishment as well.
Unlike Lord Watson in St. Catherines Milling, both Judson and Hall JJ. were willing to imagine native property rights as potentially rooted in the common law and therefore not solely dependent on the terms of the Royal Proclamation. Judson J. was willing to entertain the possibility that native title existed independently of the Royal Proclamation, for he was of the view that the nature of such title would in any event permit the sovereign to extinguish it without compensation or consent, and that such extinguishment had occurred in the present case. (103) Hall J., on the other hand, reasoned that the native interest was not limited to the reach of the Royal Proclamation and instead rested on the fact of original possession, and that the native interest in the present case had not been extinguished by state action. Yet despite this difference, both judgments remain true to the relationship of dependence enshrined in the legal categories which structure native interests in land. Judson J. is explicit that any property rights native people may enjoy are contingent on the discretion of the Crown, and that the Crown is entitled to extinguish native interests at any time without consent and without compensation. Hall J. adopts a similar framework of understanding to the extent that he envisages that the Crown or a legislature is entitled to extinguish absent consent and compensation as long as it expresses a clear intent to do so. While Hall J. is sympathetic to native forms of life, neither of them questions that executive or legislative action can extinguish what permits these forms of life to flourish: native use and enjoyment of land.
C. Recent Developments
Hall J.'s dissenting judgment is an illustration of how judicial attempts to ameliorate the proprietary position of native peoples that do not question the legitimacy of the hierarchical relationship built into the structure of the proprietary interest simply reproduce the dependency in a new form. Another case which powerfully illustrates this dilemma is the landmark judgment of Guerin, (104) where the Supreme Court of Canada held the federal Crown liable for breach of a fiduciary obligation owed to the Musqueam Indian band with respect to the leasing of reserve land. Provisions in the Indian Act governing the use and enjoyment of reserve land codify aspects of the native property interest at common law, namely, that natives enjoy full use and enjoyment of reserve land subject to regulation or extinguishment by the Crown. (105) Moreover, native people are precluded from alienating reserve land to anyone other than Crown representatives. (106) In Guerin, the band had surrendered a portion of its reserve land to the Crown so that it could be leased to third parties as a golf club. The Crown in turn leased the land to the third party on terms which were not as attractive as those the band had been led to believe it would receive upon surrender. In finding for the Indian band, Dickson J. (as he then was), for a majority of the Court held that the Crown is under a fiduciary obligation with respect to the Musqueam band to deal with the surrendered lands for the benefit of the band. (107) He also made more explicit the source and nature of aboriginal title. As for the source of native title, Dickson J. affirmed what both Justice Hall and Justice Judson appeared to acknowledge in Calder, and held that "aboriginal title existed in Canada (at least where it has not been extinguished by appropriate legislative action) independently of the Royal Proclamation." (108) As for the nature of native title, Dickson J. referred to Chief Justice Marshall's conclusion in Johnson that discovery gave ultimate title to European discoverers and reduced the native interest in land to occupancy and possession, alienable only to the Crown. The nature of the native interest was such that it called for the recognition of a fiduciary relationship between native people and the Crown. More specifically, the reason for the existence of a fiduciary obligation on the part of the Crown is that "the Indian interest in the land is inalienable except upon surrender to the Crown." (109) Due to the fact that "the relative legal positions are such that one party is at the mercy of the other's discretion," (110) Dickson J. was of the view that certain obligations attached to the Crown by virtue of its superior position. (111)
Guerin deserves to be recognized for advancing the cause of First Nations by its willingness to subject the exercise of Crown authority to judicial review. The attachment of fiduciary obligations on the Crown in its dealings with native lands ensures that native interests will be respected and protected by the Crown in its dealings with third parties. Yet Guerin, by not questioning the hierarchical relationship inherent in the property interest created by the common law, simply reproduces native dependency in a new form. Justice Dickson's judgment, premised on the proposition generated by Marshall C.J. in Johnson that the Crown enjoys underlying title to native land, accepts the hierarchical relation created by the recognition of underlying Crown title, and proposes to rein in the unbridled authority that ensues to the stronger party as a result by the attachment of legal duties attendant upon the exercise of such power. A fiduciary relationship by its very nature assumes a hierarchical relationship, in that "one party is at the mercy of the other's discretion." (112) By seeking to ameliorate some of the adverse consequences that flow from the establishment of a legal relationship of inequality, however, Guerin leaves intact the underlying hierarchical relation between the Crown and First Nations in the context of property entitlements. In so doing, and despite its intentions to the contrary, Guerin frustrates rather than facilitates the quest for a greater degree of self-government for Canada's First Nations.
D. Summary: The Myth of Crown Title
Property law, as a frame of reference that structures the relationship between native peoples and land, consists of a set of legal categories specific to native people which produces a relationship of dependence by native people on the Canadian state. Native people are restricted to use and enjoyment of unsurrendered or reserve land, and are precluded from personally alienating their lands to third parties. Premised on the assumption that the Crown holds underlying title to native lands and thereby enjoys the right to unilaterally extinguish native title, the common law of aboriginal title accepts the fact that one party is at the mercy of the other's discretion. Reformist impulses, as evidenced by Dickson J.'s judgment in Guerin, which do not openly question the legitimacy of an entrenched position of authority for the Crown, simply reproduce the dependency in a new form. The attachment of a fiduciary obligation only offsets some of the adverse side-effects of a hierarchical relationship and does not eliminate the fact that native peoples' interests in land are imagined in law as dependent on the will of the Crown. The principles that work to preserve this relationship of dependency have been supported and sustained by a vision of native people as both different than and similar to nonnative people. Native difference supports the extension of the doctrine of discovery to vest title in land in the "discovering" nation. Yet native similarity supports the proposition that native people hold property only by grant from the Crown. The result is a set of legal categories which resist calls for self-government, permits the Crown to extinguish native interests in land without native consent, and perpetuates a legal state of dependence by native people on the mercy and good will of the Canadian state.
The common law of aboriginal title represses the fact that native people were the original inhabitants of North America. Founded on a fatal misreading of the doctrine of discovery, the common law of aboriginal title assumes that the Crown holds underlying title to native land. Anglo-Canadian property law extended the "English law fiction ... that all lands in the realms were originally possessed, and accordingly owned, by the Crown," (113) to the Canadian context by reference to and reliance on the doctrine of discovery. Yet, as originally formulated, the doctrine of discovery vests in the discovering country territorial sovereignty and a right to priority of acquisition as against subsequent arrivals. Territorial sovereignty does not necessarily entail sovereign ownership of the land in question. Questions surrounding land ownership are to be resolved by reference not to international law but to domestic property law. As Kent McNeil has persuasively argued, the English common law of property does not support the notion of underlying Crown title; instead, in the absence of conquest, it suggests that title does not lie with the Crown unless it was made the subject of a treaty. (114)
Revising the common law of aboriginal title to provide that the Crown does not possess underlying title to native lands would result in a significant shift in the way in which the law structures and makes sense of native reality. The assumption of Crown title is central to Anglo-Canadian ways of understanding property relations between individuals and the state. Borrowed from feudal notions governing the relation between landholders and the English Crown, the fiction of underlying Crown title has worked to legitimate the distribution of land holdings in the settlement of Canada. Yet, in the words of Chief Justice Marshall in Worcester, "the crown could not be understood to grant what the crown did not affect to claim." (115) Similar recognition of the myth of Crown title can be found in Justice Wilson's concurring judgment in Guerin. Unlike Dickson J., who was fully comfortable with the proposition that "[a]ll our institutions recognize the absolute title of the Crown," (116) Wilson J. exhibited less enthusiasm for the proposition that the Crown has an unfettered right of extinguishment. In her view,
[t]he bands do not have the fee in the lands; their interest is a limited one. But it is an interest which cannot be derogated from or interfered with by the Crown's utilization of the land for purposes incompatible with the Indian title, unless, of course, the Indians agree. (117)
In order to lend legitimacy to the fact that native people were the first inhabitants and occupants of this country, the common law of aboriginal title ought to embrace Marshall C.J.'s vision of the relationship between native people and the Crown in Worcester, expand upon Justice Wilson's requirement of native consent, and reimagine proprietary relationships between the Crown and Canada's First Nations. The myth that the Crown possesses underlying title to native lands ought to be abolished. If the Crown wishes to put native lands to nonnative use either by regulating or extinguishing native use and enjoyment, then native consent must be obtained. The requirement of native consent would have the effect of transforming traditional Anglo-Canadian understandings of property ownership, which perpetuate a state of dependence by native people on the good will of the Crown. It would also enable native people to begin to have greater control over their individual and collective relationships to their ancestral land and to influence executive action that affects their needs and interests.
III. The Distribution of Legislative Authority
When the Fathers of Confederation in 1867 agreed to the principles enshrined in the Constitution Act, 1867, there was no question among those responsible for Confederation that the Dominion of Canada would exercise legislative jurisdiction over Canada's First Nations. The assertion of jurisdiction over native peoples by Canada conformed to dominant understandings of international law principles governing the acquisition of territorial sovereignty in the face of an indigenous population. As described previously, (118) it was widely accepted among colonial powers that territorial sovereignty over vacant lands vested with the discoverer as against subsequent arrivals. With respect to occupied lands, sovereignty could only be acquired through conquest or cession. Yet, despite the presence of indigenous populations, international law and European nations treated the North American continent as vacant. Territorial sovereignty could be asserted without resort to conquest or treaty. British settlement was sufficient to acquire sovereignty over lands not controlled by a competing colonial power, and British sovereignty over lands settled by other European powers was obtained through conquest or cession, as was the case with New France and the Treaty of Paris in 1763. (119) Perhaps to eliminate any doubt, the Royal Proclamation of the same year asserted territorial sovereignty over lands populated by the indigenous population of North America. (120) Thus, when more than a hundred years later the British Parliament passed the Constitution Act, 1867 and carved out a sphere of legislative authority for a newly-created federal government for its Canadian colonies, Crown sovereignty over Canada's First Nations was never in question.
As is evident from Chief Justice Marshall's judgment in Johnson, the assertion of territorial sovereignty over lands populated by native peoples of North America was supported by a rhetoric of justification which imagined native people as different than, and inferior to, European settlers. North America was deemed vacant despite the presence of an indigenous population on the basis that its native inhabitants were either heathens or insufficiently civilized to be worthy of the benefit of international law principles governing the acquisition of sovereignty over occupied territories. Native difference was seen as the justification for the assertion of territorial sovereignty without resort to conquest or cession. Native difference, in other words, provided the justification for treating native people the same as nonnative people, namely, as subjects of the Crown.
Nowhere in the jurisprudence devoted to the distribution of legislative authority between Parliament and provincial legislatures over aspects of native life is there any sustained examination of the legitimacy of the assertion of Canadian sovereignty over First Nations beyond the reasons alluded to by Chief Justice Marshall in Johnson. Working well within the boundaries of the Anglo-Canadian legal imagination, courts have never seriously questioned Canadian sovereignty over native people. (121) Much like jurisprudence under the common law of aboriginal title, which vests in the Crown an underlying proprietary interest in native lands and which permits the Crown to regulate and extinguish native interests absent native consent, the law governing the distribution of legislative authority permits Parliament and provincial legislatures to pass laws regulating the life and culture of native people without native consent. (122) Native consent is either assumed or deemed irrelevant in the law governing the distribution of authority over native people. The issue underlying every dispute relating to jurisdiction over matters pertaining to native people is not whether the state has authority to regulate incidents of native title, but rather which level of government is entitled to regulate the matter in dispute. The underlying assumption is that native title is subject to legislative regulation and extinguishment. Principles governing relations between levels of government accept without question a relationship of sovereign and subject between the Canadian state and native peoples. The law governing the division of power over native people is thus premised on a hierarchical relationship between the state and native people, with the former enjoying sovereign power over the latter.
Acceptance and denial of native difference legitimate not only the assertion of legislative authority over native people but also the distribution of that authority between Parliament and provincial legislatures by the Canadian judiciary. The distribution of legislative authority is effected through a process of judicial interpretation that vacillates between a vision of native people as different than nonnative people and one which sees native people as similar to nonnative people. The boundary between federal and provincial jurisdiction over native people is identified by reference to native difference. The acceptance and denial of native difference work to determine the scope of federal and provincial sovereignty over native people and to maintain a hierarchical relationship between native people and the Canadian state.
A. Federal Jurisdiction
The starting point of the law relating to the distribution of power is s. 91(24) of the Constitution Act, 1867, which confers on Parliament jurisdiction over "Indians, and Lands reserved for the Indians." Section 91(24) has been interpreted to authorize Parliament to single out native people, including Inuit peoples, (123) and treat them differently than nonnative people, and provides the constitutional authority for the Indian Act and other federal statutes which single out native people for special treatment. The Indian Act provides for the establishment of band councils and the management and protection of Indian lands and moneys, and defines certain Indian rights such as exemption from taxation in certain circumstances and entitlements to band membership and Indian status.
Parliament is also entitled to pass laws pursuant to other federal heads of power listed in the Constitution Act, 1867 and treat native people the same as nonnative people. That federal legislation passed pursuant to a head of power other than s. 91(24) applies to native people is poignantly illustrated by R. v. Derriksan, (124) which involved a dispute between a native person and fisheries officials. Derriksan was apprehended fishing in a certain area without a license, contrary to provincial regulations passed pursuant to the federal Fisheries Act. (125) Derriksan argued that he was exercising his common law aboriginal right to fish in the area. The Supreme Court of Canada had little time for the argument, dismissing it orally on the basis that even if Derriksan was correct in asserting an aboriginal right to fish in the waters in question, Parliament has jurisdiction to regulate aboriginal rights not only by virtue of s. 91(24) of the Constitution Act, 1867 but also by virtue of its other heads of power in s. 91. The Court held the Fisheries Act, enacted pursuant to s. 91(12), to be applicable to native people despite the fact that it is not in relation to "Indians, and Lands reserved for the Indians." Thus Parliament is entitled to have its laws, passed under heads of power other than s. 91(24), applied to native people as well as nonnative people. Parliament, in other words, is entitled to ignore native difference and treat native people the same as nonnative people. It is also entitled, by virtue of s. 91(24), to pass laws which single out native people and treat native people differently than nonnative people.
As evidenced by the Court's cursory dismissal of Derriksan's claim that his right to fish could not be interfered with by federal legislation, principles designed to effect the distribution of authority between Parliament and provincial legislatures are founded on an unquestioned belief in the authority of Parliament, pursuant to either s. 91(24) or another source of federal power, to pass laws that affect First Nations without their consent. Judicial acceptance of federal authority over native people is based on the view that the Constitution Act, 1867 authorizes Parliament to pass laws affecting native people and that, by implication, native people surrendered their sovereignty to the overarching authority of European monarchs upon the settlement of the continent. Yet the legitimacy of this assumption is never seriously questioned by those entrusted with distributing the legislative power entailed by the assertion of territorial sovereignty. Ultimately grounded on notions of native inferiority, the assertion of territorial sovereignty had the effect of subjecting native forms of self-government to the legislative authority of the colonies.
Continued reliance on the doctrine of discovery to ground the legitimacy of traditional understandings of s. 91 of the Constitution Act, 1867, however, is deeply problematic. (126) As illustrated by Chief Justice Marshall's reasons in Johnson, historical justifications for the assertion of territorial sovereignty are based on unacceptable notions of native inferiority. The judiciary must begin to construct principles that accept the fact that native people did not surrender their sovereignty or pre-existing forms of government by the mere fact of European settlement. The law governing the distribution of legislative authority over native people ought to eliminate the interpretive obstacles currently in place that permit extensive federal regulation of native people absent native consent, and construct principles governing the distribution of authority to allow for the ability of native people themselves to pass laws governing their individual and collective lives. In Part V of this article, I argue that s. 35(1) of the Constitution Act, 1982 authorizes and indeed requires such judicial action. (127) The remainder of this Part is devoted to describing how such a result can be achieved. Although it will be no easy task, it is not a wholly unfamiliar one for the judiciary. Principles constructed by the judiciary to police the boundaries of provincial jurisdiction over native people offer a useful doctrinal approach which, if deepened and extended to the federal sphere, could provide a model for judicial protection against the assertion of legislative authority over Canada's First Nations.
B. Provincial Jurisdiction
Embedded in the principles constructed by the judiciary to determine the scope of provincial jurisdiction over native people are the seeds of an approach which could facilitate the realization of First Nations self-government. Yet current efforts to carve out a space free from provincial legislative regulation are not justified by the need to preserve and promote native autonomy; instead, provincial laws of general application are read down solely to protect federal legislative authority over First Nations. (128) To this end, a province is not entitled to single out native people and treat them differently than nonnative people. Legislation to this effect would be in pith and substance legislation in relation to "Indians" and therefore ultra vires the province. This is illustrated by R. v. Sutherland, (129) in which the Supreme Court of Canada held that s. 49 of Manitoba's Wildlife Act (130) was ultra vires the province because it singled out and thus was a law in relation to native people. Lurking in the background of the case was a memorandum of agreement between the federal and provincial government designed to transfer from the federal government to the province all ungranted lands within the province. (131) The memorandum of agreement stated that provincial fish and game laws would not apply to native people seeking to hunt and fish on unoccupied Crown lands or on lands on which native people had a right of access. Section 49 of Manitoba's Wildlife Act deemed a huge amount of Crown land to be occupied, thereby eliminating the authority which the memorandum of agreement gave to native people to hunt and fish on the land in question. In the Court's view, provincial jurisdiction over property and civil rights does not entitle a province to single out native people and treat them differently than nonnative people; since s. 49 was aimed at native people, it was therefore ultra vires the province. (132)
Despite the fact that a province cannot seek to regulate native people by singling them out and treating them differently than nonnative people, a province, generally speaking, is entitled to treat native people the same as nonnative people and regulate their affairs by laws of "general application." This is illustrated in Kruger and Manuel v. R., (133) where at issue was whether a provincial game law applied to non-treaty natives hunting off a reserve on unoccupied Crown land. Before concluding that the relevant statute was applicable to native people, the Court offered some guidance on what constitutes a law of general application. Rejecting the view that a law which has a disparate impact on native people is not a law of general application, the Court held that "the fact that a law may have graver consequence to one person than to another does not, on that account alone, make the law other than one of general application." (134) Since the legislation had a uniform territorial operation and a valid provincial purpose, it was held to be a law of general application.
Though a province is entitled to treat native people the same as nonnative people and regulate native affairs by laws of "general application," the Court noted in Kruger and Manuel that provincial authority in this regard is not unlimited. In the words of Dickson C.J., "[t]he line is crossed ... when an enactment, though in relation to another matter, by its effect, impairs the status or capacity" of native people. (135) A similar test was articulated by Justice Beetz in Four B Manufacturing v. United Garment Workers of America, (136) where he spoke of provincial laws of general application which touch on matters which are "inherently Indian" or "regulate Indians qua Indians." (137) In such cases, the law, despite its general applicability, will be held to be inapplicable to native people. In Derrickson v. Derrickson, (138) for example, the Court was of the view that provincial legislation of general application did go to the essence of federal jurisdiction over native people. At issue was whether provisions of British Columbia's Family Relations Act (139) dealing with division of family assets apply to lands located in a reserve held by a native. The Indian Act provides that possession of lands in a reserve is to be allotted to individual band members by the band council with the approval of the Minister of Indian and Northern Development who issues a certificate of possession. (140) The appellant wife brought a petition for divorce and sought a declaration pursuant to the Family Relations Act that she was entitled to an undivided one-half interest in the properties for which her husband held certificates of possession. For a unanimous Court, Chouinard J. held that "[t]he right to possession of lands on an [I]ndian reserve is manifestly of the very essence of the federal exclusive legislative power under s. 91(24) of the Constitution Act, 1867," noting that to hold otherwise "would significantly impact on the ability of the Band and the federal Crown to ensure that reserve lands are used for the benefit of the Band." (141) Thus the Court imagined possession of reserve lands as going to the core of federal jurisdiction. (142)
Thus a province is not entitled to single out native people and treat them differently than nonnative people, nor is a province, under the guise of similar treatment, entitled to regulate native peoples' essential difference. Yet difficulties arise when the judiciary is asked to provide a precise location for this difference. Should it refer to attributes which are associated with the legal definition of "Indian" or should difference be located elsewhere, for example, in native culture or history? The former leaves the provinces free to subject native people to norms and values which are alien to native culture so long as they are embodied in laws of general application and do not affect the legal status of native people. In Kruger and Manuel, for example, the Court not only held that the provincial game law was a law of general application but also that it did not "impair the status or capacity" of native people. In Four B Manufacturing, a similar conclusion was reached with respect to provincial labour legislation. In both cases, few reasons were offered for the conclusion, though few are needed if by "status and capacity" the Court means to refer to those attributes which make native people native in the eyes of the law. Provincial game laws, like provincial labour legislation, does not threaten "Indian status ... [or] rights so closely connected with Indian status that they should be regarded as necessary incidents of status such for instance as registrability, membership in a band, the right to participate in the election of chiefs and band councils, reserve privileges, etc." (143) Yet if by status and capacity one means to refer to the ability of native people to engage in the cultural practices which help to constitute their individual and collective self-definition, provincial game laws do threaten the status and capacity of native people for whom hunting and fishing is a central aspect of their native identity. To reduce the meaning of status and capacity to its legal attributes leaves the provinces free to eliminate all that constitutes native difference apart from the formal shell of legal status, so long as this process of elimination occurs through laws of general application.
The spectre of provincial legislation riding roughshod over native difference through the guise of laws of general application has prompted some judges to move beyond a legal definition of status and capacity and embrace a richer definition of "Indianness." In R. v. Dick, (144) for example, at issue was the familiar fact-situation of a native person caught hunting out-of-season off his reserve but on the traditional hunting grounds of his people. Lambert J.A. in dissent noted the close connection between the rituals of hunting and the self-definition of the Alkali Lake Band to which the respondent belonged and argued that "it is impossible to read the evidence without realizing killing fish and animals for food and other uses gives shape and meaning to the lives and members of the Alkali Lake Band," and therefore that provincial game laws strike at "the central core of Indianness." (145) The majority of the Court of Appeal agreed with the lower court's holding that the case was indistinguishable from Kruger and Manuel. (146)
Contained in Lambert J.A.'s attempt to move beyond a strictly legal definition of status and capacity are the beginnings of an approach to the distribution of legislative authority which, if extended beyond the provincial sphere to govern federal authority, would facilitate the realization of First Nations self-government. By shielding native people from the application of federal or provincial laws that strike at the core of their self-identity, the law governing the distribution of authority could acknowledge the illegitimacy of continuing to assume that native people surrendered their sovereignty by the mere fact of European settlement, and provide a doctrinal basis for reimagining Canada's relations with its indigenous population. The judiciary could police the boundary between Canada and First Nations simply by extending the Lambert J.A. approach to protect native self-identity from provincial and federal intrusion. (147)
That such an approach is not without risks is illustrated by Jack and Charlie v. R. (148) In Jack and Charlie, two native people were apprehended hunting without a license out-of-season. The activity was done in conjunction with a religious ceremony in which the Salish people of the west coast cook meat to satisfy the needs and desires of their ancestors, whom they believe to have the same needs and desires as living people. Counsel for the Salish argued among other things that the law struck at the core of Indianness and regulated native people qua native people by virtue of the fact that it interfered with the religious practices of the Salish people. Justice Beetz, writing for a unanimous Court, drew a distinction between the killing of the deer and the religious ceremony and held that "there was no evidence that the killing of the deer was part of the religious ceremony." (149) Though evidence was given at trial that raw deer meat was required for the ceremony, Justice Beetz held that this did not entail that the killing of the deer itself was a ceremonious act in the absence of evidence to suggest that "the use of defrosted deer meat was sacrilegious." (150) What is problematic about Justice Beetz' reasons for judgment is not so much the cavalier "buy-a-freezer" character to it, but rather the risks associated with the simple possibility that he might be wrong. (151)
The risks associated with the judiciary assuming the task of engaging in acts of cultural definition, however, can be ameliorated by enhancing the ability of native people to participate in the litigation process and sensitizing the judiciary to native difference. Lambert J.A.'s approach to the delineation of the scope of provincial power remains a useful means by which the judiciary can attempt to facilitate the realization of native self-government. Native people would be free from federal or provincial legislation that threatens their self-identity. Such a result is the logical implication of rejecting the legitimacy of the doctrine of discovery in the Canadian context.
C. Summary: Challenging Legislative Supremacy
The law governing the distribution of legislative authority as it relates to Canada's First Nations is a thicket of doctrinal manoeuvres that accepts without question legislative sovereignty over native peoples. Federal jurisdiction is derived from s. 91(24) of the Constitution Act, 1867, which has been read to permit Parliament to single out native people and treat them differently than normative people. Parliament is also entitled to treat native people the same as normative people under laws passed pursuant to other heads of federal power. Provincial legislatures are not entitled to treat native people differently than nonnative people, but can pass laws regulating native forms of life so long as such laws are of general application and do not touch on matters which are inherently Indian. By not questioning the legitimacy of the assumption of legislative jurisdiction by either level of government over Canada's First Nations, however, the law relating to the distribution of authority perpetuates a legal relationship of dependence between native peoples and the Canadian state.
With respect to federal jurisdiction, s. 91(24) of the Constitution Act, 1867 has been interpreted by the judiciary as conferring on Parliament the authority to pass laws specifically in relation to native forms of life absent native consent. With respect to provincial jurisdiction, s. 92 of the Constitution Act, 1867 has been interpreted as authorizing provincial legislatures to engage in legislative intervention which has a similar effect. Jurisprudence governing the distribution of legislative authority, premised on the Anglo-Canadian notion of legislative supremacy, imagines native people to be subjects of the Crown and in this respect essentially the same as nonnative people. This assimilationist vision forms the conceptual backdrop to the assertion of legislative authority absent native consent.
Yet the automatic acceptance of legislative supremacy by the judiciary in the context of the distribution of power between Parliament and the provinces must be challenged if the law is to facilitate the realization of self-government. Although the notion that there is a sphere of activity immune from the reach of the legislature is antithetical to Canadian understandings of the law of federalism, vesting authority in Canadian legislatures to pass laws that regulate native forms of life is equally antithetical to the aspiration of native self-government, to the extent that self-government requires that native people possess control over their individual and collective destinies. One component of such control is the ability to pass laws and organize social relations free from federal or provincial interference. Although translating such an aspiration into the discourse of the law governing the distribution of power will necessarily proceed on a case-by-case basis, the distribution of legislative power against the backdrop of multiple communities in Canadian political life is not a wholly unfamiliar task for the judiciary. As Richard Simeon has argued, "the essential message of federalism is that it is a regime of multiple loyalties." (152) Moreover, jurisprudence addressing the extent to which provinces are entitled to regulate native forms of life by laws of general application already contains a doctrinal technique suitable for the task of reconciling overlapping allegiances in the context of First Nations self-government. Current jurisprudence engages in such an inquiry for the purposes of determining whether a province as opposed to Parliament can engage in cultural interference. The judiciary ought to extend its current approach with respect to provincial laws of general application to apply to all laws, be they federal or provincial, that touch on matters central to native identity. Federal laws and provincial laws of general application that do not bear on matters relating to cultural self-definition could continue to apply to native people without threatening forms of self-government. If a federal or provincial law is held to govern matters central to native identity, they ought to be declared ultra vires absent native consent and participation in their formulation. Section 91 (24) ought to be re-interpreted as authorizing Parliament to pass laws specifically in relation to native people only if native people participate in and consent to the formation of those laws. (153) The potential for cultural insensitivity by the judiciary when engaging in the task of delineating matters central to native identity, as evidenced by Justice Beetz' reasons in Jack and Charlie, can be alleviated by native participation in the litigation process and an increased awareness of native difference on the part of the judiciary.
The concept of legislative sovereignty, so central to the Canadian legal imagination that it structures the very way the law conceives of legal problems involving legislative jurisdiction over Canada's First Nations, is intimately connected to the law's inability to embrace native forms of self-government. As stated by Bruce Ryder, "valid claims of First Nations people to autonomy have been ignored by the doctrinal structure of Canadian federalism." (154) Built into the premises of the law governing the distribution of legislative authority is a form of legal understanding that conceptually excludes serious consideration of native self-government. The task facing decisionmakers is not to devise ways in which self-government can be accommodated within the current rubric of legislative supremacy, but rather to acknowledge that legislative supremacy, as a way of understanding and structuring native reality in law, must itself be accommodated and adapted so as to create constitutional spaces in which First Nations self-government can flourish.
IV. Treaty Rights and Treaty Interpretation
Since 1700, close to 500 treaties have been negotiated between representatives of the Crown and native people in Canada. (155) The year 1850 is often used to distinguish two different types of treaties. Most treaties signed prior to 1850 involved a one-time payment by the Crown for the surrender of relatively small tracts of land. Under the 1781 Treaty between the Crown and the Chippewa and Mississagua nations, for example, Indian land was surrendered to the Crown in return for three hundred suits of clothing. Occasionally annual payments were provided for, as was the case in another treaty negotiated between the Chippewa nation and the Crown in 1827, where the Chippewas agreed to surrender over 2 million acres of land in return for a paltry 18 thousand acres of reserve land and an annual payment of eleven hundred pounds. (156) Some pre-1850 treaties did not refer to land surrenders but were simply peace and friendship treaties whereby natives would agree to lay down their arms and support the Crown in the war against the French by England. Peace and friendship treaties often were negotiated without any reciprocal obligations attaching to the Crown. One exception was the Treaty of 1752, where the Micmac nation in Nova Scotia was guaranteed the right to hunt and fish in return for its agreement to "submit to the King" and "forbear all acts of hostility towards English subjects." (157) Another exception was an agreement signed in 1760 by General Murray and the Huron nation, in which the Hurons agreed to make peace with British forces in return for a guarantee of "the free exercise of their Religion, their Customs, and their Liberty of trading with the English." (158)
Treaties negotiated during and after 1850 covered much more land and provided for annual payments. The Robinson-Huron Treaty, for example, one of two treaties negotiated in 1850 by William Benjamin Robinson, provincial commissioner of Upper Canada, (159) involved the surrender of all land held by the parties north of Lake Huron to the border between Canada and what was then known as Rupert's Land. In exchange, the native signatories were guaranteed a lump sum payment of 2000 pounds, an annuity of 500 pounds, three areas of reserve lands, and the right to hunt and fish on unoccupied lands. (160) Eleven numbered treaties, negotiated between 1871 and 1921, cover land from Quebec's border with Ontario to the northwest edge of the country. Treaty Number Six, for example, involved the surrender of approximately 120,000 square miles of territory in what is now central Saskatchewan and Alberta in return for one square mile of reserve land per family of five; continued hunting and fishing rights; a one-time payment of $12.00 per Indian, farm stock and equipment, seed, a flag, a medal, and a horse, harness and wagon for each chief; $1500.00 annual payments, as well as an additional $1000.00 a year for three years for provisions; a promise to maintain a school on reserve land; and an undertaking to provide for a medicine chest for the benefit of Indians and assistance in the case of pestilence or famine. (161)
Though each is unique in its terms and scope of application, and apart from a few early peace and friendship treaties, virtually every treaty entered into by the Crown and native people involves the surrender of ancestral lands in return for certain benefits to be provided by state authorities. Treaties thus simultaneously frustrate and facilitate the aspiration of native peoples to have more control over their individual and collective destinies. On the one hand, the fact that the Crown has entered into agreements that have been held to deprive native people of their historic connection to their ancestral lands and involve the relocation of native people to reserves is a source of profound disempowerment. However much it may vary from context to context, the aspiration to self-government is inextricably tied to native peoples' relationship to ancestral lands. The severing of such a relationship through surrender and the relocation of native peoples to reserves has had a devastating effect on native peoples' ability to maintain native forms of life. On the other hand, treaties contain positive elements and entitlements for native people which, if read sympathetically, could facilitate the realization of self-government. The act of surrender, for example, need not be interpreted by reference to traditional Anglo-Canadian understandings of title transfers. A surrender need not be read as conveying an absolute right of exclusion and as automatically stripping native people of continued use and enjoyment of the land in question. Instead, a surrender could be viewed as the granting of consent to a system of priority of use, whereby native people, in return for benefits provided by the Crown, agree either that nonnative use or native use will have priority in the event of conflict between uses. When there is no conflict in use, namely, where one party can engage in activity that does not threaten the use put to the land by the other party enjoying priority, the act of surrender need not foreclose native use and enjoyment. The content of treaties also provides moments of possibility for the realization of aspects of self-government. The promise to maintain a school and a medicine chest on reserve lands in Treaty Six, for example, potentially binds the Crown to provide complete funding for educational and medical services to those covered by its terms. Judicial interpretation of treaties between the Crown and native peoples in Canada thus is critical to the success or failure of treaties to serve as instruments of self-government.
Jurisprudence surrounding treaties, however, historically has been unsympathetic to viewing treaties in a way which would minimize their potential for disempowerment and maximize the opportunities they present for realizing the aspiration of self-government. Judicial resistance to the aspiration of self-government in the context of treaty jurisprudence is reflected in two areas: the legal status accorded to treaties by law, and the way in which substantive treaty rights are interpreted by the courts. The former refers to the legal force accorded to treaties. The latter refers to the way in which the judiciary has given substantive content to vague treaty guarantees. Although each area has seen a historical shift toward the development of principles which are more accommodating of native concerns, contemporary treaty jurisprudence in both spheres continues to reflect and perpetuate a hierarchical relationship between native people and the Canadian state.
With respect to the legal status of treaties, treaty rights have been imagined in law in such a way as to render them either unenforceable or enforceable only against state inaction. More specifically, judicial attitudes toward the legal status of treaties entered into by native peoples and the Crown historically has involved a shift from an approach that imagines native people as different than, and inferior to, nonnative people, toward an approach that imagines native people as the same as nonnative people and therefore not worthy of special consideration. The earlier approach viewed agreements between the Crown and native peoples as essentially political agreements not enforceable in a court of law. Traditional international law principles provide that an agreement between two "independent powers" constitutes a treaty binding on the parties to the agreement. (162) Courts viewed native people as "uncivilized" and as belonging to an inferior race and thus agreements between native peoples and the Crown were not binding on the Crown in law. Contemporary jurisprudence has rejected the view that native people are different than, and inferior to, normative people, with the result being that treaties are elevated from the level of nonbinding political agreement to that of contractual right. Native people are imagined under this approach as possessing legal personality similar to that possessed by nonnative people in Canada and therefore capable of entering into binding agreements with the Crown. Because such agreements are not viewed as anything more than contractual agreements with the Crown, despite exhortations by the courts that treaties are "unique," (163) they are seen as subject to legislative authority. Prior to 1982, (164) this had the effect of permitting Parliament to regulate or extinguish existing treaty rights.
With respect to judicial interpretation of the content of treaty guarantees, there has been a shift in the opposite direction, namely, toward the embrace of native difference. More specifically, early judicial pronouncements on the content of treaty guarantees were blind to native cultural difference. Treaty rights historically were rendered concrete and given determinate meaning by reference to Anglo-Canadian public and private law norms and values. The "plain meaning" of a treaty guarantee was determined by a process that accepted without question the legitimacy of basic categories of Anglo-Canadian legal consciousness. This resulted in expansive definitions of the meaning of land surrenders and narrow interpretations of treaty benefits flowing to native people. Recent jurisprudence is more sensitive to native expectations about treaty negotiation and thus is more accommodating of native difference. This shift has resulted in more expansive definitions of treaty benefits to native people, though the meaning of land surrenders effected by treaty continues to be steeped in Anglo-Canadian notions concerning title and transfer.
A. Treaties and Native Inferiority
The case of R. v. Syliboy (165) is illustrative of the tendency of early jurisprudence to view treaties as little more than political arrangements between native people and the Crown through a rhetoric of justification that imagined native people as different than, and inferior to, nonnative people. Patterson J.'s judgment also illustrates the judicial tendency to accept as unquestioned the legitimacy of Anglo-Canadian public and private law categories and values in the adjudication of threshold legal issues surrounding treaty disputes.
In Syliboy, the grand chief of the Micmac nation was convicted of illegal hunting on Cape Breton Island, contrary to Nova Scotia's Lands and Forests Act, 1926. (166) Syliboy admitted to the acts complained of, but asserted a right to hunt and trap under a treaty entered into in 1752 by the then-Governor of the Province of Nova Scotia and various delegates of the Micmac nation. Article 4 of the treaty provided that "the said Tribe of Indians shall not be hindered from but have free liberty to hunt and fish as usual." (167) Despite the relative clarity of the terms of the treaty, Patterson J. dismissed Syliboy's appeal. Bombarding the reader with a fusillade of arguments supporting the Crown's case, the judgment illustrates many of the difficulties associated with the assertion of native treaty rights. Articulating the view that native people are different than, and inferior to, normative people, Patterson J. held that the Micmac nation was an "uncivilized people" and as a result could not be said to be an "independent power," which would confer on it the status to enter into a treaty with another nation. (168) Referring to a version of the doctrine of discovery which Marshall C.J. recanted in Worcester, (169) Patterson J. stated that "[a] civilized nation first discovering a country of uncivilized people or savages held such country as its own until such time as by treaty it was transferred to some other civilized nation," and that as a result "[t]he savages' rights of sovereignty were never recognized." (170) With Kafkaesque flair, Patterson J. found support for his conclusion that the Micmac did not claim to be an independent power in "the very fact" that they sought from the Governor the right to hunt in Nova Scotia. (171) In his words, "if they were [an independent power], why go to another nation asking this privilege or right and giving promise of good behaviour that they might obtain it?" (172) Patterson J. concluded this part of his reasons with the statement that "the Treaty of 1752 is not a treaty at all; ... it is at best a mere agreement made by the Governor and a handful of Indians." (173) Patterson J. further held in the alternative that even if the Treaty of 1752 was in fact a treaty, it did not extend to Cape Breton Island due to the fact that Cape Breton Island was not part of the Province of Nova Scotia when the treaty was negotiated and because the signatories, in his view, did not represent the precise tribe of Micmac to which Syliboy belonged. He was also of the view that if the Treaty of 1752 was a treaty, it had expired due to the outbreak of hostilities, but in any case contemplated provincial regulation of hunting. Patterson J. concluded by viewing the agreement as a form of political agreement unenforceable in the courts under contractual principles, characterizing the benefits that flowed to the Micmac not in terms of contractual or treaty right but rather as a manifestation of the good will of the state as expressed in statutory form. (174)
Patterson J.'s judgment is an example, albeit extreme, of some of the threshold difficulties native people face in attempting to assert treaty rights in the context of a jurisprudence that imagines natives as different than and inferior to nonnative people. In Syliboy, native difference is cast in terms of native inferiority and then relied upon to deny the ability of native people to enter into agreements having the force of law. Since native peoples are not imagined as similar to "independent powers," agreements made between native representatives and the Crown do not constitute international treaties. Patterson J.'s argument that the agreement is not a treaty because the Micmac nation was "uncivilized" and "savage" is rooted in racist assumptions about native difference. He referred to the native negotiators as "a handful of Indians" (175) and resisted conceptualizing those involved as acting on behalf of a legal entity, namely, the Micmac nation, capable of entering into binding agreements with the Crown. Syliboy also is an illustration of an early tendency to accept without question the legitimacy of Anglo-Canadian public and private law norms in the determination of threshold legal issues surrounding treaty litigation. In his rejection of the possibility that the Treaty of 1725 extends to Cape Breton Island, Patterson J. determined the scope of the treaty by reference to legal boundaries which have little or no meaning to the Micmac people. Thus Patterson J.'s resistance to the proposition that the agreement constitutes a treaty is rooted in a view of native people as different than and inferior to nonnative people, whereas his view that the agreement does not extend in any event to Cape Breton Island is premised on the unquestioned acceptance of Anglo-Canadian legal boundaries.
B. The Contractualist Vision
Although contemporary jurisprudence no longer is explicitly grounded in the view that native people are an inferior race, threshold questions of status, applicability, and expiry similar to those raised in Syliboy continue to haunt and infuse contemporary litigation surrounding treaty rights. As well, judicial interpretation of vague treaty guarantees, at least until recently, has been marked by a tendency to import Anglo-Canadian norms into the interpretive process, and has resulted in narrow constructions of treaty provisions which exclude native interests in land use and self-government. The tendency to interpret treaty guarantees narrowly is exemplified in the case of Johnston v. R., (176) where the appellant was appealing a conviction of a failure to pay hospital tax as required by Saskatchewan legislation. The Saskatchewan Hospitalization Act (177) created a general obligation to pay hospital tax but exempted Indians living on reserves as well as Indians living off reserves for less than 12 months. A further exemption existed for those who were entitled to obtain general hospital services from the federal government. Johnston had been living off his reserve for more than 12 months but he argued that Treaty Number Six entered into in 1876 between the Wood Cree and the Crown entitled him to obtain general hospital services from the federal government. More specifically, Treaty Number Six provided the following:
That a medicine chest shall be kept at the house of each Indian Agent for the use and benefit of the Indians at the direction of such agent. That in the event hereafter of the Indians comprised within the treaty being overtaken by any pestilence, or by a general famine, the Queen, on being satisfied and certified thereof by her Indian Agent or Agents, will grant to the Indians assistance of such character and to such extent as her Chief Superintendent of Indian Affairs shall deem necessary and sufficient to relieve the Indians from the calamity that shall have befallen them. (178)
In the court below, the Magistrate held that the provision for a medical chest required that the federal government provide "all medical services, including medicines, drugs, medical supplies and hospital care free of charge." (179) In allowing the appeal, Culliton C.J.S. was faced with a choice between a broad interpretation and a narrow interpretation of the clause, with very little interpretive aids to assist him. He opted for the latter. Referring to the meaning "conveyed by the words themselves in the context in which they are used," Culliton C.J.S. interpreted the clause to provide for an undertaking by the Crown to keep at the house of the Indian agent a medicine chest for the use and benefit of the Indians at the direction of the agent, adding that he could "find nothing historically, or in any dictionary definition, or in any legal pronouncement, that would justify the conclusion that the Indians, in seeking and accepting the Crown's obligation to provide a 'medicine chest' had in contemplation provision of all medical services, including hospital care." (180)
In refusing to read the medicine chest provision as requiring the Crown to provide medical care free of charge, Culliton C.J.S. adopted an interpretive strategy of giving meaning to treaty rights by reference to the meaning of the terms used in existence at the time of negotiation. This "frozen rights" approach to treaty interpretation is the result of a narrow stress on the intent of those involved in treaty negotiations. In examining the record for evidence of such intent, Culliton C.J.S. goes no further than the official record of the Honourable Alexander Morris, P.C. (181) This is not to suggest that determining the understanding of the native negotiators would have been an easy task, (182) but rather to challenge an interpretive process which determines the meaning of treaty rights by reference to the state of medicine as it existed in 1876. Culliton C.J.S.'s reading of Treaty Number Six is indicative of a tendency to imagine treaty rights at best as contractual guarantees, and a reluctance to accord them the kind of status worthy of constitutional documents. When contrasted to the interpretive style adopted by the judiciary in relation to the Constitution Act, 1867, viewed as a "living tree capable of growth and expansion within its natural limits," (183) the historically impoverished nature of treaty jurisprudence could not be starker.
A further illustration of the tendency to inject Anglo-Canadian norms and values into the process by which meaning is given to abstract treaty rights is found in Pawis v. R., (184) where four members of the Ojibway nation were charged with violating federal fishery regulations. All four had been fishing in a traditional manner for food for themselves and other band members in places where they had fished regularly in the past. In their defence, they appealed to a treaty right to hunt and fish pursuant to the Robinson-Huron Treaty of 1850, which provided that in consideration of the surrender of lands covered by the treaty, the chiefs and tribes covered were granted "the full and free privilege to hunt over the territory now ceded by them, and to fish in the waters thereof, as they have theretofore been in the habit of doing." (185) The accuseds argued that the Crown was in breach of its treaty obligations and in breach of trust by the enactment of fishery regulations. (186)
Dismissing the above arguments, Marceau J. first held that the Robinson-Huron Treaty was "tantamount to a contract." (187) Viewing the treaty through contractualist lenses had the effect of triggering several threshold concerns detrimental to the success of the appeal. According to Marceau J., any breach of contract occurred not at the date of the apprehension of the four accuseds, but rather when fisheries regulations were first passed by federal authorities. As a result, "[t]he breach of contract they allege, and the damage they say was thereby caused to the Ojibways, occurred long before they were born." (188) The limitation period for maintaining an action in breach of contract long expired prior to their apprehension. (189) Thus, conceptualizing a treaty as a type of contract renders it subject to limitation periods; as a result, treaty rights which have been systematically ignored by the authorities cannot be invoked in aid of an action in breach of contract.
Viewing the treaty as if it were a contract also enabled Marceau J. to resort to the technique of implication. More specifically, Marceau J. held that he would infer into the agreement, "in like manner that clauses that are customary or necessary are supplied in ordinary contracts between individuals," that the right to hunt and fish is subject to state regulation. (190) Guiding this part of his reasons is the underlying view that the Crown could not contractually bind itself to not enact legislation regulating methods of fishing. Analogizing to property ownership, Marceau J. concluded that
[t]he right acquired by the Indians in those treaties was ... necessarily subject in its exercise to restriction through acts of the legislature, just as the person who acquires from the Crown a grant of land is subject in its enjoyment to such legislative restrictions as may later be passed as to the use which may be made of it. (191)
The enactment of fishery regulations, in Marceau J.'s view, stemming from valid exercises of legislative authority, could not constitute breach of contract. In his words, "[h]ow can a legal act be at the same time an act to be sanctioned as an illegal breach of contract?" (192)
In any event, Marceau J. was of the view that the treaty did not contain a promise that the Crown would not regulate the right to fish. More specifically, he held that the reference to "full and free privilege to fish" did not exclude state regulation. Marceau J. reached this conclusion by interpreting the treaty right to hunt and fish by reference to Anglo-Canadian private law categories of understanding. More specifically, the reference to a "free privilege to fish" was given meaning by the invocation of contractualist values. Marceau J. stated that "it simply means that no consideration is to be exacted from those entitled to hunt and fish in exercise of the right. (193) The reference to "full ... privilege to fish" was interpreted through the prism of property ownership, and seen as "connot[ing] a plenary quality, a completeness of the right ... strictly as regards the right of the owner or possessor of the land." (194) Thus in Marceau J.'s view, the "full and free privilege to hunt and fish" accorded to the Ojibway nation by the terms of the Robinson-Huron Treaty does not refer to the methods used but to the purpose for which the activity was carried on, "[t]he words have nothing to do with the manner of fishing." (195) He therefore concluded that "the wording does not import any intention that there be unrestricted rights in perpetuity to fish regardless of the general laws regulating the means of hunting and fishing." (196)
Pawis is an example of how treaty jurisprudence simultaneously devalues the status of treaty rights to at best the level of contractual rights as against the Crown, and involves an interpretive process that views those guarantees through the lenses of Anglo-Canadian private law categories of understanding. By reducing the status of treaties to the category of contract, the law is able to maintain the supremacy of legislative initiatives that infringe upon treaty guarantees. (197) Treaty rights become enforceable only in the context of Crown inaction, in circumstances where the Crown has failed to live up to the promises set out in the treaty. Even in cases of state inaction, maintaining a cause for breach of contract will be possible only where a plaintiff can point to recent Crown inaction; otherwise limitation periods will govern. In any event, no relief is available in circumstances where legislative initiatives regulate the exercise of treaty rights, as in the case of regulations passed pursuant to federal jurisdiction over fisheries. (198) Moreover, by interpreting the nature and extent of treaty guarantees by reference to Anglo-Canadian private categories of understanding, as evidenced by Marceau J.'s reliance on market freedom and private property to infuse the right in question with determinate content, the law governing treaty interpretation excludes from its interpretive horizons native interests in land use and self-government.
C. Recent Developments
The Supreme Court of Canada has since repudiated many of the arguments put forward by Patterson J. in Syliboy, and indicated that the judiciary should not engage in the type of interpretation offered by Culliton C.J.S. in Johnston and Marceau J. in Pawis. In Simon, (199) for example, the appellant was convicted of an offence under Nova Scotia's Lands and Forests Act. (200) The issue before the Court was whether the Treaty of 1752 created a right to hunt so as to preclude the application of the provincial law. Dickson C.J. for the Court stated that Patterson J.'s judgment in Syliboy "reflects the biases and prejudices of another era in our history." (201) He went on to hold that the Treaty of 1752 was validly created by competent parties, that it contained a right to hunt which applied to the appellant's activities in question, and that the treaty had not been terminated by hostilities between the Micmacs and the British in 1753 or by extinguishment through occupancy by nonnatives under Crown grant or lease. He held further that the appellant was an Indian covered by the treaty and that, as a result of s. 88 of the Indian Act, the hunting rights contained in the treaty exempted the appellant from prosecution under the Nova Scotia legislation. Dickson C.J. also affirmed a principle of interpretation which calls for construing treaties "not according to the technical meaning of their words, but in the sense that they would naturally be understood by the Indians." (202) This led him to interpret the Treaty of 1752 as "an effective source of protection of hunting rights," and "sensitive to the evolution of changes in normal hunting practices." (203)
Simon represents a shift in judicial understanding concerning the meaning of treaty guarantees. Dickson C.J.'s judgment challenges the blind acceptance of the legitimacy of Anglo-Canadian public and private law values in the process of determining the meaning of vague treaty rights, and calls for heightened sensitivity to native expectations surrounding the negotiation of a treaty. Simon, however, is ambivalent on the critical question of the extinguishment or regulation of treaty rights. It should be emphasized that the reason offered by Dickson C.J. as to why Nova Scotia's Lands and Forests Act did not apply to the appellant's activities was not because the treaty rights shielded the appellant from provincial regulation, but rather because s. 88 of the federal Indian Act shielded the treaty right from provincial regulation. (204) While stating that he does "not wish to be taken as expressing any view on whether, as a matter of law, treaty rights may be extinguished," (205) Dickson C.J. stated that it "seems appropriate to demand strict proof of the fact of extinguishment in each case where the issue arises." (206) Retaining the possibility of the extinguishment or regulation of treaty rights implies that treaty rights have no more force than contractual guarantees against the Crown, and that legislatures are entitled, within their respective spheres of jurisdiction and subject to paramountcy principles, to pass laws that regulate or extinguish treaty rights should they so desire. Absent the protective shield of s. 88 of the Indian Act, treaty rights would not bind provincial legislatures from passing laws which effected their regulation or extinguishment. Treaty rights can be asserted against valid provincial laws not because they constrict the exercise of legislative authority but because Parliament has stated in s. 88 of the Indian Act that provincial laws of general application shall not infringe treaty guarantees. The legal force of a treaty in the context of a provincial law that threatens its regulation or extinguishment is conditional on the existence of federal legislation. Moreover, there is nothing in s. 88 that provides that treaty rights are paramount over federal legislation, (207) Viewing legislative initiatives as paramount over treaty guarantees has the effect of envisioning treaties as a form of protection against failures by the Crown to provide benefits stipulated in the treaty, and not as a form of protection against valid exercises of legislative authority. Except in the context of a simple failure to act by the Crown, the legal force of a treaty is dependent on the good will of Parliament. (208)
A similar judicial orientation to the legal status and interpretation of treaties is evident in the recent case of Sioui. (209) In Sioui, the respondents were members of the Huron band on the Lorette Indian reserve in Quebec. They were convicted of cutting down trees, camping and making fires in a provincial park, contrary to provincial legislation. (210) They alleged that they were engaged in ancestral customs and religious rites protected by a treaty entered into by the Hurons and the Crown in 1760. Justice Lamer (as he then was) held for the respondents, ruling that the agreement between the Hurons and the Crown constituted a treaty, that the parties thereto were competent to enter into it, that it had not been extinguished, and that the respondents were exempt from the relevant provincial regulations by virtue of s. 88 of the Indian Act. In his analysis of the scope of the right asserted, Lamer J. gave a broad and liberal interpretation of the treaty's provision for "the free Exercise of [the Hurons'] religion, [and] their Customs." (211) Given that there is no mention made in the treaty of the territory over which the treaty rights may be exercised, it was argued that the treaty right did not extend to activities performed in park territory. Lamer J. held that the issue had to be resolved "by determining the intention of the parties ... at the time it was concluded." (212) Sensitive to native expectations as well as those of the English, Lamer J. was of the view that "the rights guaranteed by the treaty could be exercised over the entire territory frequented by the Hurons at the time, so long as the carrying on of the customs and rites is not incompatible with the particular use made by the Crown of this territory." (213) Yet, like Dickson C.J.'s reasons in Simon, and subject to the Court's view on s. 35(1) of the Constitution Act, 1982, (214) Justice Lamer's judgment presumes that a legislature possesses the legislative authority to regulate or extinguish treaty rights. The provincial legislation making it an offence to cut down trees in the park was held inapplicable to the respondents not by virtue of the existence of the treaty right in and of itself but by virtue of its combined effect with s. 88 of the Indian Act. Section 88 was held to protect the treaty from extinguishment by provincial legislation, and Justice Lamer further held that the appellant's arguments that a number of actions by the British Crown constituted extinguishment did not meet the strict burden of proof governing extinguishment as stipulated in Simon.
Both Simon and Sioui indicate a shift in the nature of treaty jurisprudence away from an approach marked by a multiplicity of procedural hurdles and narrow readings of treaty rights as evidenced by the judgments in Pawis and Syliboy. In its place is a set of principles more sensitive to native interests, which call for broad and liberal readings of treaty rights and a relaxation of procedural requirements usually associated with actions in breach of contract. Both judgments heed the expectations of native negotiators at the time the treaty was entered into, and neither relies unduly on Anglo-Canadian values detrimental to native interests when giving meaning to abstract treaty rights. Yet despite a statement by Justice Lamer in Sioui that "[t]he very definition of a treaty ... makes it impossible to avoid the conclusion that a treaty cannot be extinguished without the consent of the Indians concerned," (215) both judgments ultimately rest on the existence of s. 88 of the Indian Act, which legislatively provides that treaty rights will be paramount over conflicting provincial legislation. Parliament has jurisdiction over "Indians, and Lands reserved for the Indians" by virtue of s. 91(24) of the Constitution Act, 1867, which enables it to shield treaty rights from provincial regulation. Federal legislation renders treaty rights paramount over conflicting provincial law; a treaty standing alone is still conceived of as subordinate to legislative authority. It is an open question whether a treaty right would be paramount over conflicting provincial legislation in the absence of s. 88. More importantly, apart from the obiter by Justice Lamer in Sioui, treaty rights are not paramount over federal legislation. Still conceived in contractual terms, treaties are not imagined as binding the legislative authority of Parliament. Subject to the Court's view of s. 35(1) of the Constitution Act, 1982, (216) Parliament remains supreme, and rights stemming from treaties with the Crown are subject to federal legislative interference.
Although Sioui and Simon indicate a significant movement away from traditional judicial methods of treaty interpretation, the shift has not been complete. In Horse v. R., (217) a case decided before Sioui but after Simon, the appellants were charged and convicted of violating provincial game laws for hunting on private farm property. The appellants alleged that they were entitled to engage in the activity in question by virtue of Treaty Six. Though the text of the Treaty supported the Crown's case, in that it provided that the "said Indians shall have the right to pursue their avocations of hunting and fishing throughout the tract surrendered ... saving and excepting such tracts as may from time to time be required or taken up for settlement," (218) the appellants pointed to oral evidence suggesting that they were entitled to hunt on private land subject to the interests of the property holder and with regard to the safety of others. (219) The appellants argued that oral evidence suggested that Treaty Six contemplated that Indians were entitled to hunt over land taken up for settlement under a joint use concept, namely, upon the settlement of these lands, the Indian right to hunt was not extinguished but rather the lands came to be used jointly by the Indian and the settler.
In dismissing the appeal, Estey J. for a unanimous Court had "reservations" about referring to oral evidence given the parole evidence rule that "extrinsic evidence is not to be used in the absence of ambiguity." (220) Paying lip service to Dickson C.J.'s exhortation in Simon that treaties "should be liberally construed and doubtful expressions resolved in favour of the Indian," (221) though not conceding that the text of Treaty Six is ambiguous on the point, Estey J. went on to consider the Morris text, which he claimed "reinforces the conclusion that the argument of the appellant for joint use of lands taken up by settlement must be rejected." (222) Yet when he examined the Morris text, Estey studiously ignored the evidence supportive of the appellant's case, and concentrated instead on parole evidence in relation to three other treaties: Treaties One, Three and Four. Estey J. then argued that during the negotiation of the treaty at issue, Treaty Six, federal negotiators stated that the agreement was analogous to Treaties One, Three and Four. In his view, since in the records of these other negotiations there was no statement made by the Indians expressly requesting the right to hunt on occupied lands, and since federal negotiators indicated that the terms of Treaty Six "were analogous to those of the previous treaties," the conclusion that Treaty Six did not contemplate hunting on occupied lands was "inescapable." (223) He added that the evidence relied on by the appellant "can be read in a manner consistent with the written provision," (224) though he offered no reasons as to why one ought to read the extrinsic evidence in such a manner.
Estey J.'s judgment in Horse is an indication that the shift in interpretive technique advocated by Dickson C.J. in Simon and subsequently adopted by Lamer J. in Sioui has not been complete. Estey J.'s reluctance to consider oral evidence in Horse may have been overcome by Dickson C.J.'s statement in Simon that treaties are to be liberally construed, but his understanding of the text of Treaty Six and his treatment of oral evidence surrounding the treaty's negotiation evoke the interpretive blindness of another era. His refusal to concede that the text of the Treaty does not foreclose hunting on settled lands is a manifestation of an unwillingness to accept the possibility that a surrender of Indian lands can be viewed in nonexclusive terms, namely, as involving an invitation by natives to nonnative people to use the land in question and to assert priority when such use conflicts with Indian interests. Estey J.'s judgment assumes without question the legitimacy of applying traditional Anglo-Canadian assumptions concerning the meaning of surrender in a context where joint use by natives and nonnative people is possible. His stubborn focus on oral evidence surrounding the negotiation of three other treaties and his claim that such evidence supports the view that Treaty Six did not contain the right to hunt on occupied territories, are at best disingenuous arguments and at worst constitute a profoundly disturbing exercise of judicial power. Simply stating that the oral evidence surrounding the negotiation of Treaty Six can be read in a manner consistent with the written guarantee, i.e., in a manner consistent with the conclusion that the Treaty does not include the right to hunt on occupied lands, begs the question whether the written guarantee in fact ought to exclude such activity. It also begs the question whether the oral evidence ought to be read in a manner consistent with such a conclusion. The alternative conclusion, that the oral evidence does support a right to hunt on occupied Crown lands, is not ruled out by the language of the Treaty and can be supported by the oral evidence presented by the appellant. Given that the evidence and the text of the Treaty are ambiguous on the point, why reach the conclusion that the Treaty does not authorize the activity in question? No reasons are offered in this regard, and the failure by Estey J. to offer such reasons indicates a stubborn unwillingness to seriously entertain treaty claims in the face of legislative regulation.
Another case decided after Simon but before Sioui indicates that treaty jurisprudence is caught between two interpretive approaches: the expansive, liberal vision of Simon and Sioui and the narrow, conservative vision of early jurisprudence and Justice Estey in Horse. In Horseman v. R., (225) a member of the Horse Lakes Indian Band shot and killed a grizzly bear in self-defence while lawfully hunting moose under the terms of Treaty Eight and the Alberta Natural Resources Transfer Agreement of 1930. A year later, in need of money to support his family, he obtained a grizzly bear hunting license and sold the hide. When read in conjunction with the Transfer Agreement, the treaty entitled the appellant to hunt for food only, namely, for sustenance for himself or his family, and not for commercial purposes. At the time he shot the grizzly, he was not in possession of a grizzly hunting license. He was subsequently charged with unlawfully trafficking in wildlife, contrary to s. 42 of the Alberta Wildlife Act. (226) The issue facing the Supreme Court of Canada on appeal was whether Horseman could properly be said to have been hunting for food pursuant to Treaty Eight when he killed the bear in self-defence. If so, s. 88 of the Indian Act would shield the appellant from prosecution under s. 42 of the Wildlife Act.
In dismissing Horseman's appeal, Cory J. held that the fact that the bear was killed in self-defence is no defence to the charge of illegally trafficking in bear hides. Reading the treaty right to hunt "for food" as meaning only the right to hunt for direct consumption of the product of the hunt, Cory J. refused to consider a more liberal interpretation of the right to hunt for food, one which would include the right to hunt for support and subsistence and exclude sport or commercial hunting. (227) Cory J. attempted to justify his conclusion by arguing that "if it were permissible to traffic in hides of grizzly bears that were killed in self-defence, then the numbers of bears slain in self-defence could be expected to increase dramatically." (228) If the permission to traffic in bear hides came from a treaty right to engage in commercial hunting, then this might in fact be the case. Yet if the permission to traffic came from a treaty right to hunt for support and sustenance, the number of bears slain in "self-defence" could not be expected to rise dramatically. Justice Cory himself noted the low chances of success on planned bear hunts, a success rate between two and four per cent for a license holder. (229) In any case, there was no question but that the bear was slain in self-defence in the present case. Indeed, as Justice Wilson pointed out in dissent, "it is difficult ... to describe Mr. Horseman's act as 'hunting' at all." (230) Justice Cory's steadfast refusal to interpret the appellant's treaty right to hunt for food as including slightly more than the right to hunt for direct consumption of the product of the hunt indicates a reluctance to embrace the trend begun in Simon and continued in Sioui toward liberal interpretations of treaty guarantees, geared toward native understandings of permissible practice.
D. Summary: Revising Treaty Jurisprudence
Jurisprudence surrounding treaties negotiated between the Crown and native peoples is marked by a well-defined set of principles that speak to the legal status of treaties and the substantive rights established by the treaty-making process. With respect to the former, jurisprudence was originally based on the view that natives were different than, and inferior to, nonnative people. Native people were imagined as not possessing the authority to enter into binding reciprocal arrangements with the Crown. Treaties were imagined as not having the force of law, and amounted to little more than nonbinding political arrangements entered into by the Crown with native people. Eventually, the law came to recognize the legal status of native people to enter into agreements which could be enforced in a court of law, by abandoning the view that native people are different than and inferior to nonnative people. Grounded in connotations of similarity, the enforceability of treaties is currently seen in contractual terms. Native people are imagined as similar to other subjects of the realm, entitled to enter into contractual arrangements with the Crown and sue for noncompliance. Yet, if treaties are imagined as little more than contractual arrangements, their contents will be subject to legislative regulation and extinguishment. At least prior to the passage of s. 35(1) of the Constitution Act, 1982, legislative initiatives were seen as paramount to the terms and conditions of treaties. Under this view, the fact that provincial legislation is rendered inoperative in the context of the successful assertion of a treaty right is not because treaties occupy a higher plane of entitlement than statutory initiatives but rather because federal legislation declares treaty rights to be paramount over provincial legislation. Absent s. 88 of the Indian Act, treaty rights would be subject to the valid exercise of legislative authority by either level of government. Their status with respect to provincial legislation is a function of the good will of Parliament as expressed in s. 88 of the Indian Act, and not because they occupy a special place in Canadian law.
With respect to the way in which the judiciary has interpreted the content of treaty guarantees, the interpretive enterprise was initially characterized by a refusal to treat native expectations differently than nonnative expectations. That is, vague treaty guarantees were infused with substantive meaning by unquestioned reference to a reliance on Anglo-Canadian categories of legal understanding. Notions of private property and freedom of contract guided the judiciary in interpretive movements from abstract treaty rights to concrete applications. The "plain meaning" of vague treaty guarantees was determined by a process which accepted without question the legitimacy of Anglo-Canadian legal categories of understanding. Recently, treaty jurisprudence has come to embrace native difference, with the acknowledgement that native expectations concerning the meaning of treaty entitlements may well have been markedly different than those entertained by the agents of the Crown. The interpretive process still places a high premium on the intent of the parties to the agreement, expanded to incorporate the original expectations of native negotiators. Yet Anglo-Canadian understandings concerning the meaning of land surrenders still permeate jurisprudence surrounding the interpretation of treaties with native people, legitimated by a vision of native people as the same as nonnative people. Treaties that involve the surrender of land in return for certain specified benefits from the Crown are imagined as vesting in the Crown an absolute right to exclude native use and enjoyment of ceded land. Thus a set of assumptions steeped in Anglo-Canadian understandings concerning the ownership and the right of exclusion unquestionably informs treaty jurisprudence, to the detriment of alternative understandings of land surrenders which would acknowledge the possibility of joint use except in the case of actual conflict.
The above jurisprudential traits have the effect of maintaining and perpetuating a hierarchical relationship between native peoples and the Canadian state through the medium of treaty guarantees. Though the extremes of traditional acts of judicial interpretation have been eliminated by the new approach called for by Chief Justice Dickson in Simon, Anglo-Canadian conceptions are still imported into the process of interpreting treaty guarantees in the context of determining the meaning of land surrenders. Moreover, unless the Court holds to the contrary under s. 35(1) of the Constitution Act, 1982, Parliament remains free to regulate or extinguish rights guaranteed by treaties, and in the absence of specific federal legislation to the contrary, provincial legislatures are similarly empowered to regulate and even extinguish treaty rights. The end result is a set of principles that perpetuates a state of legal dependence by native peoples on the legislative good will of the Canadian state and frustrates rather than facilitates the realization of self-government.
If the law governing treaty rights is to further the cause of native self-government, treaties ought to be interpreted as binding on Parliament and provincial legislatures. Justice Lamer's statement in Sioui that "[t]he very definition of a treaty ... makes it impossible to avoid the conclusion that a treaty cannot be extinguished without the consent of the Indians involved" (231) ought to be taken seriously as precedential support for the proposition that federal and provincial legislation is not paramount over conflicting treaty guarantees; promises made to natives by the Crown ought to be imagined as setting the boundaries of permissible legislative activity in the future. Imagining treaties in this way forces reconsideration of traditional understandings of the nature of legislative authority; its end result would be to view treaties entered into by the Crown with native peoples as constitutional documents demarcating permissible and impermissible spheres of legislative authority as it intersects with native interests. Yet treaties ought to be imagined as constitutional documents; they represent historic agreements between Canada's First Nations and settling people as to the use and enjoyment of land and played a critical role in the constitution of Canada.
Moreover, despite their particular differences, treaties share the overarching purpose of protecting forms of native self-government from nonnative interference. Jurisprudence surrounding the interpretation of the substance of treaties ought to accord treaties the type of interpretive respect befitting a constitutional document that has as its purpose the protection of fragile forms of self-government. Although Simon and Sioui do much to reorient the interpretive understanding of treaties in this manner by their acceptance of "liberal and purposive" interpretations of treaty guarantees, treaty jurisprudence should acknowledge that the purpose toward which purposive interpretations of treaty rights ought to be geared is the protection of nascent forms of native self-government. This redefinition of the purposes of treaties ought to redirect the interpretation of the content of treaty guarantees away from the tendency to infuse substantive content by reference to Anglo-Canadian categories of understanding. Again, Simon and Sioui represent bold efforts in this regard, though their success must be tempered in light of Horse and Horseman.
The approaches taken in Simon and Sioui, however, need to be extended to govern understandings of land surrenders. Still viewed through Anglo-Canadian lenses of understanding, provisions governing surrenders are conceptualized as vesting in the Crown an absolute right to dictate the use to which surrendered lands can be put and a corresponding right to exclude native use and enjoyment regardless of the lack of any potential conflict in use engendered by native enjoyment. Justice Lamer's theory of compatibility of use, articulated in Sioui where the treaty at issue did not contemplate land surrender, ought to be extended to govern the meaning of land surrender treaties. That is, a treaty involving the surrender of land by native people should not be viewed as automatically stripping native people of continued use and enjoyment of the land in question. Instead of viewing a surrender as a relinquishment of all native rights to the land, a surrender should be treated as the granting of consent to a system whereby land could be shared by native and nonnative people, with priority of use attaching to one party by virtue of the surrender. Where native people can continue to use the land in a manner that does not threaten the use put to the land by the Crown, then surrender need not foreclose native use and enjoyment. Such an interpretation of land surrender agreements challenges traditional Anglo-Canadian ways of understanding title transfers, yet is critical to the ability of native people to use and enjoy ancestral lands surrendered by treaty to the Crown, which use and enjoyment is intimately connected to the aspiration of native self-government.
V. Aboriginal Rights and the Constitution
Section 35(1) of the Constitution Act, 1982 provides that "[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed." Depending on the meaning given to s. 35(1), the constitutional sphere could serve as a powerful source for the realization of the aspiration of native self-government. Unlike the other areas of law analyzed earlier, the constitutional sphere is one which could facilitate self-government without the need to rearrange basic Anglo-Canadian categories of legal understanding. For years, the judiciary has policed the boundary between federal and provincial jurisdiction. With the advent of the Canadian Charter of Rights and Freedoms, (232) the judiciary is relatively comfortable with the task of striking down legislation that interferes with constitutional rights and freedoms. The idea that laws must conform to basic constitutional principles is no longer alien to the Canadian constitutional imagination. To the extent that self-government requires immunity from legislative action, much of the interpretive work necessary to realize self-government could proceed in the constitutional sphere without upsetting traditional categories of legal understanding.
A. R. v. Sparrow
Although it is too early to define with certainty the traits that characterize constitutional jurisprudence under s. 35(1), there are indications that s. 35(1) may well involve the entrenchment of aspects of a legal relationship of dependence between First Nations and the Canadian state through the medium of constitutional right. In R. v. Sparrow, (233) the Supreme Court of Canada recently had occasion to interpret the scope and meaning of s. 35(1) with respect to its relation to aboriginal rights existing at common law. At issue in Sparrow was the validity of a fishing permit issued under the federal Fisheries Act (234) to the Musqueam Indian band which required members of the band to use a drift net with a maximum length of 25 fathoms. The appellant was apprehended fishing with a net which was 45 fathoms in length. He admitted violating the terms and conditions of the permit but asserted an aboriginal right to fish and that the length restriction in the permit was inconsistent with s. 35(1) and therefore invalid. Prior to the passage of s. 35(1) of the Constitution Act, 1982, the case would have been decided in accordance with the principle articulated in R. v. Derriksan, where the Court held that any aboriginal right to fish is subject to the valid exercise of federal legislative authority. (235) Legislation passed pursuant to a valid head of power, in this case Parliament's authority to pass laws in relation to inland fisheries pursuant to s. 91(12) of the Constitution Act, 1867, can apply so as to regulate common law aboriginal rights. The appellant argued that s. 35(1) "recognized and affirmed" his aboriginal right to fish and as a result shielded him from the application of otherwise valid federal legislation.
In finding for the appellant, Dickson C.J. and La Forest J. set out in broad strokes an approach which no doubt will structure future claims involving s. 35(1). Calling for a "generous, liberal" and "purposive" interpretation of S. 35(1), (236) the two judges analogized to recent jurisprudence surrounding treaties and argued that the content of s. 35 must be sensitive to the interests of native people. They also stated that 35(1) must be interpreted in light of Guerin's requirement that the government "act in a fiduciary capacity with respect to aboriginal peoples." (237) These two guiding principles respectively informed the way in which meaning was given to the scope of s. 35 and the assessment of state initiatives which infringe s. 35 interests. With respect to the former, Dickson C.J. and La Forest J. first ruled that s. 35(1) applies to rights which were in existence when the Constitution Act, 1982 came into effect. Following lower courts on the issue, (238) they held that any aboriginal rights extinguished either by treaty or by legislation cannot be revived by s. 35(1). Secondly, they held that an existing aboriginal right cannot be read so as to incorporate or include the specific manner in which it was regulated before 1982. This holding put to rest a division of opinion between lower courts on the matter. Some courts had held that s. 35(1) protects only the residue of native freedom which remained after accounting for state regulation; (239) such an approach would have the effect of delineating the scope of s. 35(1) by reference to the nature and extent of state regulation of native activity in existence in 1982. Others argued that the right recognized by s. 35(1) is that which is protected by the common law prior to taking into account the existence of state regulation. (240) In siding with the latter approach, Dickson C.J. and La Forest J. made it clear that state regulation of common law aboriginal rights are now subject to constitutional review.
The two judges also found that the Musqueam Indian Band had an aboriginal right to fish, referring to evidence which established that the Musqueam lived on the north shore of the Fraser River as an organized society long before European settlement of surrounding area. Evidence also disclosed that the taking of salmon was an integral part of their lives, being an important source of food and central to the system of ceremony and beliefs of the Salish people, of which the Musqueam were one of several tribes. The appellant was apprehended fishing in ancient tribal territory where his ancestors had fished since "time immemorial." (241) The Court thus eliminated any lingering doubt as to the existence of aboriginal rights at common law, indicating by implication that Calder no longer ought to be interpreted as providing that the common law does not recognize the concept of aboriginal right, (242) In further holding that the aboriginal right to fish had not been extinguished prior to 1982 by state action, the Court reiterated that "the Sovereign's intention [to extinguish] must be clear and plain." (243) Permits issued pursuant to the Fisheries Act "were simply a manner of controlling the fisheries, not defining underlying rights." (244) The Court avoided discussion of whether the Musqueam aboriginal right to fish included a right to fish for commercial purposes, arguing that the case was not presented on the footing of an aboriginal right to fish for commercial or livelihood purposes.
The notion that federal authorities are to act in a fiduciary capacity with respect to native peoples informed the Court's approach with respect to determining whether a particular law or state action infringed s. 35(1) and whether such infringements are constitutionally justifiable. With respect to the question whether s. 35(1) rights had been infringed, the Court was of the view that the presence of a fiduciary relationship entailed asking whether the limitation in question was unreasonable, whether it imposed undue hardship, and whether it denied aboriginal people of the "preferred means" of exercising their right, in sum, "whether either the purpose or the effect of the restriction on net length unnecessarily infringes the interests protected by the fishing right." (245) The fiduciary relationship between the Crown and native people also informed Dickson C.J.'s and La Forest J.'s analysis of the constitutionality of laws which infringed s. 35(1) interests. In their view, such a relationship required that "federal power must be reconciled with federal duty and the best way to achieve that reconciliation is to demand the justification of any governmental regulation that infringes upon or denies aboriginal rights." (246) Thus even though the Constitution Act, 1982 does not state that s. 35(1) rights are subject to s. 1 of the Charter, the Court was willing to embrace a mode of analysis which required the government to "bear the burden of justifying any legislation that has some negative effect on any aboriginal right protected under s. 35(1)." (247) In the event of a s. 35(1) violation, the government would have to demonstrate a valid legislative objective, such as conservation or the prevention of harm to the general populace or aboriginal peoples. Secondly, the government would have to show that "any allocation of priorities after valid conservation measures have been implemented must give top priority" to Indian interests, in this case, fishing interests. (248) The Court also indicated that other cases may require determining whether there has been as little infringement as possible in order to effect the desired result; whether fair compensation has been made available in the event of expropriation; and whether there has been adequate consultation with affected native peoples with respect to the implementation of conservation measures. The Court ordered a retrial to allow for findings of fact to determine whether the net length restriction constituted an infringement of the Musqueam right to fish and, if so, whether such regulation was justifiable according to the above-mentioned tests.
Sparrow represents an ambitious and far-reaching attempt to include the needs and interests of First Nations in the constitutional sphere. The Court interpreted s. 35(1) so as to constitutionalize the protection previously accorded to native peoples under the common law of aboriginal title and as a result subject legislative initiatives which regulate or extinguish common law rights to constitutional scrutiny. By calling for a liberal and purposive interpretation of the scope of s. 35(1) rights, the Court was sensitive to native perspectives on the content of aboriginal rights. By interpreting the phrase "existing aboriginal rights" to refer not to the residue of freedom left over after state regulation is taken into account, the Court ensured that laws which engage in regulation of common law rights are tested against a justificatory standard akin to the tests developed in R. v. Oakes (249) under s. 1 of the Charter.
Though Sparrow strictly speaking was not a case which involved the assertion of treaty rights, there is no reason why a similar approach might not be taken with respect to laws which regulate or extinguish treaty rights. (250) Moreover, by including within the calculus of tests that comprise the justificatory stage of review the need to consult native people affected by state regulation which impairs their interests, the Court in Sparrow offset some of the concerns associated with the proposition that aboriginal rights are not shielded from some forms of state intervention. If the requirement of consultation is deepened and extended in future cases, it could result in a constitutional requirement of an equal partnership between governments and First Nations in the drafting of laws which affect s. 35(1) rights; native consent to laws that affect their interests could become a precondition of constitutionality. Though it is too early to judge the extent to which the judiciary will facilitate the realization of self-government by the invocation of constitutional rights, the Court in Sparrow laid down a framework for the constitutional protection of First Nations interests which is strongly supportive of the active involvement of native people in the formation of laws which govern their lives.
Yet, although the Court ought to be applauded for its display of sensitivity to the interests and needs of First Nations in its emergent constitutional jurisprudence on aboriginal rights, the principles laid down in Sparrow maintain a relationship of legal dependence between native peoples and the Canadian state analogous to that which exists in the other areas of the law canvassed earlier in this article. Underpinning the Court's interpretive understanding of s. 35(1) is the proposition that native people are in a hierarchical relationship with the Crown, albeit tempered by the attachment of fiduciary obligations to the Crown upon the exercise of its discretion. The way in which the Court invoked the proposition that the Crown is under a fiduciary obligation toward native peoples permitted the Court to take a deferential stance with respect to laws that potentially infringe s. 35(1) interests. That is, in order to show an infringement of s. 35(1) interests, a plaintiff will have to demonstrate that state regulation of those interests is "unreasonable" and constitutes "undue hardship." (251) The application of a reasonableness standard to the initial stage of determining whether a violation of s. 35(1) has occurred injects considerations which ought to be extraneous to this aspect of the constitutional inquiry. Whether a particular infringement is unreasonable has little to do with the fact that it infringes on s. 35(1) interests. Applying a reasonableness standard to the determination whether a particular law infringes aboriginal rights inevitably leads the judiciary into an assessment of the reasons for the legislative initiative. The content of s. 35(1) rights becomes dependent in part on the legislative purpose and effect of laws which affect the interests that the right is designed to protect. The inclusion of a reasonableness standard at this stage of the inquiry indicates that the Court is willing to defer to a certain extent to the state's assessment of what is or is not in the interests of First Nations. The scope of aboriginal rights remains dependent upon the actions of those institutions against which First Nations ought to receive constitutional protection. The Court's reliance on the idea that the Crown bears fiduciary responsibilities toward native peoples to support a reasonableness standard indicates that the Court is not willing to move away from a hierarchical vision of the relationship between First Nations and the Canadian state in the realm of constitutional jurisprudence.
Moreover, underlying the Court's reasons in Sparrow is the assumption that Canada enjoys sovereign authority over its indigenous population. Laws limiting the exercise of rights protected by s. 35(1) will undergo judicial scrutiny to ensure that they further a valid legislative objective and accord priority to whatever native interests remain after the implementation of means necessary to achieve such an objective. Yet the Court does not question Parliament's ultimate jurisdiction over Canada's First Nations; it only requires that the exercise of legislative authority meet constitutional standards of justification. As stated by Chief Justice Dickson and Justice La Forest, "[i]t is worth recalling that while British policy towards the native population was based on respect for their right to occupy their traditional lands, ... there was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, to such lands vested in the Crown." (252) This reiteration of legislative supremacy indicates that the judiciary is content to assume the legitimacy of the assertion of sovereignty by the discovering nations over the indigenous population at the time of settlement. The hierarchical relationship between First Nations and Canadian legislatures that emerged as a result of the assertion of sovereignty, ultimately underpinning jurisprudence on the distribution of legislative authority, has been tempered, but not displaced, by the interpretation given to s. 35(1). Parliament continues to possess the authority to pass laws regulating native life, so long as it meets the justificatory standards articulated in Sparrow. Absent is any consideration of the possibility that the doctrine of discovery, steeped as it is in notions of native inferiority, is an illegitimate basis for the continued assertion of Canadian sovereignty over the lives of native peoples. Native difference continues to be the justification for treating native people the same as normative people, namely, ultimately as subjects of the Crown.
B. Constitutional Recognition of Self-Government
Subsequent jurisprudence under s. 35(1) ought to extend the principles articulated by Dickson C.J. and LaForest J. in Sparrow to provide for more powerful protection of native interests. Section 35(1) ought to be viewed as constitutional recognition of the aspiration of native self-government. Securing self-government through the medium of constitutional right entails the rejection of an approach which includes reasons for state regulation in the definition of the content of s. 35(1). It also entails rejecting the automatic assumption that Parliament has the authority to regulate native life so long as it conforms to acceptable regulatory techniques. Instead, it requires reading s. 35(1) as affirming a sphere of autonomy for native people over those matters that are central to their individual and collective self-definition. Section 35(1), in other words, ought to be viewed as authorizing and indeed requiring the judiciary to assess the legitimacy of the assertion of Canadian sovereignty over Canada's First Nations. Unless and until the law can generate justifications more acceptable than those relied on by Chief Justice Marshall in Johnson v. M'Intosh for the continued assertion of territorial sovereignty over Canada's indigenous population, the judiciary ought to police the borders of Canadian and First Nation sovereignty. Section 35(1) ought to be the vehicle through which matters central to the individual and collective self-definition of native peoples are shielded from legislative intrusion.
It may well have been the case that, prior to 1982, it would have been inappropriate for the judiciary to second-guess the legitimacy of the assertion of Canadian sovereignty over Canada's native peoples. Although there is nothing in the text of the Constitution Act, 1867 dictating the conclusion that Canada possesses jurisdiction to pass laws affecting its indigenous population absent consent, and ss. 91 and 92 of the Constitution Act, 1867 could have been interpreted in the manner proposed in Part III of this article, (253) courts have been loath to assess the legitimacy of claims of sovereignty made by their parent states. Known in law as the "act of state" doctrine, courts have traditionally imagined executive and legislative action in relation to the acquisition of new territory to fall outside the purview of domestic courts. (254) Whatever may have been the case prior to 1982, however, the passage of s. 35(1) of the Constitution Act, 1982 dramatically changes the role of the judiciary as it relates to the legal and constitutional position of Canada's First Nations. Section 35(1) expressly "recognize[s] and affirm[s]" aboriginal and treaty rights of Canada's indigenous population. The content of those rights is directly dependent upon a judicial assessment of the legitimacy of the assertion of territorial sovereignty by European nations at the time of European settlement; Canadian sovereignty over its indigenous population is now a question for domestic constitutional law. Whether or not s. 35(1) shields native forms of life from federal or provincial intrusion depends on the legitimacy of the claim that territorial sovereignty can be asserted by the settling nation without resort to conquest or cession as against an indigenous population. Section 35(1) thus requires the judiciary to assess the legitimacy of this claim; it subjects "acts of state" against Canada's indigenous population to constitutional scrutiny. Section 35(1), in other words, recognizes and affirms existing aboriginal and treaty rights; Parliament and provincial legislatures cannot assume that they are entitled to regulate those rights absent consent if the claim of sovereignty underlying legislative action is suspect. Given that s. 35(1) requires the judiciary to give meaning to aboriginal and treaty rights, the judiciary can no longer shirk the task of assessing the legitimacy of the claim. For courts to invoke the "act of state" doctrine in such a context would be, in Brian Slattery's words, to "conced[e] their status as passive instruments of colonial rule." (255)
Questioning the legitimacy of the claim of territorial sovereignty need not be an "all-or-nothing" affair. It may well be that Canada ought to be able to claim sovereign authority over its indigenous population in relation to some matters but not in relation to others, just as traditional constitutional principles governing the distribution of legislative power recognize that Parliament and provincial legislatures possess legislative authority in relation to different subject-matters. At this stage in s. 35(1)jurisprudence, the issue is not so much where the judiciary ought to draw the line but simply that s. 35(1) requires one to be drawn. As stated in Part III of this article, the judiciary already possesses a technique capable of performing this task: current jurisprudence on the limits of provincial jurisdiction over native people can be deepened to protect native self-identity from federal or provincial intrusion. (256) No doubt conflict will arise from the constitutional embrace of the fact that native peoples possess "multiple loyalties;" (257) multiple loyalties often collide. Yet the threat of possible collision in some cases should not stand as a reason against the establishment of institutional spaces that would permit greater control by native people over their individual and collective destinies. By taking on the twin tasks of assessing the circumstances in which Canadian sovereignty is justified and assisting in the formation of self-governing institutions for native peoples, the judiciary could begin to redress the individual and collective damage caused to Canada's First Nations by the continued invocation of Anglo-Canadian legal categories to resolve relations between native people and the Canadian state.
Despite moments of accommodation, the law governing native peoples has been resistant to the aspiration of native peoples to have more control of their individual and collective destinies. The common law of aboriginal title recognizes a limited property interest in ancestral lands. Treaty jurisprudence reduces treaties entered into by native people and the Crown to little more than contractual arrangements. The law governing the distribution of authority and jurisprudence under s. 35(1) of the Constitution Act, 1982 assume without question legislative supremacy over First Nations. Each frame of reference utilized by the law to structure and make sense of native disputes involves the imposition of Anglo-Canadian legal categories of understanding onto native reality. The common law of aboriginal title unquestionably accepts the myth of underlying Crown title. The law governing the distribution of authority over native people assumes that there is no sphere of activity immune from state regulation. Treaty jurisprudence assumes the legitimacy of legislative supremacy over treaty guarantees. Jurisprudence under s. 35(1) equally rests on fundamental assumptions concerning the nature of constitutional right. These ways of legal knowing are projected onto the native context by a rhetoric that denies and embraces native difference. Native difference is denied where its embrace would render problematic current ways of knowing. Native difference is embraced where its denial would achieve similar results. As a consequence, each frame of reference utilized by the law to structure and make sense of native disputes perpetuates a legal relationship of dependence by native people on the Canadian state.
Despite the law's historic resistance to the aspiration of self-government by Canada's First Nations, it would be a mistake to suggest that the legal system is solely responsible for the appalling socio-economic conditions into which native people are born in Canada, as indicated by the statistics listed in the introduction to this article. The relationship between law and the socio-economic conditions of native people is far too complex to be reduced to a simple relation of cause and effect. In addition to legal practices, provincial and federal inaction, economic imperatives, ideological factors, as well as the inertia of history, all conspire among themselves to thwart the desire to pin responsibility for the lack of control which native people have over their lives on any one single factor. Law is but one factor among many which participates in the construction and maintenance of native reality. Yet even if law is but partially responsible for the current status of native people, this fact alone ought to be sufficient justification for re-imagining law's relation to Canada's First Nations.
The complexity of causality with respect to the conditions of native life, however, has certain implications for the design of a legal reform agenda aimed at vesting Canada's First Nations with more control over their individual and collective destinies. On the one hand, the fact that legal relations are but one of many factors working to maintain native socio-economic reality adds a dash of realism to the possibility that legal change alone can ameliorate the lives of native people. In fact, a sole emphasis on legal reform may frustrate attempts to improve the concrete lives of native people, in so far as it may serve to obscure equally fundamental forces that maintain native inequality. What is needed is an all-encompassing set of parallel reforms at a variety of levels in Canadian society, including changes in relatively specific institutional arrangements such as fiscal policy, (258) education policy, (259) health care, (260) child welfare, (261) policing, (262) criminal justice, (263) resource management, (264) and economic development on native land, (265) as well as transformations of more amorphous phenomena such as political responsibilities toward native people and the way in which nonnative people view their relationship to, and responsibility for, the present conditions of native life. (266)
On the other hand, the fact that law is not solely responsible for the current conditions of native life makes the task of legal reform less daunting than it might otherwise appear. It is possible for the law to reform itself so as to become an instrument of native empowerment and at the same time avoid fears typically triggered by more radical clarion calls for fundamental transformation. Despite its structural resistance to self-government for Canada's First Nations, the legal imagination contains moments of possibility that could facilitate the realization of native self-government. The Marshall legacy in the common law of aboriginal title contains the seeds of a doctrinal approach to the nature and scope of native proprietary interests in ancestral and reserve lands which respects the fact of original occupation. The law governing the distribution of authority contains an interpretive approach with respect to the applicability of provincial laws of general application that could be extended to all forms of state regulation so as to carve out a sphere of activity immune from legislative intervention in which forms of native self-government could take root and flourish. Treaty jurisprudence ought to be refashioned so as to reconceptualize the purpose of treaties to be the protection of particular forms of self-government, and the broad and purposive method of interpretation currently accepted by the judiciary ought to be redirected so as to conform to such a purpose. Constitutional jurisprudence ought to deepen the requirement that native people be consulted in the formation of laws that affect their individual and collective identities so that native consultation and consent become preconditions of the constitutionality of laws that regulate native forms of life.
Reshaping the law's relation to native people requires questioning traditional Anglo-Canadian ways of understanding the world in which we live. Property law, resting on the assumption of underlying Crown title, thwarts the aspiration of native self-government from the outset by the unquestioned acceptance of a category of understanding antithetical to the desire of native people to have more control over their individual and collective destinies as those destinies relate to the lands upon which they live. The law governing the distribution of authority assumes rather than justifies the assertion of sovereignty over Canada's First Nations. Treaty jurisprudence rests on contractualist notions and severely limits the possibility of treaties entered into by native people and the Crown to serve as instruments of native self-government. Constitutional jurisprudence entrenches a relationship of hierarchy between native people and the Canadian state by its reliance on the proposition that native people are subject to the discretion of the Crown's authority, albeit tempered by the attachment of a fiduciary obligation. Yet these ways of legal understanding must be challenged and reshaped if the law is to assist in the empowerment of Canada's First Nations. The borders of the Canadian legal imagination must be redrawn so as to include the aspiration of native people to have greater control over their individual and collective destinies. Our home and native land deserves no less.
(1) use the terms "First Nations," "aboriginal peoples," "indigenous population," "native peoples," "native people," and "Indian" interchangeably to refer to descendants of the original inhabitants of the North American continent, including people of Inuit and Metis descent.
(2) See, generally, Royal Commission on the Donald Marshall, Jr., Prosecution (Halifax: Queen's Printer, 1989); see also M. Harris, Justice Denied: The Law versus Donald Marshall (Toronto: Macmillan, 1986). For a summary of the Commission's recommendations, see infra, note 263.
(3) See, generally, L. Priest, Conspiracy of Silence (Toronto: McClelland and Stewart, 1989).
(4) The [Toronto] Globe and Mail (11 September 1989) A13.
(5) See, generally, B. Richardson, "The Lubicon of Northern Alberta" in B. Richardson, ed., Drumbeat: Anger and Renewal in Indian Country (Toronto: Summerhill, 1989) 229.
(6) See B. Hodgins & J. Benidickson, The Temagami Experience: Recreation, Resources, and Aboriginal Rights in the Northern Ontario Wilderness (Toronto: University of Toronto Press, 1989).
(7) The [Toronto] Globe and Mail (12 July 1990) A1.
(8) The [Toronto] Globe and Mail (25 July 1989) A7.
(9) The Lubicon Lake Band v. Canada, UN HRC, 38th Sess., CCPR/C]38]D/167/1984 (26 March 1990).
(10) R.S.C. 1985, c. I-5 [hereinafter Indian Act]; previously R.S.C. 1952, c. 149.
(11) The "White Paper" proposed the repeal of the Indian Act, the amendment of s. 91(24) of the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3 [hereinafter Constitution Act, 1867], the elimination of the Department of Indian Affairs, the transfer of responsibilities over Indian programmes to the provinces, the granting of fee simple title to native people with respect to reserve land, and the temporary provision of funds for economic and cultural development. See Department of Indian Affairs and Northern Development, Statement of the Government of Canada on Indian Policy, 1969 (Ottawa: Queen's Printer, 1969). For an analysis of the White Paper and subsequent developments, see R. Gibbins & J.R. Ponting, eds, Out of Irrelevance: A Socio-political Introduction to Indian Affairs in Canada (Toronto: Butterworths, 1980); and S.M. Weaver, Making Canadian Indian Policy: The Hidden Agenda 1968-1970 (Toronto: University of Toronto Press, 1981).
(12) Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.) 1982, c. 11 [hereinafter Constitution Act, 1982]. Even this success was a partial victory. The original proposal would have guaranteed "aboriginal and treaty rights." Traded away in the bargaining which secured the consent of nine provinces to the 1982 Constitutional Accord, the guarantee was re-inserted after public protest with the addition of the term "existing." See, generally, D.E. Sanders, "The Indian Lobby" in K. Banting & R. Simeon, eds, And No One Cheered: Federalism, Democracy and the Constitution Act (Toronto: Methuen, 1983) 301.
(13) The 1983 First Ministers Conference on Aboriginal Affairs resulted in the Constitution Amendment Proclamation, 1983, SI/84-102, which defines "treaty rights" referred to in ss. 25 and 35(1) of the Constitution Act, 1982 as including rights that native people may have or will acquire in the future by way of land claims agreements, and provides that aboriginal representatives participate in any future discussions concerning constitutional amendments that directly affect native people. The 1984 First Ministers Conference resulted only in a federal statement of principles approving native self-government in principle. Two other First Ministers Conferences were held in 1985 and 1987. In all four Conferences, the parties failed to obtain the consent from seven provinces representing 50% of the population as required by s. 38 of the Constitution Act, 1982 necessary for the entrenchment of the principle of native self-government. For accounts of the above constitutional negotiations, see D.C. Hawkes, Aboriginal Peoples and Constitutional Reform: What Have we Learned? (Kingston: Institute of Intergovernmental Relations, Queen's University, 1989); and B. Schwartz, First Principles, Second Thoughts: Aboriginal Peoples, Constitutional Reform and Canadian Statecraft (Montreal: Institute for Research on Public Policy, 1986).
(14) D.J. Purich, "Meech Lake and Canada's Aboriginal Peoples" in J.D. Whyte & I. Peach, eds, Re-Forming Canada? The Meaning of the Meech Lake Accord and the Free Trade Agreement for the Canadian State (Kingston: Institute of Intergovernmental Relations, Queen's University, 1989) 75 at 77-79. Purich argues that the Meech Lake Accord would have disadvantaged native people because provinces would have had a greater voice over native affairs in that they would have: (1) been able to opt out of federal programs, subject only to the vague promise that they provide a program "compatible with national objectives;" (2) had more of a say in the composition of the Supreme Court of Canada; and (3) had greater control over the creation of new provinces. Others criticize the proposed recognition of Quebec as a distinct society and the exclusion of any reference to First Nations as fundamental to Canada's self-definition: see G. Erasmus, "Native Rights" in R. Gibbins, ed., Meech Lake and Canada: Perspectives From the West (Edmonton: Academic Printing & Publishing, 1988) 179; J.E. Chamberiin, "Aboriginal Rights and the Meech Lake Accord'" in K. Swinton & C.J. Rogerson, eds, Competing Constitutional Visions: The Meech Lake Accord (Toronto: Carswell, 1988) 12 [hereinafter Competing Constitutional Visions]; J. Bakan & D. Pinard, "Getting to the Bottom of Meech Lake: A Discussion of Some Recent Writings on the 1987 Constitutional Accord" (1989) 21 Ottawa L. Rev. 247 at 252-59; A.C. Cairns, "The Limited Constitutional Vision of Meech Lake" in Competing Constitutional Visions, supra, 247.
(15) A.J. Siggner, "The Socio-Demographic Conditions of Registered Indians" in J.R. Ponting, ed., Arduous Journey: Canadian Indians and Decolonization (Toronto: McClelland & Stewart, 1986) 57.
(16) Ibid. The annual overall death rate for native people is 9/1000, 1.5 times higher than the nonnative rate of 6.6/1000: The [Toronto] Globe and Mail (22 December 1989) A12, quoting Statistics Canada.
(17) Supra, note 15.
(18) C. Pitcher LaPrairie, "Selected Criminal Justice and Socio-Demographic Data on Native Women" (1984) 26 Can. J. Crim. 161 at 162.
(19) Correctional Services Canada, Native Population Profile Report 09/30/87 (Ottawa: Management Information Services, 1987).
(20) Supra, note 15. These figures were unchanged as of 1988; see Canada, Basic Departmental Data (Ottawa: Indian and Northern Affairs, 1988).
(21) Census of Canada, 1981.
(22) Supra, note 15.
(23) I choose "self-government" instead of "self-determination" to refer to the aspiration of native people to have greater control over their destiny partly because the phrase "self-government" does not carry with it the connotations of statehood, political separation and independence associated with self-determination and partly because I hope for its realization through domestic, as opposed to international, law. Yet the type of self-government envisioned in this article is one that involves the transformation of the state structure in which the claim for self-government is made. It therefore straddles (1) traditional notions of self-government as a form of political autonomy within a pre-existing state structure and (2) traditional notions of self-determination as a form of political autonomy existing outside a pre-existing state structure. For scepticism over the right of self-determination serving as a positive feature of statehood, see R. Emerson, "Self-Determination" (1971) 65 Am. J. Int'l L. 459; for the view that "self-determination" can only be imbued with meaning by reference to specific historical contexts, see E.M. Morgan, "The Imagery and Meaning of Self-Determination" (1988) 20 N.Y.U.J. Int'l L. & Pol. 355.
(24) S.M. Weaver, "Indian Government: A Concept in Need of Definition" in L. Little Bear, M. Boldt & J.A. Long, eds, Pathways to Self-Determination: Canadian Indians and the Canadian State, (Toronto: University of Toronto Press, 1984) 65.
(25) Canada, First Ministers' Conference on Aboriginal Constitutional Matters, Unofficial and Unverified Verbatim Transcript, 15 March 1983, vol. 1, at 130, as quoted in M. Asch, Home and Native Land: Aboriginal Rights and the Canadian Constitution (Toronto: Methuen, 1984) at 27.
(26) First Minister's Conference on Aboriginal Constitutional Matters, ibid. at 134 as quoted in Asch, ibid. at 28.
(27) See, e.g., Hamlet of Baker Lake v. Minister of Indian Affairs and Northern Development (1979),  1 F.C. 518, 107 D.L.R. (3d) 513 (F.C.T.D.) (common law aboriginal title includes right to hunt and fish); Agreement between the Queen in Right of Manitoba, the Manitoba Hydro-Electric Board, the Northern Flood Committee, and the Queen in Right of Canada as Represented by the Minister of Indian and Northern Development (1977) (contractual agreement governing economic development on native land and inter alia the use of labour); Saanichton Marina Ltd. v. Claxton (1989), 36 B.C.L.R. (2d) 79, 57 D.L.R. (4th) 161 (B.C.C.A.) (treaty guarantees right to access and control fishery); Indian Act, ss. 81, 83 (statutory grant of bylaw-making power to bands to exercise authority over quasi-governmental matters pertaining to reserve land); Sechelt Indian Band Self-Government Act, S.C. 1986, c. 27 (legislatively delegated powers resulting in municipal style of government for native band); R. v. Sparrow,  1 S.C.R. 1075, 70 D.L.R. (4th) 385 [hereinafter Sparrow cited to S.C.R.] (s. 35(1) of Constitution Act, 1982 protects right to fish); The Lubicon Lake Band v. Canada, supra, note 9 (art. 28 of the International Covenant on Civil and Political Rights protects aspects of life and culture of Lubicon Lake Band).
(28) I borrow from J.R. Ponting & R. Gibbins, "Thorns in the Bed of Roses: A Socio-political View of the Problems of Indian Government" in Pathways to Self-Determination, supra, note 24 at 122-23.
(29) It has been estimated that 30% of the approximately 350,000 status Indians live off-reserve, primarily in urban centres. Estimates of the Metis and nonstatus Indian population, which does not have an identifiable land base, run from 280,000 to 750,000 people. See W.J. Reeves, "Native 'Societies': The Professions as a Model of Self-Determination for Urban Natives" in Arduous Journey: Canadian Indians and Decolonization, supra, note 15, 342 at 344.
(30) A.C. Cairns, "Aboriginal Self-Government and Citizenship" (Address to the University of Toronto Legal Theory Workshop, 24 April 1987) at 20 [unpublished]. The relationship between First Nations self-government and ongoing Canadian citizenship for native people involves a complex set of issues revolving around potential conflicts between the native aspiration of autonomy and Canadian attributes of citizenship, such as adherence to norms of equality and liberty. Do Canadian values of sexual equality, for example, "trump" the value of natives deciding among themselves how to organize gender relations in their societies? For an excellent account of the history of legislative discrimination between native men and native women and the politics that ensued as a result of legal action, see K. Jamieson, "Sex Discrimination and the Indian Act" in Arduous Journey, Canadian Indians and Decolonization, ibid. See also A.G. Canada v. Lavell (1973), 38 D.L.R. (3d) 481 (S.C.C.) (statutory provisions that discriminate on the basis of sex in relation to band membership do not infringe Canadian Bill of Rights, S.C. 1960, c. 44, guarantee of equality before the law); Lovelace v. Canada, 36 UN GOAR Supp. (No. 40) Annex XVIII, U.N. Doc. A/36/40 (1981) (statutory provisions that discriminate on the basis of sex in relation to band membership infringe International Covenant on Civil and Political Rights). Questions surrounding the relationship between native self-government and ongoing Canadian citizenship speak to the limits of self-government, not its desirability, and ought to be addressed in the context of specific disputes and preferably once institutional structures of native self-government are in place. See infra, text accompanying notes 257-58.
(31) See M. Boldt & J.A. Long, "Native Indian Self-Government: Instrument of Autonomy or Assimilation?" in M. Boldt & J.A. Long, eds, Governments in Conflict? Provinces and Indian Nations in Canada (Toronto: University of Toronto Press, 1988) 38 at 54 [hereinafter Governments in Conflict?] ("the challenge of the future is to transform existing institutions from Euro-Canadian models to models compatible with Indian cultural values"); H. Cardinal, "Indian Nations and Constitutional Change" in Governments in Conflict?, supra, 83 at 85 ("we have different positions, different perspectives; not because brown people cannot agree with one another, but because each group traces a different historical evolution in their relationship to other peoples in this country"). See also F. Cassidy, "Aboriginal Self-Government: Defining a Research Agenda" (Address to the National Symposium on Aboriginal Self-Determination, Toronto, 3 October 1990) at 2 [unpublished] ("[t]he study of aboriginal governments should not turn into one more effort to impose a non-indigenous outlook on Canada's indigenous First Nations").
(32) In formulating this aspect of the thesis, I have benefitted from and adapted insights of recent feminist scholarship on the way in which the law and society historically has imagined women as both similar to and different than men. Works that I found helpful include N. Duclos, "Lessons of Difference: Feminist Theory on Cultural Diversity" (1990) 38 Buffalo L. Rew 325; B. Cossman, "A Matter of Difference: Domestic Contracts and Gender Equality" (1990) 28 Osgoode Hall L.J. 303; C.A. MacKinnon, Toward a Feminist Theory of the State (Cambridge: Harvard University Press, 1989); Z. Eisenstein, The Female Body and the Law (Berkeley: University of California Press, 1988); M. Minow, "The Supreme Court 1986 Term--Foreword: Justice Engendered" (1987) 101 Harv. L. Rev. 10; B. Johnson, A World of Difference (Baltimore: Johns Hopkins University Press, 1987); N.C. Sheppard, "Equality, Ideology and Oppression: Women and the Canadian Charter of Rights and Freedoms" in C. Boyle et al., eds, Charterwatch: Reflections on Equality (Toronto: Carswell, 1986); J. Feral, "The Powers of Difference" in Z. Eisenstein & A. Jardine, eds, The Future of Difference (New Brunswick: Rutgers University Press, 1985) 88; G. Greene & C. Kahn, "Feminist Scholarship and the Social Construction of Women" in G. Greene & C. Kahn, eds, Making a Difference: Feminist Literary Criticism (London: Methuen, 1985) 1.
(33) The meaning accorded to these terms is discussed in Part V. See infra, text accompanying notes 236-240.
(34) See "Meech Lake and Canada's Aboriginal Peoples," supra, note 14.
(35)  2 S.C.R. 335, 13 D.LR. (4th) 321 [hereinafter Guerin cited to S.C.R.]. See infra, notes 104-12 and accompanying text.
(36) Classic legal realist texts include F. Cohen, "'Transcendental Nonsense and the Functional Approach" (1935) 35 Columbia L. Rev. 809; M. Cohen, "Property and Sovereignty" (1927) 13 Cornell L.Q. 8; and R. Hale, "Coercion and Distribution in a Supposedly Non-Coercive State" (1923) 38 Pol. Sci. Q. 470. For analysis, see J. Singer, "Legal Realism Now" (1988) 76 Cal. L. Rev. 465.
(37) See, e.g., R. Gordon, "Critical Legal Histories" (1984) 36 Stanford L. Rev. 57; G.E. Frog, "The Ideology of Bureaucracy in American Law" (1984) 97 Harv. L. Rev. 1276; R. Unger, "The Critical Legal Studies Movement" (1983) 96 Harv. L. Rev. 561; D. Kennedy, "The Structure of Blackstone's Commentaries" (1979) 28 Buffalo L. Rev. 205; K. Klare, "Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937-1941" (1978) 62 Minn. L. Rev. 265.
(38) See J. Frug, "Argument as Character" (1988) 40 Stanford L. Rev. 869.
(39) See E.V. Spelman, Inessential Woman: Problems of Exclusion in Feminist Thought (Boston: Beacon Press, 1988) at 11 ("assertion of difference and denial of difference can operate on behalf of domination").
(40) See A.D. McMillan, Native Peoples and Cultures of Canada: An Anthropological Overview (Toronto: Douglas & McIntyre, 1988) at 19-30, and sources cited therein. For comprehensive texts tracking the development of relations between natives and European settlers, see J.R. Miller, Skyscrapers Hide the Heavens: A History of Indian-White Relations in Canada (Toronto: University of Toronto Press, 1989); and B.G. Trigger, Natives and Newcomers: Canada's "Heroic Age" Reconsidered (Kingston: McGill-Queen's University Press, 1985).
(41) F. Plain, "A Treatise on the Rights of the Aboriginal Peoples of the Continent of North America" in M. Boldt & J.A. Long, eds, The Quest far Justice: Aboriginal Peoples and Aboriginal Rights (Toronto: University of Toronto Press, 1985) 34.
(42) L. Little Bear, "'Aboriginal Rights and the Canadian 'Grundnorm'"
in Arduous Journey: Canadian Indians and Decolonization, supra, note 15, 243 at 245.
(43) See Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) [hereinafter Worcester]; Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823) [hereinafter Johnson]; Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810). For commentary, see F. Cohen, "Original Indian Title" (1947) 32 Minn. L. Rev. 28; H.R. Berman, "The Concept of Aboriginal Rights in the Early Legal History of the United States" (1978) 27 Buffalo L. Rev. 637; W. Walters, "Review Essay: Preemption, Tribal Sovereignty, and Worcester v. Georgia" (1983) 62 Oregon L. Rev. 127; and C. Wilkinson, American Indians, Time, and the Law (New Haven: Yale University Press, 1987).
(45) Supra, note 43.
(46) Ibid. Marshall C.J. stated, at 139:
[T]he estate having passed into the hands of a purchaser for a valuable consideration, without notice, the state of Georgia was restrained, either by general principles which are common to our free institutions, or by the particular provisions of the constitution of the United States, from passing a law whereby the estate of the plaintiff in the premises so purchased could be constitutionally and legally impaired and rendered null and void.
(47) Ibid. at 142-43.
(48) Ibid. at 146.
(49) Supra, note 43.
(50) "Sovereignty" and "title" are used interchangeably in international law discourse to refer to the totality of international rights and duties recognized by international law that accompanies statehood: see, generally, M.M. Whiteman, vol. I, Digest of International Law (Washington: Department of State Publications, 1963) 233. "Title" in the international law sense should not be confused with "title" in English law governing ownership of real property. As will become apparent, sovereignty over a particular territory does not necessarily vest title to the land in the sovereign authority. Title to land is determined not by international law principles but by reference to the relevant domestic laws governing property ownership. To keep these concepts separate, I will use the term "sovereignty" to denote the totality of powers that a state possesses under international law, and "title" to refer to the ownership of real property under domestic property law.
(51) Some have argued that discovery alone, or discovery accompanied by symbolic acts of the assertion of sovereignty, was sufficient to establish territorial sovereignty over unoccupied land: see A.S. Keller, O.J. Lissitzyn & F.J. Mann, Creation of Rights of Sovereignty Through Symbolic: Acts, 1400-1800 (New York: Columbia University Press, 1938); others have argued that effective occupation was also required: see R.Y. Jennings, The Acquisition of Territory in International Law (Manchester: Manchester University Press, 1963).
(52) See, generally, I. Brownlie, Principles of Public International Law, 4th ed. (Oxford: Clarendon Press, 1990) at 127-71.
(53) Scholars disagree over the extent of political organization necessary to exclude the doctrine of discovery. The early view appears to have required a certain degree of "civilization"; see, for example, L. Oppenheim, ed., The Collected Papers of John Westlake on Public International Law (Cambridge: Cambridge University Press, 1914) at 145 (requiring "a native government capable of controlling white men or under which white civilization can exist"). Recent scholarship and caselaw suggest that the presence of nomadic tribes with some degree of political and social organization will preclude a territory from being regarded as terra nullius. See, for example, J. Crawford, The Creation of States in International Law (Oxford: Clarendon Press, 1979) at 176-81; and Western Sahara Case,  I.C.J. Rep. 12 at 38-40.
(54) See R.A. Williams, The American Indian in Western Legal Thought: The Discourses of Conquest (New York: Oxford University Press, 1990).
(55) Supra, note 43 at 587.
(56) Ibid. at 585.
(57) Ibid. at 577.
(58) Ibid. at 573.
(59) Ibid. at 589.
(60) English law, for example, provided that local laws, except in the case of incompatibility with the change of sovereignty or subsequent legislative developments, remain in force: see, e.g., Blankard v. Galdy (1693), Holt K.B. 341; see generally K. McNeil, Common Law Aboriginal Title (Oxford: Clarendon Press, 1989) at 110-16 and sources cited therein; and B. Slattery, "The Independence of Canada" (1983) 5 Sup. Ct L. Rev. 369 at 384-90.
(61) Johnson, supra, note 43, at 590.
(62) Ibid. at 591.
(63) Ibid. at 591.
(64) Ibid. at 573.
(65) Ibid. at 574.
(66) See also infra, notes 118-20 and accompanying text.
(67) Marshall C.J., for example, states:
If the discovery be made, and possession of the country be taken, under the authority of an existing government, which is acknowledged by the emigrants, it is supposed to be equally well settled, that the discovery is made for the whole nation, that the country becomes a part of the nation, and that the vacant soil is to be disposed of by that ocean of government which has the constitutional power to dispose of the national domains, by that organ in which all vacant territory is vested by law (emphasis added, Johnson, supra, note 43 at 595).
(68) Others have made this point as well. See McNeil, supra, note 60 at 228-29 & 245-46; Berman, supra, note 43. See also Johnson J.'s dissent in Fletcher v. Peck, supra, note 43 at 147 ("All the restrictions upon the right of soil in the Indians, amount only to an exclusion of all other competitors from their markets").
(69) Supra, note 43 at 595.
(70) Ibid. at 596.
(71) Ibid. at 588.
(73) Supra, note 43.
(74) Ibid. at 543.
(75) Reprinted in R.S.C. 1985, App. II, No. I [hereinafter Royal Proclamation]. The Royal Proclamation asserted sovereignty over territory claimed by Britain, and prohibited the granting of unceded Indian lands by colonial governments, the settlement of unceded Indian lands by British subjects, and the purchase of unceded Indian lands by private individuals. The Proclamation also established a system of public purchases for the extinguishment of Indian title. For analysis and commentary, see B. Slattery, "The Hidden Constitution: Aboriginal Rights in Canada" (1984) 32 Am. J. Camp. Law 361 at 368 72; G.S. Lester, The Territorial Rights of the Inuit of the Canadian Northwest Territories: A Legal Argument (D. Jur. Thesis, York University, 1981) [unpublished]; B. Slattery, The Land Rights of Indigenous Canadian Peoples, as Affected by the Crown's Acquisition of Their Territories (Saskatoon: University of Saskatchewan Native Law Centre, 1979) [hereinafter Land Rights of Indigenous Canadian Peoples].
(76) Worcester, supra, note 43 at 552.
(77) Ibid. at 559.
(78) Ibid. at 545.
(79) In Marshall C.J.'s words, ibid. at 561:
The Cherokee nation, then, is a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of congress. The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States.
The state of Georgia refused to acknowledge the validity of the judgment in Worcester v. Georgia, and federal authorities did not attempt to enforce the ruling. See J. Burke, "The Cherokee Cases: A Study in Law, Politics, and Morality" (1969) 21 Stanford L. Rev. 500. The Cherokee were subsequently expelled from Georgia, resulting in a mass exodus of an estimated 17,000 people. About 4,500 people died in the walk. See G. Jahoda, The Trail of Tears (New York: Holt Rinehart & Winston, 1975).
(80) Supro, note 43 at 561.
(81) Compare Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831) at 12, where a majority of the Court, per Marshall C.J., held that the Cherokee people constituted a state possessing political independence, with "their relation to the United States resembl[ing] that of a ward to his guardian."
(82) Supra, note 43 at 561.
(83) Although Marshall C.J.'s judgment is strongly suggestive of a more expansive definition of native property entitlements beyond a right to occupancy at the mercy of the federal government, one which would include limits on the government's authority to extinguish native title absent consent, the United States Supreme Court subsequently determined that the power of Congress to extinguish Indian title is supreme. See United States v. Santa Fe Pacific Ry, 314 U.S. 339 (1941) and Buttz v. Northern Pacific Ry, 119 U.S. 55 (1886). In U.S. v. Wheeler, 435 U.S. 313 (1978) at 323, for example, it was stated:
The sovereignty that the Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers. In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status.
In the case of ambiguity, there must be a "clear and plain indication" that extinguishment was intended; otherwise Indian title continues: see Lipan Apache Tribe v. United States, 180 Ct. Cl. 487 (1967) (U.S.S.C.) at 492. Upon extinguishment, however, the native interest is not a compensable property right unless Congress had unambiguously "recognized" a native right of permanent occupancy. Absent such recognition, Congress is entitled to extinguish the native interest in reserve lands or unsurrendered lands absent consent and without any corresponding obligation to provide compensation for such actions. See Tee-Hit-Ton Indians v. U.S. 348 U.S. 272 (1955). For critical commentary, see McNeil, supra, note 60 at 259-64; 1. Harvey, "Constitutional Law: Congressional Plenary Power Over Indian Affairs--A Doctrine Rooted in Prejudice" (1982) 10 Am. Indian L. Rev. 117; S. Bloxham, "Aboriginal Title, Alaskan Native Property Rights and the Case of the Tee-Hit-Ton Indians" (1980) 8 Am. Indian L. Rev. 299; N. Jessup Newton, "At the Whim of the Sovereign: Aboriginal Title Reconsidered" (1980) 31 Hastings L.J. 1215. For a general overview of U.S. federal law over Indian affairs, see R. Ericson & D.R. Snow, "The Indian Battle for Self-Determination" (1970) 58 Cal. L. Rev. 445 and D.G. Kelly, "Indian Title: The Rights of American Indians in Lands They Have Occupied Since Time Immemorial" (1975) 75 Columbia L. Rev. 655.
(84) For an overview, see J. Hurley, "Aboriginal Rights, the Constitution, and the Marshall Court" (1982-83) 17 R.J.T. 403; see also N. H. Mickenberg, "Aboriginal Rights in Canada and the United States" (1971) 9 Osgoode Hall L.J. 119.
(85) (1888), 14 App. Cas. 46 (EC.) [hereinafter St. Catherines Milling].
(86) Supra, note 11.
(87) Supra, note 85 at 54.
(90) Ibid. at 55.
(91) Ibid. at 54. For further discussion, see McNeil, supra, note 60 at 272-74; see also K. McNeil, "The Temagami Indian Land Claim: Loosening the Judicial Straightjacket" in M. Bray & A. Thomson, eds, Temagami: A Debate on Wilderness (Toronto: Dundurn Press, 1990).
(92)  S.C.R. 313, 34 D.L.R. (3d) 145 [hereinafter Calder cited to S.C.R.].
(93) Pigeon J. argued that access to the Court for the determination of the Nishga's claim was barred by sovereign immunity from suit without a fiat granted by the Lieutenant Governor of British Columbia pursuant to the Crown Procedure Act, R.S.B.C. 1960, c. 89.
(94) Supra, note 92 at 334-35, quoting United States v. Santa Fe Pacific Ry., supra, note 83.
(95) Ibid. at 344.
(96) Ibid. at 343.
(97) For a similar view, see W.H. McConnell, "The Calder Case in Historical Perspective" (1974) 38 Sask. L. Rev. 88. See also K. Lysyk, "The Indian Title Question in Canada: An Appraisal in the Light of Calder" (1973) 51 Can. Bar Rev. 450.
(98) Supra, note 92 at 346.
(99) Ibid. at 368.
(100) Ibid. at 375.
(101) The Nishgas advanced the proposition that the native proprietary interest is "a right to occupy the lands and to enjoy the fruits of the soil, the forest and of the rivers and streams which does not in any way deny the Crown's paramount title as it is recognized by the law of nations" (ibid. at 352).
(102) Quoting Davis J. in Lipan Apache v. United States, supra, note 83.
(103) Complicating Calder was the fact that the Crown's proclamations and ordinances at the time had legislative force in the colony.
(104) Supra, note 35. For commentary, see R.H. Bartlett, Indian Reserves and Aboriginal Lands in Canada: A Homeland (Saskatoon: University of Saskatchewan Native Law Centre, 1990) at 194-204; D.P. Emond, "Case Comment: Guerin v. R." (1986) 20 E.T.R. 61; and J. Hurley, "The Crown's Fiduciary Duty and Indian Title: Guerin v. R." (1985) 30 McGill L.J. 559.
(105) Indian Act, s. 18.
(106) Ibid. s. 37.
(107) Wilson J. was of the view that an express trust was established upon surrender. Estey J. would have relied on agency law to reach a similar conclusion.
(108) Guerin, supra, note 35 at 377. In so holding, Dickson J. concluded that the native interest in the land would be the same if the land in question was not reserve land but rather traditional tribal lands. For a criticism of this holding, see Bartlett, supra, note 104. See also McNeil, supra, note 60 at 286-88.
(109) Ibid. at 376.
(110) Quoting E. Weinrib, "The Fiduciary Obligation" (1975) 25 U.T.L.J. 1 at 7.
(111) For the intimation that fiduciary obligations attach to the provincial, as well as the federal, Crown, see Dickson C.J.'s concurring judgment in Mitchell and Milton Management Ltd. v. Peguis Indian Band et al.,  2 S.C.R. 85 at 109, 71 D.L.R. (4th) 193 [hereinafter Peguis cited to S.C.R.] ("[f]rom the aboriginal perspective, any federal-provincial divisions that the Crown has imposed on itself are internal to itself and do not alter the basic structure of Sovereign-Indian relations").
(112) Supra, note 110.
(113) McNeil, supra, note 60 at 11.
(114) McNeil demonstrates that the Crown at best is lord paramount over lands subject to common law aboriginal title. Thus the Crown is entitled to grant a lordship to a third party, but such a grant would not affect the fee simple title native people possess by virtue of their occupation. Ibid. at 193-243. See also McNeil, "The Temagami Indian Land Claim: Loosening the Judicial Straightjacket", supra, note 91 at 213-70.
(115) Supra, note 43 at 545.
(116) Supra, note 35 at 380, quoting Marshall C.J. in Johnson v. M'Intosh, supra, note 43 at 588.
(117) Ibid, at 349.
(118) See supra, notes 50-53 and accompanying text.
(119) In the Treaty of Paris, France ceded all its remaining territories in Canada to the British Crown, as well as its territories east of the Mississippi River. In the same treaty, Britain also acquired territorial sovereignty over Florida from Spain.
(120) The Royal Proclamation stated the following: "And We do further declare it to be Our Royal Will and Pleasure, for the present as aforesaid, to reserve under our Sovereignty, Protection, and Dominion, for the use of the said Indians, all the Lands and Territories not included within the Limits of our said Three new Governments [Quebec, East Florida, and West Florida], or within the Limits of the Territory granted to the Hudson's Bay Company, as also all the Lands and Territories lying to the Westward of the Sources of the Rivers which fall into the [Atlantic Ocean] from the West and North West...."
(121) Logan v. A.G. Canada (1960), 20 D.L.R. (2d) 416, O.W.N. 361 (Ont. C.A.), is the only case to my knowledge which directly addresses this issue. In Logan, a member of the Six Nations Confederacy, composed of the Mohawk, Oneida, Onondaga, Cayuga, Seneca and Tuscarora nations, argued unsuccessfully that members of the Six Nations were not subjects of the Crown and therefore outside the reach of the Indian Act. In dismissing the argument, King J., at 442, argued that the Six Nations were once "faithful allies of the Crown" but became "loyal subjects of the Crown" by virtue of accepting reserve land from the Crown.
(122) With the passage of s. 35(1) of the Constitution Act, 1982, the exercise of legislative authority must not interfere with "existing aboriginal or treaty rights;" see infra, notes 232-56 and accompanying text.
(123) The judiciary has interpreted s. 91(24) to include Inuit peoples. See Reference re Term "Indians",  S.C.R. 104, 2 D.L.R. 417. It has yet to be determined whether s. 91(24) also refers to Metis people. See J. Woodward, Native Law (Toronto: Carswell, 1989) at 6. See also C. Chartier, "'Indian': An Analysis of the Term as Used in Section 91(24) of the British North America Act, 1867" (1977-79) 43 Sask. L. Rev. 37.
(124) (1976), 71 D.L.R. (3d) 159, 31 C.C.C. (2d) 575 (S.C.C.).
(125) R.S.C. 1970, c. F-14 [hereinafter Fisheries Act], now R.S.C. 1985, c. F-14.
(126) See B. Slattery, "Aboriginal Sovereignty and Imperial Claims: Reconstructing North American History" (1991) 29 Osgoode Hall L.J. (forthcoming) for the view that "the premise that America was legally vacant when Europeans arrived cannot be justified either by reference to systems of conventional law or to natural law" (supra at 15 of manuscript).
(127) See infra, text accompanying notes 232-57.
(128) See B. Ryder, "The Demise and Rise of the Classical Paradigm in Canadian Federalism: Promoting Autonomy for the Provinces and First Nations" (1991) 36 McGill L.J. 308.
(129)  2 S.C.R. 451, 113 D.L.R. (3d) 374.
(130) R.S.M. 1970, c. W-140 [hereinafter Wildlife Act], now R.S.M. 1987, c. W-130.
(131) Para. 13 of the Memorandum of Agreement Under the Manitoba Natural Resources Act, S.M. 1930, c. 30, S.C. 1930, c. 29, 1930 (U.K.) 20-21 Geo. V, c. 26.
(132) The Court went on to accept the trial judge's finding that, in fact, the land in question was "occupied" within the meaning of the memorandum of agreement because it was being used as a wildlife management reserve pursuant to valid provincial legislation, but that since the public had a limited right of access to the land, native people possessed an unlimited right to hunt and fish for food pursuant to the memorandum of agreement.
(133) (1977),  1 S.C.R. 104, 75 D.L.R. (3d) 434 [hereinafter Kruger and Manuel cited to S.C.R.].
(134) Ibid. at 110.
(135) Ibid. In Kruger and Manuel, the Court concluded that the legislation in question did not have such an effect. Whether a province can extinguish, as opposed to regulate, aboriginal title is a complicated question. If the law in question singles out native people in the act of extinguishment then, according to traditional principles such a law would be ultra vires the province. If, however, the law is one of general application, it could be argued that it nonetheless touches on matters that are "inherently Indian" and therefore inapplicable. See R. v. Dennis and Dennis (1974),  2 W.W.R. 630, 56 D.L.R. (3d) 379 (B.C. Prov. Ct.), for the view that a provincial law that extinguishes aboriginal rights is legislation in relation to Indians and therefore ultra vires, and that exclusive federal authority over extinguishment of aboriginal title is a "most desirable social objective" (at 390). But see A.G. Ontario v. Bear Island Foundation (1984), 49 O.R. (2d) 353, 15 D.L.R. (4th) 321 (Ont. H.C.), aff'd  68 O.R. (2d) 394, 58 D.L.R. (4th) 117 (Ont. C.A.) (leave to appeal to the S.C.C. granted, 19 October 1989). See W. Pentney, "The Rights of the Aboriginal Peoples of Canada in the Constitution Act, 1982: Part II: Section 35: The Substantive Guarantee" (1987) 22 U.B.C. L. Rev. 207, for an argument in support of exclusive federal power to extinguish aboriginal title.
(136) (1979),  1 S.C.R. 1031, 102 D.L.R. (3d) 385 [hereinafter Four B Manufacturing cited to S.C.R.].
(137) Ibid. at 1048.
(138)  1 S.C.R. 285, 26 D.L.R. (4th) 175 [cited to S.C.R.].
(139) R.S.B.C. 1979, c. 121 [hereinafter Family Relations Act].
(140) Supra, note 10, s. 20.
(141) Supra, note 138 at 296.
(142) For other cases involving claims that provincial laws go to the core of federal jurisdiction under s. 91(24), see Re Stony Plain Indian Reserve No. 135 (1981), 130 D.L.R. (3d) 636, 35 A.R. 412 (Alta. C.A.); R. v. Smith (1980),  1 F.C. 346, 113 D.L.R. (3d) 522 (Fed. C.A.); Western Industrial Contractors Ltd. v. Sarcee Developments Ltd.,  3 W.W.R. 631, 98 D.L.R. (3d) 424 (Alta. S.C.A.D.); Milbrook Indian Band v. Northern Counties Residential Tenancies Board (1978), 28 N.S.R. (2d) 268, 84 D.L.R. (3d) 174 (N.S.S.C.); Natural Parents v. Superintendent of Child Welfare,  2 S.C.R. 751, 60 D.L.R. (3d) 148; Cardinal v. A.G. Alberta,  S.C.R. 695, 40 D.L.R. (3d) 553 [hereinafter Cardinal cited to S.C.R.]; Corporation of Surrey v. Peace Arch Enterprises (1970), 74 W.W.R. 380 (B.C.C.A.); R. v. Rodgers (1923), 33 Man. L.R. 139, 3 D.L.R. 414 (Man. C.A.); R. v. Jim (1915), 22 B.C.R. 106, 26 C.C.C. 236 (B.C.S.C.). Judicial protection of the "core of Indianness" from provincial regulation is more notional than real, due to judicial interpretation of s. 88 of the Indian Act which has consistently been held to nonetheless incorporate by reference provincial laws of general application which impair the status and capacity of native people so long as such laws do not conflict with treaty rights or federal legislation, or address a subject matter dealt with by the Indian Act. See, for example, Dick v. R.,  2 S.C.R. 309, 23 D.L.R. (4th) 33 (S.C.C.); Jack and Charlie v. R.,  2 S.C.R. 332, 21 D.L.R. (4th) 641 [hereinafter Jack and Charlie cited to S.C.R.]. For an overview, see L. Little Bear, "Section 88 of the Indian Act and the Application of Provincial Laws to Indians" in Governments in Conflict?, supra, note 31 at 175.
(143) Four B Manufacturing, supra, note 136 at 1047-48.
(144) (1982), 41 B.C.L.R. 173, 3 C.C.C. (3d) 481 (B.C.C.A.), aff'd supra, note 142.
(145) Ibid. at 183 & 187.
(146) The Supreme Court of Canada held that the provincial law was incorporated by reference by s. 88 of the Indian Act. See supra, note 133 and accompanying text.
(147) For a similar view, see Ryder, supra, note 128. Ryder argues that the judiciary should prevent provincial laws from applying to "matters that touch the heart of First Nations peoples' identities" or to areas in which federal or First Nations laws have "covered the field," and that Parliament ought to be prevented from delegating federal legislative authority over "Indians, and Lands Reserved For Indians" without the consent of parties involved (at 363). Compare Laskin's dissent in Cardinal, supra, note 142 at 716, where he stated:
Indian Reserves are enclaves which, so long as they exist as Reserves, are withdrawn from provincial regulatory power. If provincial legislation is applicable at all, it is only by referential incorporation through adoption by the Parliament of Canada.
(148) Supra, note 142.
(149) Ibid. at 345.
(150) Ibid. at 344.
(151) Although proposed by counsel for the Salish, this part of Justice Beetz' reasons was not devoted to rebutting the argument that regulating the hunt interfered with the core of Indianness, as Justice Beetz opted for the narrower, legalistic definition of federal authority articulated in Dick v. R, supra, note 142. He drew a distinction between the hunt and ceremony to refute the argument that federal incorporation under s. 88 of the Indian Act of provincial regulation of the hunt would infringe the religious freedom of the Salish people protected by the Canadian Bill of Rights, supra, note 30. Yet the risk of error would be the same had he opted for Lambert J.A.'s approach.
(152) R. Simeon, "Aboriginal Self-Government and Canadian Political Values" (Address to the National Symposium on Aboriginal Self-Determination, Toronto, 2 October 1990) at 53 [unpublished].
(153) Compare M. Krasnick, "Remarks before the National Symposium on Aboriginal Self-Determination" (Address to the Symposium, Toronto, 1 October 1990) at 5 [unpublished] (section 91(24) authorizes federal regulation of "some aspects of Indian life, but cannot displace those aspects of Indian life that are essential to continuing Indian culture").
(154) Ryder, supra, note 128 at 322.
(155) D.J. Purich, Our Land: Native Rights in Canada (Toronto: James Lorimer and Co., 1986) at 95.
(156) Canada, Indian Treaties and Surrenders From 1680 to 1902, reprinted ed. (Toronto: Coles Publishing, 1971).
(157) Ibid. See also infra, text accompanying notes 165-75 and 199-208.
(158) Indian Treaties and Surrenders, supra, note 156; see also infra, text accompanying notes 209-15.
(159) The other was known as the Robinson Superior Treaty, which extinguished the rights of native signatories to all land north and east of Lake Superior to the boundary between Canada and Rupert's Land, and contained terms similar to those of the Robinson-Huron Treaty. Both are found in Indian Treaties and Surrenders, ibid. at 147-49.
(160) Ibid. See also infra, text accompanying notes 185-98.
(161) The complete texts of the numbered Treaties are available in A. Morris, The Treaties of Canada with the Indians of Manitoba and the North-West Territories, reprinted ed. (Toronto: Coles Publishing, 1971) [hereinafter The Treaties of Canada]; see also infra, text accompanying notes 176-83. For an analysis of events leading up to the negotiation of Treaties Number Six and Seven, see J.L. Taylor, "Two Views on the Meaning of Treaties Six and Seven" in R. Price, ed., The Spirit of the Alberta Indian Treaties (Edmonton: Pica Pica Press, 1987) 9.
(162) See e.g. Principles of Public International Law, supra, note 52 at 58-70. It should be noted that, even if treaties between the Crown and First Nations were accorded "international treaty" status, this fact alone would not render them enforceable in domestic courts; implementing legislation would be required. See A.G. Canada v. A.G. Ontario (Labour Conventions),  A.C. 326, 1 D.L.R. 673 (P.C.).
(163) The uniqueness of treaties is emphasized to dampen the application of international law principles to the treaty context. In Simon v. R.,  2 S.C.R. 387 at 404, 24 D.L.R. (4th) 390 [hereinafter Simon cited to S.C.R.], for example, Dickson C.J. stated that "[a]n Indian treaty is unique; it is an agreement sui generis which is neither created nor terminated according to the rules of international law." See also R. v. White and Bob (1964), 52 W.W.R. 193, 50 D.L.R. (2d) 613 at 617-18 (B.C.C.A.), aff'd  S.C.R. vi, 52 D.L.R. (2d) 481n (S.C.C.); and Francis v. R.,  S.C.R. 618 at 631, 3 D.L.R. (2d) 641; R. v. Sioui,  1 S.C.R. 1025, 70 D.L.R. (4th) 427 [hereinafter Sioui cited to S.C.R.].
(164) See infra, text accompanying notes 187-98.
(165) , 1 D.L.R. 307, 50 C.C.C. 389 (N.S. Co. Ct.) [hereinafter Syliboy cited to D.L.R.].
(166) S.N.S. 1926, c. 4, now Crown Lands Act, R.S.N.S. 1989, c. 114.
(167) Syliboy, supra, note 165 at 308.
(168) Ibid. at 313.
(169) See supra, notes 73-81 and accompanying text.
(170) Supra, note 165 at 313.
(173) Ibid. Patterson J. was also of the view that the Governor did not have treaty-making authority as there was no evidence that the Governor was not specially deputed by the constituted authorities of Great Britain for this purpose (supra at 314).
(174) For discussion of the lack of any definition of the status of a native treaty in Canadian law, see D.E. Sanders, "Aboriginal Peoples and the Constitution" (1981) 19 Alta. L. Rev. 410 at 417-18. For a contrary holding, see R. v. Wesley,  2 W.W.R. 337, 4 D.L.R. 774 (Alta C.A.). For analysis, see K. McNeil, Indian Hunting, Trapping and Fishing Rights in the Prairie Provinces of Canada (Saskatoon: University of Saskatchewan Native Law Centre, 1983).
(175) Supra, note 165 at 313.
(176) (1966), 56 D.L.R. (2d) 749, 56 W.W.R. 565 (Sask. C.A.) [hereinafter Johnston cited to D.L.R.].
(177) R.S.S. 1953, c. 232, now R.S.S. 1978, c. S-23.
(178) The Treaties of Canada, supra, note 161 at 354-55.
(179) Supra, note 176 at 751.
(180) Ibid, at 753. For an opposite conclusion, see Dreaver v. The King, an unreported judgment of the Exchequer Court of Canada, referred to in Johnston, ibid. at 754.
(181) The Treaties of Canada, supra, note 161.
(182) For the view that "[t]he intent was that Indians should receive from the Federal Government whatever medical care could be made available," see Indian Chiefs of Canada, "Citizens Plus" in Wanbageshig, ed., The Only Good Indian (Toronto: New Press, 1970) 5 at 35.
(183) Edwards v. A.G. Canada,  A.C. 124 at 136, 1 D.L.R. 98 (P.C.), Lord Sankey.
(184)  2 F.C. 18 at 18, 102 D.L.R. (3d) 602 (F.C.T.D.) [hereinafter Pawis cited to F.C.].
(185) Ibid. at 22.
(186) Ibid, at 23. It was also argued that the Crown was guilty of negligent representation due to statements by former Ministers of Indian Affairs to the effect that the policy of the Government was to "recognize the lawful obligations imposed on the Crown by treaties entered into with the Indian people."
(187) Ibid, at 25.
(188) Ibid, at 31.
(189) Limitations Act, R.S.O. 1970, c. 246, now R.S.O. 1980, c. 240.
(190) Supra, note 184 at 27.
(191) Ibid. at 28.
(193) Ibid. at 26-27.
(194) Ibid. at 26.
(195) Ibid., emphasis added.
(196) Ibid. at 27.
(197) For an illustration of this principle, see Sikyea v. R.,  S.C.R. 642, 50 D.L.R. (2d) 80.
(198) In Pawis, supra, note 184 at 29, Marceau J. hints that compensation may be due in cases where "property is actually taken possession of, or used by, the government" quoting Wright J. in France Fenwiek and Company Limited v. R.,  1 K.B. 458 at 467.
(199) Supra, note 163.
(200) R.S.N.S. 1967, c. 163 [hereinafter Lands and Forests Act], now Crown Lands Act, supra, note 166.
(201) Supra, note 163 at 399.
(202) Ibid. at 402, quoting Nowegijick v. R.,  1 S.C.R. 29, 144 D.L.R. (3d) 193, and Jones v. Meehan, 175 U.S. 1 (1899). See also R. v. Bartleman (1984), 55 B.C.L.R. 78, 12 D.L.R. (4th) 73 (B.C.C.A.) and R. v. Taylor (1981), 34 O.R. (2d) 360, 62 C.C.C. (2d) 227 (Ont. C.A.), leave to appeal refused  2 S.C.R. xi. For a discussion of the "Nowegijick principle" as it relates to the interpretation of statutes, see Peguis, supra, note 111 at 98-100.
(203) Supra, note 163 at 402.
(204) See supra, note 142.
(205) Supra, note 163 at 407.
(206) Ibid. at 406.
(207) See R. v. George,  S.C.R. 267, 55 D.L.R. (2d) 386.
(208) This is now subject to s. 35(1) of the Constitution Act, 1982; see infra, text accompanying notes 232-57.
(209) Supra, note 163.
(210) Parks Act, R.S.Q. 1977, c. 9.
(211) Supra, note 163 at 1031.
(212) Ibid. at 1068.
(213) Ibid. at 1070. It should be noted that Lamer J. excluded the free exercise of religion on private property from the scope of the treaty right. He did this by claiming that the intent of the parties conformed to normative legal categories, namely, the distinction between public and private ownership, while at the same time acknowledging that the Hurons were probably unaware of the consequences of private ownership. He stated the following:
I readily accept that the Hurons were probably not aware of the legal consequences, and in particular of the right to occupy to the exclusion of others, which the main European legal systems attached to the concept of private ownership. Nonetheless I cannot believe that the Hurons ever believed that the treaty gave them the right to cut down trees in the garden of a house as part of their right to carry on their customs (supra at 1072).
Relying on the intent of the parties to support the invocation of the public/private distinction in the context of an agreement where one party is unaware of the legal consequences of the concept of private ownership is, to say the least, highly problematic.
(214) See infra, text accompanying notes 232-57.
(215) Supra, note 163 at 1063.
(216) See infra, text accompanying notes 232-57.
(217)  1 S.C.R. 187, 47 D.L.R. (4th) 526 [hereinafter Horse cited to S.C.R].
(218) The Treaties of Canada, supra, note 161 at 353.
(219) More specifically, the appellants relied on the following extract from The Treaties of Canada, ibid. at 215-18:
[Chief Tee-Tee-Quay-Say:] We want to be at liberty to hunt on any place as usual ... [Lieutenant Governor Morris:] You want to be at liberty to hunt as before. I told you we did not want to take that means of living from you, you have it the same as before, only this, if a man, whether Indian or Half-breed, had a good field of grain, you would not destroy it with your hunt ...
(220) See Cross on Evidence, 6th ed. (London: Butterworths, 1985) at 615-16.
(221) Supra, note 217 at 202.
(222) Ibid. at 203.
(223) Ibid. at 205 & 208.
(225)  1 S.C.R. 901, 55 C.C.C. (3d) 353 [hereinafter Horseman cited to S.C.R.].
(226) R.S.A. 1980, c. W-9, s. 42 [hereinafter Wildlife Act], now S.A. 1984, c. W-9.1.
(227) A distinction drawn by Wilson J. in dissent. See also Dickson J. (as he then was) in Moosehunter v. R.,  1 S.C.R. 282, 123 D.L.R. (3d) 95.
(228) Supra, note 225 at 937.
(230) Ibid. at 922.
(231) Supra, note 163 at 1063.
(232) Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11.
(233) Supra, note 27.
(234) Supra, note 125, ss. 34, 61(1).
(235) See also supra, text accompanying notes 124-25.
(236) Supra, note 27 at 1106.
(237) See supra, text accompanying notes 104-12.
(238) See R. v. Eninew (1984), 1 D.L.R. (4th) 595, 7 C.C.C. (3d) 443 (Sask. Q.B.), aff'd (1984), 10 D.L.R. (4th) 137, 12 C.C.C. (3d) 365 (Sask. C.A.); A.G. Ontario v. Bear Island Foundation, supra, note 135; R. v. Hare and Debassige (1985), 20 C.C.C. (3d) 1, 3 C.N.L.R. 139 (Ont. C.A.); Steinhauer v. R. (1985), 63 A.R. 381, 15 C.R.R. 175 (Alta. Q.B.); R. v. Agawa (1988), 28 O.A.C. 201, (1989) 53 D.L.R. (4th) 101. But see R. v. Martin (1985), 65 N.B.R. (2d) 21, 17 C.R.R. 375 (N.B.Q.B.). See also D.E. Sanders, "The Rights of the Aboriginal Peoples of Canada" (1983) 61 Can. Bar Rev. 314 at 331; K. Lysyk, "The Rights and Freedoms of the Aboriginal Peoples of Canada" in W.S. Tarnopolsky & G.A. Beaudoin, eds, The Canadian Charter of Rights and Freedoms: Commentary (Toronto: Carswell, 1989) 478; B. Slattery, "The Constitutional Guarantee of Aboriginal and Treaty Rights" (1982-83) 8 Queen's L.J. 232 at 262-65; K. McNeil, "The Constitutional Rights of the Aboriginal Peoples of Canada" (1982) 4 Sup. Ct L. Rev. 255 at 257-58; Pentney, supra, note 135.
(239) R. v. Martin, ibid.; R. v. Eninew, ibid.; Horse v. R.,  1 W.W.R. 1 (Sask. C.A.), aff'd supra, note 217; R. v. Netmaker,  3 C.N.L.R. 181 (Sask. Prov. Ct.).
(240) R. v. Sparrow (1986), 36 D.L.R. (4th) 246 (B.C.C.A.), aff'd, supra, note 27. See also Pentney, supra, note 135 at 210-15; Slattery, supra, note 238 at 254-57; McNeil, supra, note 238 at 256-57; B. Slattery, "Understanding Aboriginal Rights" (1987) 66 Can. Bar Rev. 727 at 781-82.
(241) Supra, note 27 at 1084.
(242) See supra, text accompanying notes 92-102.
(243) Supra, note 27 at 1099.
(245) Ibid. at 1112.
(246) Ibid. at 1109.
(247) Ibid. at 1110.
(248) Ibid. at 1116.
(249)  1 S.C.R. 103, 26 D.L.R (4th) 200.
(250) In Simon, supra, note 163, the Supreme Court of Canada avoided this issue, holding that in light of s. 88 of the Indian Act it was not necessary to consider s. 35(I) of the Constitution Act, 1982.
(251) Supra, note 27 at 1112.
(252) Ibid. at 1103.
(253) See supra, text accompanying notes 146-54
(254) See e.g. Cook v. Sprigg,  A.C. 572; Vajesingji Joravarsingji v. Sec. of State for India (1924), L.R. 51; Coe v. Commonwealth of Australia (1979), 53 A.L.J.R. 403. For discussion, see McNeil, supra, note 60 at 131 n. 104 and Slattery, Land Rights of Indigenous Canadian Peoples, supra, note 75 at 45-59.
(255) Slattery, supra, note 126 at 9.
(256) See supra, text accompanying notes 146-54.
(257) Simeon, supra, note 152 at 53.
(258) For an excellent analysis of various fiscal arrangements and transfer programmes which could serve as models for a system of fiscal arrangements between the federal and provincial government and native peoples, see D.C. Hawkes and A.M. Maslove, "Fiscal Arrangements for Aboriginal Self-Government" in D.C. Hawkes, ed., Aboriginal Peoples and Government Responsibility: Exploring Federal and Provincial Roles (Ottawa: Carleton University Press, 1989) 93. See also M. Malone, Financing Aboriginal Self-Government in Canada, Background Paper No. 9 (Kingston: Institute of Intergovernmental Relations, Queen's University, 1986) and R. Aniol, "Fiscal Arrangements: Creating Unique Financial Transfers for Indian Governments" (Address to the National Indian Government Conference, Toronto, 4 October 1990) [unpublished].
(259) For an overview of current education policy and analysis of reform options, see J. Paquette, Aboriginal Self-Government and Education in Canada, Background Paper No. 10 (Kingston: Institute of Intergovernmental Relations, Queen's University, 1986). See also J. Barman, Y. Hebert & D. McCaskill, eds, Indian Education in Canada, vols. 1 & 2 (Vancouver: University of British Columbia Press, 1986).
(260) For a general account of issues surrounding health care delivery, see E. Cassidy & R.L. Bish, Indian Government: Its Meaning in Practice (Lantzville, B.C.: Oolichan & The Institute for Research on Public Policy, 1989) at 104-105; see also D.C. Speck, An Error in Judgment: The Politics of Medical Care in an Indian/White Community (Vancouver: Talonbooks, 1987), for a case study of delivery failure.
(261) For an analysis of child welfare policy, see M.G. Kline, Child Welfare Law, Ideology and the First Nations (LLM Thesis, York University, 1990) [unpublished]; see also P. Johnston, Native Children and the Child Welfare System (Toronto: Canadian Council on Social Development & Lorimar, 1983); E.F. Carasco, "Canadian Native Children: Have Child Welfare Laws Broken the Circle?" (1986) 5 Can. J. Faro. L. 111; and S. Bull, "The Special Case of the Native Child" (1989) 47 Advocate 525.
(262) See Report of the Osnaburgh Windigo Tribal Council Justice Review Committee, 31 July 1990 (recommending native administration of justice and policing). For a description of current policing mechanisms, see R.H. Bartlett, "The Power and Jurisdiction of An Indian Act Band Police Force" (1985) 2 C.N.L.R. 1.
(263) See Royal Commission on the Donald Marshall, Jr., Prosecution, Summary of Findings, vol 8, Digest of Findings and Recommendations, supra, note 2. The Marshall Report found that the treatment accorded to native people by the justice system is affected by several factors, including marginalized social status, absence of an economic land base, unemployment, poverty and social dysfunction, lack of adequate representation within the legal system, and racist assumptions about native difference. The Report recommended the establishment of a 5 year pilot project creating a community-controlled native criminal court, and the establishment of an Institute of Native Justice empowered to assess the incorporation of traditional law and to monitor potential discriminatory treatment in the legal system. See also M. Jackson, "Locking Up Natives in Canada" (1984) 23 U.B.C.L. Rev. 215 (proposing the implementation of programmes vesting native people with more control over incarceration and rehabilitation).
(264) For a scenario-based analysis of resource management in the wake of comprehensive land claims settlements in British Columbia, see F. Cassidy & N. Dale, After Native Claims?: The Implications of Comprehensive Claims Settlements for Natural Resources in British Columbia (Lantzville, B.C.: Oolichan & The Institute for Research on Public Policy, 1988).
(265) See The Economic Foundation of Indian Self-Government, A Report for the House of Commons Special Committee an Indian Self-Government (Thalassa Research Associates, 1983) (linking native economic development to settlement of land claims). See also The Canadian Aboriginal Economic Development Strategy (Ottawa: Supply and Services, 1989), for a statement of federal economic development objectives. See R. Francis, "The Development of an Economic Basis for Kingsclear Indian Nation" (Address to the National Indian Government Conference, Toronto, 3 October 1990) [unpublished], for a case study of economic development issues on the Kingsclear Indian Reserve in New Brunswick.
(266) See J.E. Chamberlin, The Harrowing of Eden: White Attitudes Toward American Natives (New York: Seabury Press, 1975), for a historical account of the imposition of European values onto native reality.
Patrick Macklem, Faculty of Law, University of Toronto. I wish to thank David Beatty, Howard Dancyger, Ron Daniels, Karin Eisen, Allan Hutchinson, Nicholas Kasirer, Gillian Lester, Ann Macklem, Katie McKee, Kent McNeil, Kent Roach, Bruce Ryder, Craig Scott and Bob Sharpe for their many detailed comments and criticisms on an earlier version of this paper. I would also like to thank the students in my Native Peoples Law class, who tested and helped me to clarify many of the ideas presented in this article.
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|Publication:||McGill Law Journal|
|Date:||Apr 1, 2001|
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