SPACES FOR SHARING: SEARCHING FOR INDIGENOUS LAW ON THE CANADIAN LEGAL LANDSCAPE.
Identifying the opportunities for Indigenous legal traditions to flourish requires an analysis of the substrate and substance of the Canadian legal landscape. As such, this paper offers a survey of where Indigenous laws arise within the field of Canadian law. The survey begins with a review of the Crown's assertion of sovereignty, sovereignty's interaction with consent, and its resultant jurisdiction, the substrate upon which Canada's legal system is built. The substrate is integral to analysis, as it fundamentally shapes the discussion by offering explanations for why Canadian law is resistant to Indigenous legal orders, why it is reluctant to provide room for Indigenous laws within the state system, why First Nations are skeptical and hesitant to engage their laws within the Canadian legal system, and how First Nations and Canada may move toward a more inclusive and interrelational legal structure. Once a substrate of sovereignty and jurisdiction is rendered, the remainder of the paper provides a survey of the various spaces within the substantive Canadian legal system where Indigenous laws have been recognized. (4) These spaces are revealed in case law, legislation, treaties, and legal agreements. However, considering that these sources only show opportunities within the Canadian legal system, I also identify where Indigenous laws may operate outside Canadian law.
The analysis will specifically focus on British Columbia, where the assertion of sovereignty and resultant control of people, lands and waters is, according to my analysis, unsupported in English law, producing an unjust and unlawful squatter state on unceded Indigenous territories. This unlawful landscape is the substrate that has been laid atop the many Indigenous legal orders that existed at the time Europeans arrived, and through the cracks and spaces of which Indigenous laws occasionally manage to re-emerge. The Canadian legal landscape serves to inform this survey of the application of Indigenous legal orders by showing the irony in the Crowns resistance to accepting the validity of Indigenous laws, and subsuming them under the Canadian common law, when the substrate of the Crown's own legal system is itself assailable. The irony of control results from an assertion of dominant authority creating inequity between legal orders. Identifying the irony in this paper contributes to the history of challenges to the legitimacy of state authority, urging Canadian lawmakers to accept that making space for Indigenous legal traditions is a step toward healing past harms.
Ultimately this paper shows there is little room within the Canadian legal landscape, a landscape that is slow to provide change, that would allow for a full, respectful engagement with Indigenous legal orders. I argue that despite whether First Nations choose to participate with Canadian law, (5) Canadian governments and legal practitioners must reform the legal system to make room for Indigenous legal orders to take their rightful place in the substance of Canadian law. (6) This move would not only demonstrate a willingness for reconciliation on the part of the Government of Canada, but would also begin to shift Canada's legal system toward a more fulsome model that embraces the inclusion of all Canada's founding parties, the earmark of a meaningful relationship. To be clear, First Nations may choose not to have their laws placed in relation to the state. (7) Yet many seek to engage for a number of reasons in a variety of ways, including participating in decisions impacting resources or the environment, (8) working to halt continued opptession and state control over lands and waters, (9) and to be subject to laws that First Nations have a role in creating. (10) Whether First Nations choose to engage, or as is often the case, are forced to engage, Canada is at a moment in the collective colonial history where it must decide how to effectively engage with Indigenous legal orders.
Sovereignty is the Crown's claim to legitimate authority over lands it claims, and its legal regime defends the sovereign claim against all other claims. (11) The operability of Indigenous laws in the context of the Canadian legal landscape is squarely rooted in an understanding of precisely what is being protected: the Crown's sovereign authority. Sovereignty as a western concept is the hierarchical model of a government's expression of political power over a defined territory, creating the need for a western legal system based on western political theories. According to Kent McNeil, European sovereignty of the 17th century "envisaged a world of equal, independent political units, each with absolute authority within its territorial limits and not subject to any external temporal power". (12) Although this Westphalian model of sovereignty relies on separate bounded spaces over which a single governing authority operates, the theoretical concept of sovereignty is flexible enough to allow for multiple expressions within a dominant state structure." Yet, Canada has long resisted overtly recognizing Indigenous nations' continued autonomy and self-determination. (14) In addition to being merely intransigent about its hold on authority and power in Canada, I suggest the Government of Canada's stranglehold on sovereignty is the result of the contested legitimacy of Crown sovereignty, with British Columbia its flashpoint.
ENGLISH POLICY AND THE PRINCIPLE OF CONSENT
English policy and practice in Canada was comprised of two parts: a claim of discovery and assertion of sovereignty over the land to establish the boundaries of the claim vis-a-vis other European powers; and the acquisition of an interest in the land through the consent of its Indigenous nations. (15) This policy and practice was carried out widely throughout Canada, and on the west coast before Confederation, but ended abruptly on Vancouver Island in 1852 with the Fort Victoria Treaties. The policy behind the Crowns entering into the Fort Victoria Treaties on Vancouver Island was clear: "purchasing without loss of time the native title to the soil of Vancouver Island". (16) Despite colonial officials knowing of and applying English policy regarding native title on Vancouver Island, political opinion changed based on the personal views of individuals in power. To Joseph Trutch, Chief Commissioner of Lands and Works, Indigenous people and land was oxymoronic. Under Trutch, the reserves that were surveyed under Governor James Douglas were to be reduced to only what was considered necessary for survival based on an English concept of property, because:
The Indians really have no right to the lands they claim, nor are they of any actual value or utility to them; and I cannot see why they should either retain these lands to the prejudice of the general interests of the Colony, or be allowed to make a market of them to Government or to individuals. It seems to me, therefore, both just and politic that they should be confirmed in the possession of such extents of lands only as ate sufficient for their probable requirements for purposes of cultivation and pasturage, and that the remainder of the land now shut up in these reserves should be thrown open to pre-emption. But in carrying out such a reduction of these reserves in the manner proposed, very careful management of the dispositions of the Indian claimants would be requisite to prevent serious dissatisfaction; firmness and discretion are equally essential to effect the desired result, to convince the Indians that the Government intend only to deal fairly with them and the whites, who desire to settle on and cultivate the lands which they (the Indians) have really no right to and no use for. (17)
In addition to the violent impact this political position had (and has) on the people directly affected by it, a significant problem with the position is that it was incorrect. Not only did Canadian courts hold that Aboriginal title exists, (18) in 1875 the Government of Canada, by Order in Council, disallowed provincial legislation passed by the Government of British Columbia (the Province) which received royal assent on 2 March 1874. (19)
In support of his recommendation to the Governor General in Council to disallow the provincial legislation entitled "An Act to amend and consolidate the laws affecting Crown Lands in British Columbia," Canada's Minister of Justice, Telesphore Fournier, drafted a report to the Department of Justice (DoJ) giving his reasons. (20) The Act consolidated inter alia the "recording and pre-emption of lands, [and] the surveying and sale of them". (21) The Minister's concern was threefold: the Province was allowing settlers to pre-empt land without having obtained surrenders of title from the Indigenous peoples; the Province arbitrarily established reserves without the assent of the Indians; and pre-emption granted to settlers was denied to Indians without the consent of the Lieutenant Governor. (22) Fournier pointed to the Fort Victoria Treaties as an exception in the Province's failure to seek surrender of Indian title, which, according to Fournier, "makes the absence of others the more remarkable". (23) Fournier's report outlined the Crown's policy and practice of seeking relinquishment of title through consent of the Indigenous populations before allowing settlement:
There is not a shadow of doubt, that from the earliest times, England has always felt it imperative to meet the Indians in council, and to obtain surrenders of tracts of Canada, as from time to time such were required for the purposes of settlements. (24)
In his report, Fournier argued that "Indian title" necessarily contained a "species of interest" that he set out as having "a legal or equitable nature". (25) Clearly, Canada rejected the Province's claim to the lands, which "are assumed to be the absolute property of the province" without acquiring a surrender from the Indigenous populous. (26) So what, then, of the surrender the English Parliament required before settling on Indian lands?
If the Crown acquired radical underlying title upon its assertion of sovereignty, as the Supreme Court of Canada has held, then why was the relinquishment of Indian title so important to British authorities before allowing settlement on those lands? (27) Fournier stated in his report to the DoJ that acquiring surrender of Indian title invokes the "honour and good faith" of the Crown. (28) More pragmatic than the Crown's honour was the concern over security. In his book retelling his accounts as Treaty Commissioner for Canada in the latter part of the 19th century, Alexander Morris, Lieutenant Governor of Manitoba and the Northwest Territories, wrote that the Dominion of Canada was tasked with "securing the alliance of the Indian tribes, and maintaining friendly relations with them" within the vast region of the former Rupert's Land. (29) Whatever the purpose, without the relinquishment of Indian title there was to be no settlement on Indian lands. Whether we use the interchangeable terms found in the historical record of cede, surrender, extinguishment, relinquishment or extinction of Indian title, the references are consistent in two regards: relinquishment was achieved through negotiation and consent of the Indigenous nations who possessed the lands in question. (30)
The idea that preventing conflict by getting consent from Indigenous peoples before allowing settlement on their lands was commonly accepted among government officials at the time. (31) However, the legal obligation under English law underpins the efforts and expense to which the Dominion of Canada committed itself, rather than either honour or security. Under English law, there are two legal mechanisms that will allow the acquisition of overseas lands in the name of the Crown:
Colonies... may be either (1) settled, or (2) conquered or ceded, and the manner of acquisition affects the constitutional position of the colony. The basis of distinction is the stage of civilisation in the territory; if there is no population or no civilised form of government recognised in international law, possession is obtained by settlement; where there is an organised society, acquisition depends on cession or conquest. (32)
To dispense with the settlement method for acquiring territories, the lands in BC, as with the rest of Canada, were not empty, nor did the legal fiction of a political terra nullius apply. (33) Futthermore, the SCC has affirmed that First Nations were organized societies: "the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries." (34) Thetefore, acting on more than honour or policy, the actions of the Canadian government in negotiating treaties with First Nations demonstrate their being bound by the laws of England.
ENGLISH LAW AND CONSENT
A review of the historical record demonstrates Canada's commitment to discharging its obligation to acquire Indigenous consent before permitting settlement on their lands in a manner consistent with the force of law. For example, Fournier wrote in his report that obtaining surrenders was "required for the purposes of settlements", and that England believed that it was "imperative" to do so. (35) Indeed, the Secretary of State for the Colonies wrote to Governor Douglas of Vancouver Island denying England's willingness to pay for the relinquishment of Indian title, an endeavor he argued was a "purely" colonial concern, but stated that doing so was "essential" to the colonial interest of Vancouver Island. (36) The process of "opening up the Territories for settlement, by obtaining the relinquishment of the natural title of the Indians to the lands" was necessary enough to commit the government to achieving its fulfillment. (37) In other words, settlement was only achieved by obtaining consent of the Indigenous peoples. (38)
This requirement was clearly set out in the texts of the numbered treaties. For example, Treaty 3 states:
And whereas the said Indians have been notified and informed by Her Majesty's said Commissioners, that it is the desire of Her Majesty to open up for settlement, immigration, and such other purposes as to Her Majesty may seem meet, a tract of country bounded and described as hereinafter mentioned, and to obtain the consent thereto of her Indian subjects inhabiting the said tract, and to make a treaty and arrange with them, so that there may be peace and good will between them and Her Majesty, and that they may know and be assured ofwhat allowance they ate to count upon and receive from Her Majesty's bounty and benevolence. (39)
Ministet Fournier stated that this policy of relinquishing Indian title was "either as the settled policy of Canada, or by legislative provision of Canada", (40) and cited the Royal Proclamation for the source of the policy.
The Royal Proclamation of King George the III in 1763 may be the authority for the policy and practice of acquiring consent to relinquish title before petmitting settlement (and perhaps is the source of the Law of Acquisition as cited previously from Halsbury's Laws of England) where, under the advice of his Privy Council, the King proclaimed:
And whereas, it is just and reasonable and essential to our interests and the security of our colonies, that the several nations or tribes of Indians with whom we are connected, and who live under our protection, should not be molested or disturbed in the possession of such parts of our dominions and territories, as not having been ceded to us, ate reserved to them, or any of them as their hunting grounds... as also, that no governor or commander-in-chief of our other colonies or plantations in America, do presume for the present and until our future pleasure be known, to grant warrants of survey or pass any patents for lands beyond the heads or sources of any of the rivers which fall into the Atlantic Ocean from the west of north-west; or upon any lands whatever, which, not having been ceded to or purchased by us, as aforesaid, are reserved to the said Indians, or any of them."
The Proclamation was intended to bind the King's royal subjects, administrators of the colonies, It had sufficient force to commit Canadian colonial officials to a substantial investment of time and resources in its implementation for much of the land in Canada. (42)
The conclusion, as evident in the Government of Canada's practice of gaining consent before opening up Indian lands for settlement shows that Canada acted as though fulfilling a legal obligation. (43) Even if one accepts for a moment that the utterance of sovereignty's assertion can instantaneously dispossess entire nations of their birthright to their lands in favour of a few foreign individuals, the settlement upon those lands cannot lawfully commence until Indigenous nations provide their consent. How, then, does the Province of British Columbia, with colonial officials subject to the laws and policies of Britain, get to ignore its legal obligation and assume control over the disposition of land that it had not yet legally acquired? As legal scholar John Borrows asks, "How can lands possessed by Aboriginal peoples for centuries be undermined by another nation's assertion of sovereignty? What alchemy transmutes the basis of Aboriginal possession into the golden bedrock of Crown title?" (44) The answer to this question reveals the uncertainty around the land question that exists in British Columbia to this day. One could argue that colonial officials did not acquire lawful control of the lands within British Columbia, as, without consent, the process is incomplete, which offers an explanation to why BC re-engaged a treaty process in the 1990s. To illuminate the tenuous hold sovereignty has in unceded territory, Vickers J offered a sort of standard, or test, for the assertion of sovereignty in the trial decision of the Tsilhqot'in Nation, in which he fails to mention consent.
A JUDICIAL TEST FOR THE ASSERTION OF SOVEREIGNTY?
In the Tsilhqot'in Nation v British Columbia trial decision, (45) Vickers J applied international law in his delineation of what appears to be a test that requires the Crown have two elements to satisfy the assertion of sovereignty: 1) sufficient occupation; and 2) an ability to maintain "actual or effective control" over the territory. (46) Vickers J applied this standard to dismiss arguments by Canada that Britain's assertion of sovereignty over the Pacific Coast was achieved at any of a number of meagre assertions:
It seems to me that Canada's argument builds on the failed assertion of sovereignty in 1792. While it might be argued that the events of 1818, 1821 and 1830 were avast improvement over Captain Vancouvet's act of imperialism, in my view, these events do not meet the tests imposed by international law. New Caledonia was not sufficiently occupied by the Crown on any of these dates. More importantly, there was no actual or effective control over the area. The legislative acts of a distant Parliament do not occupy a temtory. Nor do the words on a page, in any sense, provide a de facto administrative control over the area. (47)
It must be noted that although Justice Vickers held that an ability to maintain "actual or effective control" over the territory is a requirement for proving the assertion of sovereignty, he does not seem to apply this standard when it comes to Tsilhqot'in, leaving it open for a broad interpretation. Certainly, when the Crown asserted sovereignty through the Oregon Treaty in 1846 with the United States, Britain did not have actual or effective control over the Tsilhqot'in country or the Nation. Some evidence for this Statement comes from the Chilcotin War of 1864, when Tsilhqot'in warriors killed invading road builders and cleared their country of whites. (48)
Vickers J's decision is peculiar in two regards. First, he does not mention consent as an element of gaining control of the land for settlement upon the assertion of sovereignty. Second, he is clear that legislation originating elsewhere other than from a local authority does not substitute for occupation, thereby rejecting the notion of symbolic occupation to ground an assertion of sovereignty. Therefore, although the Crown must have actual or effective control and sufficient occupation of the land, and cannot legislate control from a distance, sovereignty in the Tsilhqot'in (as with much of the rest of BC), according to Justice Vickers' standard, is ambiguous and thus problematic. Despite the arguably untenable assertion of sovereignty, consent is required in conjunction with sovereignty as an operation of law to transfer land to the Crown for settlement. (49) This was not achieved for the most part in BC.
The purpose of this exercise is to tell the story of the Crown and how settlers have come to be in this place. In this context, one can then begin to consider how Indigenous laws may find a place within the Canadian legal landscape, why there is very little space currently, what are the obstacles to assuming a role within this milieu of Canadian law, and specifically, to understand why many Indigenous groups do not want to subject their laws to a regime that is founded on something that is unjust, oppressive, and legitimizes irrational acts of violence and theft against them. This is the story of colonialism. It is a story that threatens to be the Crowns undoing. (50) This is also the story of how First Nations' laws may re-emerge to serve the people, and jurisdiction may provide some space for conversation in a multi-juridical relationship between First Nations and the state. (51)
Sovereignty is a precondition for delegated jurisdiction in a state polity. (52) Sovereign power, absolute, foundational, unimpeachable, is derived from royal authority and vested in government as a source of domination and subjugation. (53) According to Foucault, understanding the exercise of power at its extremities, "where it becomes capillary . . . regional" (54), was more productive, or at least more interesting, for Foucault than studying the core of sovereign power. Locating power at its extremities takes research to the regional levels, delegated from the federal and provincial executive, parliamentary and legislative authorities down through the ministries, municipalities, courts, tribunals, and other regulatory bodies. These are the locations where jurisdiction has been delegated through government capillaries from its apogee at the Crown's preeminent sovereign authority. Regional locations of jurisdiction provide better possibilities for flexibility when it comes to thinking about interactional relations of legal authorities, more so than contesting the Crown's sovereignty with the intention of ousting it.
In the US, Native American tribes are "domestic dependent nations" (55) because federal law "diminished tribal sovereignty." (56) The diminished sovereignty of American tribes provides certain jurisdiction over people and reservations including the establishment of criminal and civil courts within the reservations. When US academics come to Canada to speak about US tribal authority, they are quick to acknowledge the difference in treatment, and sensitivity toward, sovereignty and jurisdiction north of the border. For example, when Dr. Stephen Cornell of the Harvard Project on American Indian Economic Development came to Vancouver in 2002 to speak at the BC Treaty Commission's "Speaking Truth to Power" treaty forum, he explained how someone told him that sovereignty is the "'S' word", recommending that he speak of jurisdiction instead. (57) Cornell explained that a First Nation who is the ultimate decision maker regarding various matters, internal or external, has jurisdiction over those matters. (58) Jurisdiction, then, refers to the authority to govern over a particular subject matter through a law-making process. Although jurisdiction in general terms is this simple, as an extremity of power it can be sliced a number of different ways within Indigenous governance and law-making. Subject matter-specific, jurisdiction may apply on-reserve or off-reserve, personally or territorially, and may be legislated or inherent. (59) A brief rendering of these categories below, which include personal versus territorial jurisdiction and sovereignty, will provide a basic framework for the survey of Indigenous laws in Canada that are discussed in the remainder of the paper.
PERSONAL VS. TERRITORIAL JURISDICTION
Scholars have wrestled with the issue of whether First Nations should have personal jurisdiction only, or a combination of both personal and territorial. (60) For example, lawyer Geoff Hall argued that First Nations would have more success achieving self-government if they avoid territorial sovereignty, leaving that to the Crown. (61) Hall argues that the Canadian legal order is flexible enough to embrace other concepts of sovereignty not tied to state boundaries, offering as examples criminal law, income taxation, diplomatic immunity, sovereign immunity, admiralty and military law. (62) The two purposes Hall presents for his thesis is to show flexibility within Canadian law and to show how First Nations may operate without an assertion of territorial sovereignty. (61) Although the premise for his paper is well-founded (a search for solutions to self-governance), and recognizing that the paper was written in the early 1990s, Hall seems to be willing to accede to the states intransigence and its oppressive position relating to Indigenous territories. I agree that personal sovereignty is viable, as it already applies when Indigenous laws govern Aboriginal practices on and off reserve (more on this below). Yet it should only be one option on the path toward reaching territorial sovereignty and jurisdiction within the Canadian state.
Quebec lawyer and professor Ghislain Otis also promoted personal jurisdiction; however, in contrast to Hall, he argued that territorial jurisdiction is unavoidable in the modern political context of First Nations. Under Otis' reasoning, a theory such as Hall's is unfavourable, as "a model of political autonomy that would in all cases disconnect the nation from the land and the territory... would be stripped of all legitimacy in the context of the political emancipation of the Aboriginal peoples." (64) Indigenous nations, whose prior occupation of their territories now comprising the Canadian state, are connected to those lands through the very fabric of sociological and epistemological worldviews. From a social perspective, jurisdiction that is disconnected from the territory loses meaning in the nation's understanding of itself in the world. From a contemporary political perspective, Otis states that territorial jurisdictions are the
key to the protection and mobilization of community resources for communal development and for funding autonomy. These jurisdictions will extend in particular to all issues related to lands and resources and the environment. These jurisdictions will make it possible to deploy Aboriginal cultures and legal traditions. They will also be essential to the implementation of economic and fiscal policies favouring the production and distribution of an Aboriginal wealth that today is desperately lacking. (65)
Otis' paper provides a thorough analysis of how both personal and territorial jurisdiction could apply for First Nations, resolving the concerns over the democratic process when non-Indigenous minorities within Indigenous jurisdictions cannot participate in the election processes--a significant stumbling block for Indigenous territorial jurisdiction. (66) As problematic as they may seem, concerns over democratic process have not prevented multiple territorial jurisdictions from being applied within Canada. (67)
JURISDICTION ON- AND OFF-RESERVE
On-reserve jurisdiction is law-making authority that is applied internally to the community regarding on-reserve matters. This includes personal and territorial matters that may pertain to membership, bylaws, land use, or resource development within the defined reserve boundaries. Most on-reserve jurisdiction is federally legislated. Deriving from the Crown s initial claim of absolute sovereign authority, on-reserve jurisdiction is implemented through a number of federal acts including the Indian Act and the First Nations Land Management Act (FNLMA). (68) In obvious contrast, off-reserve jurisdiction is authority over matters outside of the reserve applied to a nation's traditional territories. This jurisdiction may also be personal, applying to matters pertaining to members themselves, or territorial, applying to land use, resource extraction and subsistence activities. Unless there is a shared decision-making agreement with a provincial or federal authority, external jurisdiction derives by and large from the inherent pre-sovereign authority of the First Nation, which, applied territorially, is largely ignored by the state. (69)
Canada recognizes inherent jurisdiction through self-government, and attempts to confine that right to the Constitution and on-reserve activities:
The Government of Canada recognizes the inherent right of self-government as an existing Aboriginal right under section 35 of the Constitution Act, 1982. It recognizes, as well, that the inherent right may find expression in treaties, and in the context of the Crown's relationship with treaty First Nations. Recognition of the inherent right is based on the view that the Aboriginal peoples of Canada have the right to govern themselves in relation to matters that are internal to their communities, integral to their unique cultures, identities, traditions, languages and institutions, and with respect to their special relationship to their land and their resources....
Aboriginal governments and institutions exercising the inherent right of self-government will operate within the framework of the Canadian Constitution. Aboriginal jurisdictions and authorities should, therefore, work in harmony with jurisdictions that are exercised by other governments. It is in the interest of both Aboriginal and non-Aboriginal governments to develop co-operative arrangements that will ensure the harmonious relationship of laws which is indispensable to the proper functioning of the federation. (70)
In the policy's context, "their land" is defined as "reserved lands within the meaning of the Indian Act", (71) and other lands that have negotiated settlements authorising jurisdiction, including lands that would constitute reserve lands. The definition does not include traditional territories where there is unextinguished title or treaty rights. To ensure the integrity of the Crown's sovereignty, the government added that:
The inherent fight of self-government does not include a right of sovereignty in the international law sense, and will not result in sovereign independent Aboriginal nation states. On the contrary, implementation of self-government should enhance the participation of Aboriginal peoples in the Canadian federation, and ensure that Aboriginal peoples and their governments do not exist in isolation, separate and apart from the test of Canadian society. (72)
This displays the colonial imperative to protect the core of sovereignty, despite First Nations' inherent right to self-governance, becoming "a generally accepted aspect of Canadian constitutional law." (73) Although a self-governing freedom that arose prior to European contact must necessarily possess at its source the authority of the autonomous societal decision-making and enforcement activities of the group, the federal government limits Aboriginal self-government to Canada's constitutional framework, which leaves self-government undefined and contentious. This limitation on self-government power is what US scholars and courts refer to as "diminished sovereignty", discussed previously. Under the Canadian legal context, I suggest that Indigenous inherent self-governing power is a constitutionally recognized, albeit diminished sovereignty despite whether federal politicians are willing to acknowledge the same.
Having set out First Nations jurisdiction--that is both delegated inherently and through legislation, and includes some form of diminished sovereignty--a survey of how, where, and to what effect Indigenous laws have been applied in Canada provides the data needed to propose an informed solution toward Indigenous inclusion and freedom in Canada.
SURVEY OF INDIGENOUS LAWS IN CANADA
DELEGATED AUTHORITY: ON-RESERVE JURISDICTION
As discussed previously, on-reserve jurisdiction involves the ability to make laws regarding a range of matters within the reserve. Jurisdictional authority on reserves may include territorial matters regarding the reserve lands itself or personal matters regarding band members, and often both. (74) Much of the law that applies on-reserve arises through the delegation of authority under federal acts. Canada acquired its jurisdiction from British Parliament through the British North America Act, 1867 under subsection 91(24), begging the question: how was the British Crown able to give what it did not have? (75) Several scholars, including Sakej Henderson, argue that the treaties did not grant the Crown absolute sovereignty over Indigenous Nations, but rather a type of federalism he refers to as "treaty federalism" with shared authority. (76) Nevertheless, under absolute Crown authority, the federal government enacted the Indian Act in 1876, which has continued in a number of iterations to the present. (77) The Indian Act provides the democratic Chief and Council model of governance, which makes First Nations leadership accountable to the Minister of Indigenous and Northern Affairs. This model of government mirrors the western democratic electoral system that may restrict a leadership's ability to make laws consistent with their legal traditions (78) unless the leadership has continued to carry on their traditional practice of governance despite the imposition of the Indian Act. (79)
One section of the Indian Act delegating law-making authority to a band council is section 81, which provides for a band council to make bylaws on a range of enumerated matters, as long as they are "not inconsistent" with the Act or with any of the Governor in Council or Minister's regulations. (80) Some of these enumerated matters include, for example:
(c) che observance of law and order; (d) the prevention of disorderly conduct and nuisances;... (i) the survey and allotment of reserve lands among the members of the band and the establishment of a register of Certificates of Possession and Certificates of Occupation relating to allotments and the setting apart of reserve lands for common use, if authority therefor has been granted under section 60;... (1) the construction and regulation of the use of public wells, cisterns, reservoirs and other watet supplies;... (o) the preservation, protection and management of fur-bearing animals, fish and other game on the reserve; (p) the removal and punishment of persons trespassing on the reserve or frequenting the reserve for prohibited purposes; (p.l) the residence of band members and other persons on the reserve; (p.2) to provide for the rights of spouses of common-law partners and children who reside with members of the band on the reserve with respect to any matter in relation to which the council may make by-laws in respect of members of the band;... (q) with respect to any matter arising out of or ancillary to the exercise of powers under this section. (81)
I selected these to highlight their ability to be informed, or directly regulated, by application of the traditional Indigenous laws of a given First Nation. (82) Indigenous nations had, and still have, laws arising from old systems that specifically address: adherence to laws, regulation of conduct and behaviour within the community, matters pertaining to the private and common use of lands within and between families, use of and access to water sources, trespass, citizenship and residence, and family matters. (81) These old systems may be relied upon to inform the drafting of bylaws under the Indian Act.
One of the problems with delegated jurisdiction under the Indian Act is its adherence to western law practices. For example, enforcement of the bylaws is limited to a $1,000 fine or incarceration for a maximum of 30 days. (84) Of course, contraventions of the bylaws are to be set down for hearing in a court of competent jurisdiction. Additionally, under subsection 86(1) che Chief and Council are required to publish any bylaws, which are subject to the Ministers approval, "on an Internet site, in the First Nations Gazette or in a newspaper that has general circulation on the reserve of the band". (85) As is shown, the strict provisions of the Indian Act force the band council to produce laws that are consistent with, and as a result replicating, the western legal system. This means drafting, passing, enacting, and attempting to enforce laws according to Canadian legal practices. (86) Although a First Nation may be able to effectively incorporate some traditional rules and principles into the drafting of an Indian Act bylaw, the substantive and procedural outcome will be either a translation of Indigenous legal traditions into western law, or the creation of new western law per se.
The statutory delegation of jurisdiction under the Indian Act is almost totalizing, yet it does not completely stifle the opportunity for inherent jurisdiction to flow. One area where Indigenous law may have some room to maneuver through its inherent powers is subsection 2(1), paragraph (d), which provides for the custom election of a band council. (87) Band council is defined as "the council chosen according to the custom of the band, or, if there is no council, the chief of the band chosen according to the custom of the band." (88) According to the court, the right to use custom election arises from a nation's inherent jurisdiction rather than legislation. In Bone v Sioux Valley Indian Band No. 290:
Accordingly, I do not think that the power of the Band to choose its council in a customary manner is a "power conferred on the Band" as is contemplated by s. 2(3) (a) of the Indian Act. Rather it is an inherent power of the Band; it is a power the Band has always had, which the Indian Act only interferes with in limited circumstances, as provided for under s. 74 of the Act. Thus, in my view the Band may exercise this inherent power unrestrained by s. 2(3) (a) of the Indian Act. (89)
Seemingly innocuous in its flexibility to provide for custom rather than prescriptive election according to the Act, the leadership title remains "Chief" and "Council", and all other aspects of the election, including a democratic election process (in contrast to a hereditary system), are still subject to the Indian Act.
FIRST NATIONS LAND MANAGEMENT ACT
The Indian Act is the conduit through which additional jurisdiction is delegated in the form of regulations. Of these, none provide opportunities for the application or incorporation of Indigenous law. (90) Other federal legislation that applies to First Nations on reserve also confers certain limited powers on First Nations, but only the FNLMA provides some reasonable opportunity to incorporate the use of Indigenous legal traditions. (91) With the consent of a majority of the members, the FNLMA allows a First Nation to opt out of the Indian Act land management provisions through individual agreements with Canada and assume control over the administration of their reserve lands. Under the framework and individual agreements of the FNLMA, a First Nation has the authority to pass their own land use and management laws by means of a land code. A land code typically confers a reasonably broad law-making power on a First Nation, which, as with the creation of bylaws, may be informed by Indigenous legal traditions and laws.
Section 20 of the FNLMA provides the power to enact laws respecting:
(a) interests of rights in and licences in relation to First Nation land; (b) the development, conservation, protection, management, use and possession of First Nation land; and (c) any matter arising out of of ancillary to the exercise of that power.9 (2)
These laws may include laws on
(a) the regulation, control or prohibition of land use and development including zoning and subdivision control; (b) subject to section 5, the creation, acquisition and granting of interests of fights in and licences in relation to First Nation land and prohibitions in relation thereto; (c) environmental assessment and environmental protection; (d) the provision of local services in relation to First Nation land and the imposition of equitable user charges for those services; and (e) the provision of services for the resolution of disputes in relation to First Nation land. (93)
The law-making authority includes a provision for enforcement and paramountcy of the land code in the event of inconsistency or conflict with other First Nations laws previously made under the Indian Act. (94) Again, these broad powers allow space for Indigenous laws to inform the land code provisions; however, land codes are still western law instruments that are drafted, implemented and interpreted by lawyers trained in western law leaving the ability to effectively convey, or translate meaning, open to question. (95)
Some lawyers may have specialized understanding internal to a community's legal traditions, but the majority will not have this knowledge. (96) Additionally, only legal principles and rules that translate into western legal categories and concepts will survive a translation process, as western law has little tolerance for concepts and practices that lie outside of western legal concepts (e.g., law embedded in ceremony, spiritual beliefs and practices, relationships with non-human entities, obligations beyond written terms of an agreement or contract). For reasons of translatability and intelligibility, many aspects of an Indigenous legal worldview will be prevented from transferring through to provide meaningful substance in western legal instruments such as land codes and Indian Act bylaws.' (97)
DELEGATED AUTHORITY: OFF-RESERVE JURISDICTION
SHARED DECISION-MAKING AGREEMENTS
Off-reserve territorial jurisdiction applies to traditional territories that extend beyond the reserve. This jurisdiction may be inherent, in which case it is not recognized by Canadian governments. Therefore, to be recognized and given lawful authority and enforcement under the Canadian legal system, this jurisdiction must be delegated through agreements. Examples of jurisdiction delegated to First Nations from federal or provincial powers that apply beyond the reserve are limited in British Columbia. Some First Nations in British Columbia have entered shared decision making agreements with the Province that should convey some jurisdictional authority that could allow for the influence of Indigenous law.
A multi-year independent research project through Simon Fraser University's Centre for Dialogue reviewed the status and content of several of these agreements between the Province and First Nations, including Taku River Tlingit First Nation, Coastal First Nations, and Ktunaxa Nation (to name a few) between 2008 and 2014. According to the project, while not attempting to resolve issues of jurisdiction, the agreements are meant to "provide... a framework for collaboration between two governments" to "find ways to reach mutually agreeable decisions about how land and resources should be managed." (98) In its final report, the researchers are clear about the limits of shared decision-making with the Province. If shared decision-making means all parties contributing equally to a decision, in a shared manner, then British Columbia's shared decision-making model is less about sharing decisions and more about structuring consultation:
Despite all of their benefits, SDM [shared decision-making] Agreements still fall well short of the aspirations of many First Nations, who have been adamant and consistent in their calls for a more equal relationship. From this perspective, the scope and nature of shared decision making available under an SEA [Strategic Engagement Agreement] or an RP [Reconciliation Protocols] is still relatively limited. With the notable exception of the HGMC [Haida Gwaii Management Council], SDM Agreements do not provide the basis for joint decision making between the parties and do not represent an equal sharing of roles and responsibilities. Several First Nations representatives have made it abundantly clear that, in their view, SDM Agreements may be a good thing, but represent just one step forward on a longer journey. They have pointed out that these agreements ate still grounded in a Taku-Haida consultation and accommodation framework, which has not evolved in any substantial manner for more than a decade. Despite the apparent promise of the New Relationship, First Nation communities are not yet viewed as full partners and are not yet in a position to make decisions regarding the use of their land according to their own laws, policies and customs. From a First Nations perspective, participating in an SDM Agreement is better than the alternative, but it still means "playing in the provincial sandpit" and largely according to provincial rules. (99)
A First Nation's traditional laws are key when making decisions about the land, but making decisions about the land means the Province must commit to actually sharing jurisdiction. For Canadian governments, shared jurisdiction threatens the exclusivity of sovereignty, which they would undoubtedly prefer to avoid. (100) Yet, as the Final Report mentions, there is at least one example of a functional shared (i.e., joint) decision-making model that works: the Kunst'aa guu--Kunst'aayah Reconciliation Protocol between the Haida Nation and the Province.
The Kunst'aa guu--Kunst'aayah agreement signed in 2009 provides equal or joint decision-making through the creation of the Haida Gwaii Management Council (HGMC). Both parties appoint two members to the HGMC and agree on one neutral Chairperson who may be called upon to make a decision when consensus cannot be achieved. (101) The agreement and process for making decisions regarding land use on Haida Gwaii are well entrenched in the western form of legal instruments; however, Haida Nation's laws enter into the process through the committee members to inform decisions. For example, the Kunst'aa guu--Kunst'aayah agreement itself begins with the parties' "differing views with regard to sovereignty, title, ownership and jurisdiction over Haida Gwaii," with the Haida Nation expressing that it "will manage Haida Gwaii in accordance with its laws, policies, customs and traditions." (102) Furthermore, the HGMC states that its authority not only comes from the Kunst'aa guu--Kunst'aayah agreement, but also from the Nation's stewardship laws, referred to as "KaayGuu Gaga Kyah ts'as--Gin 'inaas 'laas 'waadluwaan gud tl'a gud giidaa (Stewardship Law)". (103) Despite the western influence in carrying out law in the context of a contemporary colonial hegemony, Haida Nation ensures their contemporary law-making is informed by their legal tradition. Regarding the provincial or federal governments authorizing truly joint jurisdiction that would allow for the application of Indigenous law, the Haida example is a one-off. (104) Without fully recognizing the implications, however, section 35 of the Constitution Act, 1982 implicitly makes space for the implementation of Indigenous laws.
SECTION 35, CONSTITUTION ACT, 1982
As section 35 of the Constitution Act, 1982 recognizes and affirms "the existing aboriginal and treaty rights of the aboriginal peoples of Canada", it is implicitly recognizing and affirming the implementation of Indigenous laws off the reserve through personal jurisdiction over its members. When an Indigenous person carries out hunting, fishing, trapping or gathering as an Aboriginal or treaty right, they are not doing so devoid of any legal or governing authority. Simply because, in these instances where Aboriginal or treaty rights are being practiced, federal or provincial regulations are not applicable, it does not mean the hunt is a free-for-all activity of reckless abandon. Indigenous people out on the land are practicing a tradition that is governed and regulated by many nuanced Indigenous laws that vary depending on variabilities such as the nation, person, kinship, practice, need, species, and time of year. (105) Without adherence to these laws, hunting, fishing, trapping, and gathering would be the meaningless activities carried out by settlers with licences and permits. Through traditional practices, Indigenous laws find protection under Canada's Constitution.
Although this has not been tested in court as a right per se, it should not be subject to the adjudication of a Canadian judiciary. This application of Indigenous law under the Constitution is defined as personal jurisdiction applying to the individual carrying out the traditional practice. As such, Indigenous laws that apply to the land itself to regulate settler hunting, fishing, trapping, and gathering, and decisions affecting resource extraction projects are not recognized by the state, nor are they implemented or enforced as a result of delegated jurisdiction. (106) Apart from the Haida, in the view of Canadian courts and Parliament, territorial jurisdiction remains solely with the Crown. (107)
Aboriginal title recognized as rights at law, evidenced through the signing of treaties early in Canada's history and more recently in cases including Calder, Delgamuukw, and Tsilhqot'in, offers a path for the expression of Indigenous laws. As a constitutionally protected right, Aboriginal title ensures the title-holder the right to control the uses to which the land is put and to its use, enjoyment, and economic benefits. (108) The right is a collective one, and the exercise of the right must be used in a manner that protects it for future interests. (109) The application of a nation's Indigenous laws would be helpful in guiding the present day control over the uses to which the land could be put that are consistent with the nation's own commitment and relationship to the territory. (110) Therefore, Indigenous law has a place to function within the scope of proven Aboriginal title lands through its use, protection, and enjoyment. However, where cases such as Tsilhqot'in take a step toward making space for Indigenous laws on one hand, on the other hand, it takes away from 250 years of jurisprudence that protects title lands through the abolishment of interjurisdictional immunity on proven title lands. (111)
The SCC decision in Tsilhqot'in removed interjurisdictional immunity, effectively allowing the overlap of federal and provincial laws on Aboriginal title lands. (112) Combined with the modified Gladstone standard for justifying infringement, there is almost no jurisdictional space on title lands. (113) Provincial laws may now apply where infringement is justified, or, in other words, where there is a compelling and substantial legislative objective bearing in mind the public interest "of all Canadians and, more importantly, the reconciliation of aboriginal societies with the rest of Canadian society" in "the pursuit of economic and regional fairness" for all interest groups. (114) While the Court in Gladstone did not delineate activities that may justify infringement, Lamer CJC in Delgamuukw offered some possible justifiable activities such as:
[T]he development of agriculture, forestry, mining, and hydro-electtic power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that . . . can justify the infringement of Aboriginal title. (115)
Citing this paragraph in Tsilhqot'in, McLachlin CJC leaves open the broad possibilities for justifying infringement on Aboriginal title land subject to the Crown's fiduciary duty to the Indigenous group. (116) Accepting Indigenous laws as evidence to prove Aboriginal title in Tsilhqot'in is an example of where those laws may serve the interests of the claimant group; however, they remain subsumed within the common law process, which is never in question. (117) The Tsilhqot'in title decision shows how the Court leaves room for the potential infringement of Aboriginal title by the federal and provincial governments with the abolition of jurisdictional immunity. Despite the overlapping jurisdiction on title land, the Tsilhqot'in are working to apply their laws, such as the establishment of the Dasiqox Tribal Park (Nexwagwez ?an) through the exercise of governance. (118)
MODERN TREATIES AND SELF-GOVERNMENT AGREEMENTS
As discussed above, Indigenous laws that govern hunting, fishing, trapping, and gathering are carried out through practice as protected under section 35 of the Constitution Act. This protection exists under treaty rights, as the Crown agreed in most treaties to ensure the signatories a continued "right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered as heretofore described" subject to occasional colonial regulation. (119) Unlike the older treaties, modern treaties are much more specific in defining the rights a signatory First Nations retains.
Under modern treaties in BC and the Yukon, certainty is a defining feature. (120) BC currently has four implemented modern treaties (Nisga'a Final Agreement, Tsawwassen First Nation Final Agreement, Maa-nulth First Nations Final Agreement, Tla'amin Final Agreement). (121) Modern treaties, more accurately defined as modern land claims agreements, modify a First Nation's Aboriginal rights to the extent they are defined in the agreement. The agreements are drafted to exhaustively set out the scope and limits of a First Nation's legal rights, authority, and lands. (122) The rights and jurisdiction under the agreement are exhaustively defined and are limited to the boundaries of the treaty settlement lands (TSL), which are also defined in the agreement and are larger than the original reserve, or to areas outside the TSL designated as specific harvesting areas. (123) Under modern treaties, First Nations acquire explicit delegated jurisdiction over harvesting, the management of TSL, and cultural practices. This jurisdiction provides opportunity for Indigenous laws to inform the governing and exercise of those practices within the TSL, and to some extent (as in the manner of traditional practices), over areas beyond the TSL. Where there is a conflict of laws, the treaty First Nation's laws prevail to the extent of their jurisdiction under the agreement, otherwise federal and provincial laws prevail. (124) Modern treaties differ from self-government agreements in a few important respects, particularly in land.
There are relatively few self-government agreements in British Columbia. (125) Self-government agreements are applied to the First Nation's existing reserve lands, although they have the power to exchange lands of apply to add to the reserves under the federal process. (126) In comparison, these agreements also delegate reasonably broad law-making jurisdiction over matters including lands, cultural practices, government, and taxation without limiting or modifying the Nation's Aboriginal rights or title. The First Nation remains subject to federal laws unless there is a conflict, in which case the agreement sets out whose laws will prevail. (127) Given the jurisdictional authority, self-governing agreement First Nations may rely on their legal traditions to inform contemporary law-making.
The laws produced under the authority delegated through modern treaties and self-government agreements are expressed through the drafting of contemporary legal instruments. (128) The delegation of the authority accorded these agreements is legislated and passed into Canadian law under the state's sovereign power. Legislation is a primary source of delegated jurisdiction. Another process for delegating jurisdiction, however, is through the judiciary.
INDIGENOUS LAW IN THE COURTS
The SCC has held that Indigenous laws are relevant for defining Aboriginal rights, particularly title. Occasionally couched as the Aboriginal perspective, the SCC has identified the importance of these laws in informing Canadian jurisprudence in cases including Mitchell, Marshall, Van der Peet, Delgamuukw, and Tsilhqot'in. (129) This section will consider a few key problems that arise when Indigenous law is entered as evidence in a Canadian court proceeding, such as the lack of competence of the Canadian judiciary to adjudicate Indigenous law and the hierarchical nature of the engagement. I am also interested in what judges have said about Indigenous laws in general and whether they have been assigned any jurisdictional authority through the courts. A decision that indirectly considered Indigenous law was R v Pamajewon. (130)
The SCC in Pamajewon was tasked with deciding whether the Shawanaga and Eagle Lake First Nations possessed a constitutionally protected Aboriginal right to self-government that should exclude them from the Canadian Criminal Code provisions regarding operating and regulating gambling on-reserve. The SCC was not concerned with whether self-government is an Aboriginal right protected under section 35, as it refused to decide this particular issue. (131) The Court instead focussed on the narrow issue of whether the First Nations' regulation of gambling on-reserve constituted an Aboriginal right, and applied the distinctive culture test from Van der Peet. (132)
The regulation of a traditional activity such as gaming falls under the category of law-making through governance. The appellants in the case claimed that gaming was a traditional practice of the Ojibwa and the regulation of the practice was authorized under a contemporary lottery law enacted through Shawanaga's inherent right to self-govern. (133) Ultimately, the Court held that the regulation of gambling was not an Aboriginal right for these two First Nations. The majority upheld the trial judge's decision that there "is no evidence to support a conclusion that gambling generally or high stakes gambling of the sort in issue here, were part of the First Nations' historic cultures and traditions, or an aspect of their use of their land". (134) The significance of this decision in the context of Indigenous law is that the Court held each right claimed must be considered in the circumstances in each case. (115) In other words, First Nations claiming an Aboriginal right start with an "empty box" and they must "prove that each matter they claim jurisdiction over was integral to their distinctive culture, and apparently regulated by them, at the time of European contact." (136) Subjecting jurisdiction and laws in the form of inherent self-government authority to the distinctive culture test subsumes Indigenous law and law-making under the authority and scrutiny of Canadian courts and confines them to Aboriginal rights discourse of the common law. (137) I do not argue against a practice and method for dialogue to ensure some measure of consistency and intelligibility between legal orders--I simply oppose the hierarchy of systems as a starting point for discussion, particularly when the position of the assumed authority is premised on unjust foundations.
The Court in Pamajewon would not recognize the appellants' right to self-government or their authority to regulate gaming on the reserves. It was not that the Court refused to recognize gaming as a traditional practice that led it to deny the appeal, (138) but that the appellants could not meet the evidentiary burden of proving the right according to the common law test. (139) Specifically, Lamer CJC agreed with the trial judge's decision that high stakes gaming and bingo were not traditional practices and that "commercial lotteries such as bingo are a twentieth century phenomena and nothing of the kind existed amongst aboriginal peoples and was never part of the means by which these societies were traditionally sustained or socialized." (140)
Lamer CJ appears to ignore his concurrent ruling against a "frozen rights" approach in assessing a traditional practice in Van der Peet. (141) The trouble with this case is that the importance of gaming within the community for any number of reasons, including strengthening relationships, easing tensions, entertainment, and a means of exchange, is absent.
According to the Court, the appellants failed to marshal the evidence to prove that gambling was historically regulated by Ojibwa communities prior to contact with Europeans (142) or "that gambling as a practice is connected enough to the self-identity and self-preservation of the appellants' aboriginal societies to deserve the protection of s. 35(1)". (143) Rather than accepting a broad right to self-government that includes the First Nations' laws and law-making authority regarding gaming, a traditional practice that intuitively had to be structured with rules, laws, and oversight (in other words regulated), the Court decided that the appellants fail the common law test for want of evidence. In other words, in adjudicating on the law-making authority of the First Nations, Indigenous law is reduced to facts that should be adduced as evidence (which were apparently not, or not effectively at least). The distinctive culture test, created by a judge in the European common law tradition, is an example of the inequity between disparate nations for the higher standard it places on First Nations than the Crown itself. Looking to the courts to recognize the inherent Indigenous right to governance and the law-making authority that follows is a problematic role for the courts for reasons just explained and to be discussed below. Another example of Indigenous laws being used in the courts is as evidence to prove Aboriginal title.
In Tsilhqot'in BCSC, Vickers J heard evidence of Tsilhqot'in law through witness testimony given by Elders. (144) Vickers held that this evidence of Tsilhqot'in law, in combination with other factors, was sufficient to prove the Tsilhqot'in people held their territory to the exclusion of others, allowing for a territorial title claim rather than a site-specific claim. (145) This application does not test Indigenous laws as an Aboriginal right per se, but still places them under the auspices of the court for scrutiny to be given weight as evidence. If opposing counsel are able to undermine the credibility of a witness (a skill litigators are trained in), testimony of oral history evidence pertaining to a First Nation's laws may be given little or no weight, despite the court's instructions that reconciliation requires the Indigenous legal perspective be given equal weight with the common law. (146) The adjudication of such matters highlights the problem of whether judges are properly trained, and therefore competent, to address Indigenous law.
The prospect of adducing Indigenous laws into evidence raises concerns about the competence to address such matters. Judges are not effectively trained to understand the knowledge, meaning, nuances, and complexity behind Indigenous legal orders. (147) This is largely because Indigenous laws are difficult to understand without some knowledge of the language, cultural practices, worldview and the "dynamic processes through which Indigenous peoples live their laws into the physical world." (148) The lack of competence in the Canadian judiciary in this regard makes the risk of presenting Indigenous laws as evidence something to be seriously considered. Whether Indigenous laws should be subjected to the scrutiny and adjudication of Canadian courts is a matter to be determined by First Nations with their lawyers, considering the circumstances. Although Indigenous laws may exceed a court's competence, recognizing the legitimacy of Indigenous law-making authority, it seems, is not. In 1999, a group of politicians led by a former premier of B C asked the court whether First Nations even possessed law-making authority, to which the Court replied, yes.
In 2000, the BC Supreme Court in Campbellrendered a decision on the issue of whether First Nations (namely the Nisga'a Nation) had any legislative authority within the Canadian legal system or whether legislative authority had been exhaustively divided between federal and provincial governments through sections 91 and 92 or the Constitution Act, 1867. (149) In his decision, Williamson J held that sections 91 and 92 did not divide all legislative power in Canada. In his reasons, he explained that there exists "unwritten 'underlying values' of the Constitution outside of the powers distributed to Parliament and the legislatures", leaving room for an Aboriginal "right to self-government akin to a legislative power to make laws". (150) To support this conclusion, Williamson J relied on the SCC decision in Mitchell v Peguis Indian Band, (151) where Dickson CJC (as he was then) held that:
the Indians' relationship with the Crown or sovereign has never depended on the particular representatives of the Crown involved. From 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.
Having ruled that Indigenous law-making power was not extinguished by the constitutional division of powers, Williamson J then set out to provide a review of Indigenous laws and law-making authority that have proceeded through the courts. The review includes the case of Connolly v Woolrich, where a Quebec Superior Court judge recognized as valid, the marriage of a non-Indigenous man to an Indigenous woman under Cree law. (152) In addition to what the court refers to as "custom" marriage, Williamson J also discusses cases upholding decisions based in Indigenous law in the subject matters of band membership, election, and adoption. (155)
The Campbell case was not appealed, nor has it been overturned in subsequent decisions. (154) Campbellstands as a case that not only recognizes Indigenous laws as a part of the fabric of Canadian law, it also supports the functionality of Indigenous laws through the recognition and validation of the judiciary. Although there are many limits to this case, such as Justice Williamson's acceptance of the Doctrine of Discovery as a legitimate extinguishment of Indigenous rights and title via the clear and plain legislative intent standard, (155) his recognition of Indigenous law is clear: "the Aboriginal peoples of Canada, including the Nisga'a, had legal systems prior to the arrival of Europeans on this continent and that these legal systems, although diminished, continued after contact." (156) In addition to recognizing the existence and validity of Indigenous laws, some courts extend their jurisdiction to facilitate the implementation of them in criminal law sentencing procedures.
One example of a Canadian court being supportive of Indigenous laws and process involves a recent hunting case in southern Vancouver Island. The First Nations Court, a division of the Provincial Court of British Columbia, is operational in five cities throughout the province. (157) The First Nations Court is based on restorative justice principles and processes. It is not a trial court, meaning that offenders must plead guilty to the charges against them before proceeding to the Court for sentencing. (158) In 2015, a case came before the First Nations Court in Duncan regarding two Esquimalt hunters who were charged with contravening provisions of the Wildlife Act by hunting Roosevelt Elk for food using a .22 calibre rifle. (159) In addition, the men were hunting in Ditidaht territory northeast of Cowichan Lake without consent from Ditidaht leaders.
The First Nation Court under Judge Buller-Bennet, with the consent of the accused and of the legal counsel, permitted a process to seek resolution of the matter according to Indigenous laws of the Coast Salish peoples. Proceedings were held at the Esquimalt First Nation Long House, which was attended by approximately 180 members of the Esquimalt and Ditidaht Nations. (160) The hunters acknowledged the shame they brought on their nation and apologized to the Ditidaht and Esquimalt peoples. (161) The two nations imposed several obligations on the hunters based on the Indigenous laws of the communities that will serve to restore the balance between the nations and facilitate healing from the offences. The judge and Crown counsel did not attend the Long House proceedings. Upon rendering their resolution, the Chiefs of the two nations reported the proceedings back to the judge, counsel, and conservation personnel, who were satisfied with the results. The Crown decided to drop the charges.
The Ditidaht hunting case went beyond standard Aboriginal sentencing circles, as an example of the western court system extending its jurisdiction to validate an Indigenous legal process carried out in a contempotary setting according to Indigenous laws. (162) This is a step in the right direction; however, the court only authorized the sentencing portion of its jurisdiction. As of yet, First Nations do not have the delegated jurisdiction to adjudicate the offences themselves, which is not to say these procedures do not happen nonetheless.
INDIGENOUS LAW OUTSIDE THE REALM
Simply because Canadian law does not authorize or recognize First Nations jurisdiction in a range of matters, including criminal law adjudication, does not mean Indigenous legal practices do not exist. Communities are tempered by a long history of distrust of Canadian law enforcement, who have a history of being culturally insensitive and racist. (163) It was not long ago when police showed up at people's homes with the local Indian agent to drag children off to residential schools. (164) Ceremonial practices such as the potlatch and sun dance were outlawed under the Indian Act, and people were taken away to prison for practicing their culture. (165) Take into consideration the first part of this paper in connection to the loss of land and inability to protect resources: quite simply, Canadian law is not the posterchild for justice in Indigenous communities across Canada. Therefore, when problems arise, a community with a long tradition of resolving harms and conflicts internally may hypothetically adjudicate matters and provide resolutions themselves according to their own legal traditions.
Indigenous laws continue despite Canada's perceived ultimate authority. Potlatches, feasts halls, long house ceremonies, and winter dances are all examples of the longevity of Indigenous legal practice outside of Canadian law, despite Canada's attempt to abolish them. (166) These practices are no longer illegal in Canada, however, Canadian law does not recognize them as practices of law. The legal processes arising within ceremonial practice fall under inherent jurisdiction applied to personality. When First Nations apply their inherent jurisdiction to matters off-reserve but within their traditional territory, which involves all Canadians, Canadian law simply does not recognize the authority. One example is Tsleil-Waututh's environmental assessment of the Kindel Morgan Trans Mountain Pipeline Expansion Project.
In 2015, Tsleil-Waututh released its Assessment of the Trans Mountain Pipeline and Tanker Expansion Proposal rejecting Kinder Morgan's proposal to triple the capacity of their pipeline from Edmonton to Burnaby, which is in Tsleil-Waututh's traditional territory. The assessment was conducted based on the traditional laws of the Nation, which found that the pipeline
does not represent the best use of Tsleil-Waututh territory and its water, land, air, and resources to satisfy the needs of our ancestors, and the needs of present and future generations. It has the potential to deprive past, current, and future generations of our community control and benefit of the water, land, air, and resources in our territory. (167)
At the end of the federal process, the National Energy Board and the federal government approved the project despite Tsleil-Waututh's assertion of its inherent jurisdiction, application of its laws to an assessment of the project, and well-reasoned rejection of the project. The project's approval means that Canadian authorities failed to recognize the legal authority of Tsleil-Waututh to decide what projects it will consent to in its own territory according to its own legal processes. This example (albeit only one) shows the status of First Nations jurisdiction outside of the framework of Canadian legal authority. Unless a matter can be entirely resolved within a community or nation without imposing any obligation on outside parties, it appears as though Indigenous laws are simply not recognized. (168)
The recent introduction of a Mohawk court on the Akwesasne reserve will serve as a test to see if Canada recognizes its validity. (169) The court was created through the Mohawk government outside of the auspices of Canada, without delegated jurisdiction from the federal government. According to the news release, Ottawa is working with Ontario and Quebec to produce a draft framework to recognize the Mohawk court.170 The court will adjudicate matters between people where Mohawk laws have been contravened. The first test will likely come when the first litigant unsatisfied with a decision takes their matter to a Canadian court. Conceivably, the validity of the Court will be established if parties agree to be bound by its decisions and accept those decisions. This is another example of a First Nation making law and legal decisions outside of Canada's jurisdiction.
WHERE TO GO FROM HERE?
According to this survey, there are limited spaces within the Canadian legal landscape, and none that could facilitate a fulsome resurgence of Indigenous legal orders. Where there are spaces, Canadian law forces Indigenous laws to mirror the form of western law's instruments and processes. Where Indigenous law is provided with the jurisdiction to engage a criminal law matter, First Nations are only permitted to address the final stage of the process at sentencing. Thus, the colonial oppression that the Canadian legal system is, and has been, imposing on First Nations continues, while Canadians of all walks of society struggle to find a way to release the law's grip to allow Indigenous laws and processes to function according to their own cultural traditions. From the recognition of marriage according to Cree law in 1867 in Connolly v Woolrich to the recognition of Coast Salish resolution practices in the Long House in 2015, clearly the "impact of colonial machinery on Indigenous nations and citizens" has changed little in the past 200 years. (171) The protection of undefined treaty and Aboriginal rights in Canada, two self-government agreements, and a few hard fought modern treaties in BC that exhaustively define the lawmaking authority of the signatory First Nations while subsuming them under Canada's colonial authority is anything but the fundamental change that is required to give respectful meaning to Indigenous laws within the Canadian state. Whether change, fundamental or otherwise, is possible, Lindberg raises a poignant question about implementation, "how can we expect a part of the colonial machine to hold the colonial machine responsible for colonial machinations ?" (172) Courts try to make space for Indigenous legal traditions, but by its very nature, the judiciary cannot dismantle the colonial machinery that gives it life. Yet change is needed, as the current path we are on offers imperceptible movement toward reconciling the many nations within Canada, and may stall at any moment with any change in government.
Substantive meaning in Indigenous laws will come from substantive change. According to Canadian legal scholar, Robert Samek, meaningful and effective legal reform requires serious commitment to effect proper social change:
Changing the letter of the law does not of itself cute one social ill. It merely changes the scenery on the stage; the play still goes on [T]he greatest illusion of all is to think of the present as fixed, as a piece of machinery which can be kept going forever by replacing a few parts here and thete, and patching up the test. Any social fabric can only take so much patchwork. Beneath every reforming patch yawns a tear. (173)
Significant change comes from legal reform, rather than tweaking an already archaic, inflexible, dilapidated system that has too many patches. The question is whether people are capable of change that will align contemporary society with the values and beliefs Canadians hold of ourselves. In the Tsilhqot'in BCSC trial decision, Vickers J contemplated what the consequence might be if the Crown suddenly admitted the Tsilhqot'in had existed on their territory for 200 years: "the real question to be answered . . . concerned the consequences that would follow such an admission." (174) Would the result be consequential? If so, for whom? Does doing nothing not continue the consequence of colonization on First Nations and their citizens, as Vickers J held: "[a]s a consequence of colonization and government policy, Tsilhqot'in people can no longer live on the land as their forefathers did"? (175)
So what of change ? What does it mean to reform Canada's legal system so Indigenous laws can participate in a meaningful way ? This is the topic of another paper. However, acknowledging the squatter state's unlawful presence and authority on the land would be a signal toward seeking meaningful reconciliation. Rejecting the suffocating and untenable test for title in BC is a starting point (a test Canada would fail). (176) Accept that BC is unceded Indigenous territoty, meaning Aboriginal title is everywhere and unextinguished--de facto title. This would require giving meaning to shared or joint jurisdiction in a manner that First Nations propose, according to their legal processes. Begin meaningful consultations with First Nations to develop legislation that sets out how to proceed when wanting to enter First Nations' territories through a process that includes respect, reciprocity, relationality, consent, and sharing. This would be a place to start.
The prospect of Nisga'a being granted limited governing powers was considered by some to potentially cause "a profound constitutional upheaval," which we now know simply was not true. (177) Initiating significant change that serves to decolonize the state and its practices will be significant, but the world will not end, the economy will not collapse, people will not be run off the lands, although the humility in accepting these possibilities is a part of what seeking true reconciliation requires. Much harm has been done for a very long time. Change will not be simple or easy, but the results will provide its own reward (e.g. strengthened values and beliefs, strengthened economy, enriched and more sustainable environmental practices, respectful relationships).
Delegating jurisdiction from the Crown's sovereign authority draws Indigenous laws into the fold of Canadian law without challenging the source of its authority. This practice is insidious, as it forces the manner and form Indigenous laws are expressed into western law. The western process of recreating Indigenous laws in its own image is another form of colonial violence. Through this process of incorporating Indigenous law into Canadian law, the latter is implicitly legitimized and strengthened without any meaningful discussion about the distinctive variations between legal orders that should shape the relationships between state law and Indigenous legal systems.
This paper shows how little space there is currently in the Canadian legal landscape for the flourishing of Indigenous laws on their own accord. The few places Indigenous laws function on their own vis-a-vis state law receive a steady and constant pressure to convert them into a western form. Undoubtedly, Indigenous laws and legal systems operate in, for, and by the communities and nations where they originate, which will not soon be subjected to Canadian legal practice. If Canada is serious about moving toward decolonization and reconciliation, then the existence and expression of Indigenous laws in the substance and substrate of the states legal landscape is an important goal. Equity and change are necessary. The question to Canadians is: are we ready to emerge from our own Dark Ages ?
ALAN HANNA ([dagger])
([dagger]) JD (University of Victoria), PhD Candidate in Law (University of Victoria). Alan teaches courses in Aboriginal law and Indigenous laws merhodology at the University of Victoria. The author thanks the Law Foundation of British Columbia for their generous support.
(1) Indigenous and Northern Affairs Canada (INAC), "Welcome to First Nation Profiles" (2016), online: INAC <aadnc-aandc.gc.ca>. INAC reports that it "recognizes" 618 First Nations, meaning there are others who are not officially recognized, such as the Hwlitsum First Nation in southern British Columbia.
(2) By "inter-national" I mean multiple national groups wirhin a single state. See for example John Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronro: University of Toronto Press, 2002) at 3-4 [Borrows, Recovering]. This is in contrasr to international relations, which are the international relationships between states. Indigenous nations conceivably have internarional Treaties between one another, bur are generally excluded from the global convention for not being "states" as defined by other internationally recognized srates. The United Nations Vienna Convention on the Law of Treaties, 23 May 1969,1155 UNTS 331, arr 1(a),8ILM 679 (entered into force 27 Jan 1980), which was signed in 1969 by several of the world's prominent states, including Canada, defines "Treaty" as "an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation". The Vienna Convention was implemented for the purpose of, inter alia, "recognizing the ever-increasing importance of treaties as a source of international law and as a means of developing peaceful co-operation among nations, whatever their constitutional and social systems" (ibid, Preamble). Yet, only recognized "states" can be a party to this international convention (ibid, 1(g)). There is a history of debate and challenge around what constitutes international treaties, some of which correctly argue that the historic treaties between Europeans and Indigenous nations are international treaties in every sense of the term. See e.g. Robert Williams, Jr, Linking Arms Together: American Indian Treaty Visions of Law and Peace, 1600-1800 (New York: Routledge, 1999); Harold Johnson, Two Families: Treaties and Government (Saskatoon: Purich Publishing, 2007); and John Borrows, "Wampum at Niagara: Canadian Legal History, Self-Government, and the Royal Proclamation" in Michael Asch, ed, Aboriginal and Treaty Rights in Canada:Essays on Law, Equality, and Respectfor Difference (Vancouver: UBC Press, 2002) 155 [Borrows, "Wampum at Niagara"]. These and other sources discuss the international treaty relations with Europeans and other Indigenous nations as long-held Indigenous legal practices. See also Sharon Venne, "Understanding Treaty 6: An Indigenous Perspective" in Michael Asch, ed, Aboriginal and Treaty Rights in Canada: Essays on Law, Equality, and Respectfor Difference (Vancouver: UBC Press, 2002) 173 at 184.
(3) The term 'First Nations' is used to represent pre-European Indigenous groups and occasionally to represent Indian Verband governments in those specific circumstances. The term 'Indigenous Nations' or groups is used more inclusively to describe any of the Indigenous groups of Canada however they conceive of and express their identities and membership. The term Indigenous person is preferred to the use of 'Indian' or Aboriginal'; however, Indian is used in the context of Canadian legislation or in historical terms. My position is that the word 'Indian' is a reflection on the settler state's ignorance and apathy toward change, and tend to use it in this light.
(4) This paper does not discuss the important subject of recognition politics. For a thorough discussion on this topic, see e.g. Glen Coulthard, "Subjects of Empire: Indigenous Peoples and the 'Politics of Recognition' in Canada" (2007) 6:4 Contemporary Political Theory 437-460.
(5) See John Borrows, Freedom & Indigenous Constitutionalism (Toronto: Toronto University Press, 2016) at 161 [Borrows, Freedom].
(6) For a discussion on Canadian law as comprising of Indigenous legal orders see John Borrows, Canada's Indigenous Constitution (Toronto: Toronto University Press, 2010) at 175-76 [Borrows, CIC].
(7) For example, some individuals have expressed to me a concern that the state may reject the validity of the First Nations' laws or use their laws against them without explaining fully how that might happen. The concern reflects a general mistrust of state authority and the risk of having Indigenous law subsumed under the auspices of state law.
(8) See Council of the Haida Nation, Kunst'aa Guu-Kunst'aayah Reconciliation Protocol (2009), online: <haidanation.ca>.
(9) See Tsleil-Waututh Nation Treaty Lands and Resource Department, Assessment of the Trans Mountain Pipeline and Tanker Expansion Proposal(26 May 2015), online: TWN Sacred Trust Initiative <https://twnsacredtrust.ca/wp-content/uploads/2015/05/TWN-Assessment-Summary-1 lxl7.pdf> [Tsleil-Waututh Assessment].
(10) Borrows, Recovering, supra note 2 at 30-33.
(11) I am not as interested in the nuanced and fluid meaning of sovereignry over time as I am in the residual effects of its asserrion on Indigenous lands wirhour the consenr of the original landholding inhabitants. For deeper discussions showing the changing substantive meaning of sovereignty through time, see e.g. David Armitage, "The Contagion of Sovereignry: Declararions of Independence since 1776" (2005) 52:1 South African Historical J 1; and Anrhony Pagden, "Fellow Citizens and Imperial Subjects: Conquest and Sovereignty in Europe's Overseas Empires" (2005) 44:4 History and Theory 28. To contrast the Crown's version of sovereignty that awards it control over Indigenous territories, see Gordon Christie, "Indigeneity and Sovereignty in Canada's Far North: The Arctic and Inuir Sovereignty" (2011) 110:2 The South Atlantic Quarrerly 329.
(12) Kent McNeil, "Sovereignty and Indigenous Peoples in North America" (2016) 22: UC Davis J Int'l L & Pol'y 81 at 88-89. See generally, Wendy Brown, "Sovereignty and Enclosure" in Walled States, Waning Sovereignty (MIT Press, 2010) 43.
(13) McNeil, supra note 12 discusses the difference between de facto and de jure sovereignty, the latter providing the potential for multiple sovereignties within a common space. The US refers to the sovereignty of Indian nations as "domestic dependant nations" within the boundaries of the US. See also Cherokee Nation v Georgia (183l) 30 US 1 [Cherokee Nation], cited in Campbellv. British Columbia (Attorney General), 2000 BCSC 1123 at para 91,  4 CNLR 1 [Campbell]. James Tully explains that "two (Indigenous) principles: free and equal peoples on the same continent can mutually recognise the autonomy and sovereignty of each other in certain spheres and share jurisdictions in others without incorporation or subordination": James Tully, Public Philosophy in a New Key: Volume I Democracy and Civic Freedom (New York: Cambridge University Press, 2008) 257 at 280.
(14) There is much discourse around the terminology of First Nations' sovereignty, self-governance, autonomy and self-determination. For example, Taiaiake Alfred argues that 'sovereignty' is an inappropriate model for First Nations to apply, as its hierarchal structure is discordant with First Nations' own inherent practices of governance: Taiaiake Alfred, Peace, Power, Righteousness, 2nd ed (Oxford: Oxford University Press, 2009) 55 at 56.1 prefer the model of autonomy and self-determination as proposed in Patricia Monture-Angus, Journeying Forward: Dreaming First Nations' Independence (Black Point, NS: Fernwood, 1999). Canadian courts have held that self-governance (not spoken of in terms of sovereignty, which is reserved for the Crown, or self-determination) was diminished but not extinguished by the Crown's assertion of sovereignty. See for example L'Heureux-Dube J's concurring decision in Rv Pamajewon,  2 SCR 821 at para 43, 27 OR (3d) 95; and Campbell, supra note 13 at para 93.
(15) Tully, supra nore 13 at 278. For a detailed discussion on consent from multiple perspecrives, see Jeremy Webber & Colin Macleod, eds, Between Consenting People: Political Community and the Meaning of Consent (Vancouver; UBC Press, 2010).
(16) The Duke of Newcastle, "Correspondence between the Secretary of State for the Colonies and Governor Douglas (19 October 1861)" in British Columbia Papers Connected with the Indian Land Question 1850-1875 (Victoria: Queen's Prinrer, 1875) at 20 [Duke of Newcastle].
(17) Joseph Trutch, "Correspondence between the Colonial Secretary and the Chief Commissioner of Lands and Works (28 August 1867)" in British Columbia Papers Connected with the Indian Land Question 1850-1875 (Vicroria: Queen's Printer, 1875) 41 at 42 [emphasis in original].
(18) The Privy Council in St Catharines Milling and Lumberv the Queen (1888), 14 AC 46 held rhat Indian title existed, but could be extinguished at the pleasure of the Crown. See also Calder v British Columbia (Attorney General),  SCR 313, 34 DLR (3d) 145 [Calder]; Delgamuukw v British Columbia  3 SCR 1010, 153 DLR (4th) 193 [Delgamuukw].
(19) Canada, Order-in-Council, 1875-0247, Correspondence, Reports of the Ministers of Justice and Orders in Council Upon the Subject of Dominion and Provincial Legislation 1867-1895 (Ottawa: Government Printers, 1896) at 1134 [DoJ Reports].
(20) Canada, Report of the Honorable Minister of Justice to the Department of Justice (19 January 1875) in DoJ Reporrs, ibid at 1024.
(22) Ibid at 1028.
(23) Ibid at 025.
(24) Ibid at 1026.
(25) Ibid at 1025, 1028.
(26) Ibid at 1028 [emphasis added].
(27) Tsilhqot'in Nation v British Columbia 2014 SCC 44 at para 69,  2 SCR256citing Guerin v the Queen  2 SCR335 at paras 87-93, 13 LDR(4th) 321 [Tsilhqot'in].
(28) DoJ Reports, supra note 19 at 1028.
(29) Alexander Morris, The Treaties of Canada with the Indians of Manitoba and the North-West Territories: Including the Negotiations on Which They Were Based, and Other Information Relating Thereto (Toronro: Prospero, 2000) at 2. Michael Asch argues that this statement describes the basis of the relationship that some colonial authorities, such as Lord Dufferin and Morris himself, shared as opposed to simply removing Indians from the land: Michael Asch, On Being Here to Stay: Treaties and Aboriginal Rights in Canada (Toronto: University of Toronto Press, 2014) at 159.
(30) "Ceded" and "surrendered": DoJ Reports, supra note 19 at 1026; "relinquishment" in Alexander Morris' letter to his superiors at Governmenr House: Morris, supra nore 29 ar 47; "extinction" in reference to the Selkirk Treaty: Morris, supra note 29 at 15; and "extinguish" in reference to the Robinson Treaties: Morris, supra note 29 at 16. Morris regarded the duty to treat with Indians as negotiations. For example, "The Lieutenant-Governor and party, and the other Commissioners appointed to negotiate a treaty with the Indians," in Morris, supra note 29 at 52. Morris' account of his negotiations is based on acquiring assent of the Indians to the terms of the treaties. For example, in his letter to the Minister of the Interior, Morris writes, "I also forward by parcel post, registered, the original of the assents to the treary of the various bands": Morris, supra note 29 at 153. Of course, the process of entering treaty would be unconscionable if one party entered but did not give their consent. This discussion has no bearing on what was agreed upon between the parties (i.e. the meeting of the minds), or what lawful processes the various First Nations had to follow to produce legal consent according to their legal orders, which are beyond the scope of this paper.
(31) Fournier wrote that the Province's practice of making arbitrary reserves without the consent of the Indians could lead to hostilities: DoJ Reports, supra note 19 at 1028. The Royal Proclamation of 1763 also presented the idea of maintaining peace in its statement, "And whereas it is just and reasonable, and essential to our interest and the security of our colonies": DoJ Reports, supra note 19 at 1026.
(32) Earl of Halsbury, The Laws of England, Being a Complete Statement of the Whole Law of England, vol 5 in Lord Simonds, ed, 3rded (London, UK: Butterworths, 1953) at 544 [Halsbury's Laws of England]. The first edition of Halsbury's Laws of England was published between 1907 and 1917. Although Halsbury's Laws of England were first published in the early 20th century, the laws being articulated were already well established in practice from the 19th century and earlier.
(33) Tsilhqot'in, supra note 27 (McLachlin CJC affirmingthat " [t]he doctrine of terra nullius . . . never applied in Canada" at para 69). The legal fiction of a political terra nullius suggests that "following Re Southern Rhodesia, it is possible, in principle, to find a society where 'the people were so primitive that they could not be regarded as an organized self-regulating society'": Catherine Bell & Michael Asch, "Challenging Assumptions: The Impact of Precedent in Aboriginal Rights Litigation," in Michael Asch, ed, Aboriginal and Treaty Rights in Canada : Essays on Law, Equality, and Respect for Difference (Vancouver: UBC Press, 2002) 38 at 62.
(34) Calder, supra note 18 at para 26.
(35) DoJ Reports, supra note 19 at 1026 [emphasis added].
(36) Duke of Newcastle, supra note 16 at 20.
(37) Letter from Alexander Morris to the Earl of Dufferin (March 1880) in Morris, supra note 29 at 1.
(38) See Asch, supra note 29 (asserting that "Furthermore, [Lord Dufferin's] view that treaties prior to settlement are required even though we may claim sovereignty and jurisdiction was evident in the same speech when he chastised the government of British Columbia for erroneously assuming that it had the authority to permit setrlemenr" at 159). See also James (Sakej) Youngblood Henderson, First Nations Jurisprudence and Aboriginal Rights: Defining theJust Society (Saskatoon: Native Law Centre, 2006) at 6.
(39) Morris, supra note 29 at 321 [emphasis added].
(40) DoJ Reports, supra note 19 at 1027-28.
(41) George R, Proclamation, 7 October 1763 (3 Geo III) reprinted in DoJ Reports, supra note 19 at 1026 [emphasis added].
(42) See generally Borrows, " Wampum at Niagara", supra note 2 at 171. Similarly, the Peace and Friendship treaties in eastern Canada signal the same commitment of time and energy ensuring the lands rightfully belonged to Indigenous peoples.
(43) The Royal Proclamation suggests consent is required before the Crown can do anything with Indigenous land, as colonial officials were instructed not to give any grants or patents for land without the land first "having been ceded to or purchased by us.": DoJ Reports, supra note 19 at 1026. Furthermore, several numbered Treaties explicitly state that the relevant tract of land was acquired by consent. For example, Treaty 3, "the desire of Her Majesty to open up for settlement, immigration, and such other purposes as to Her Majesty may seem meet, a tract of country bounded and described as hereinafter mentioned, and to obtain the consent thereto of Her Indian subjects inhabiting the said tract, and to make a treaty and arrange with them, so that there may be peace and good will between them and Her Majesty". See Morris, supra note 29 at 321 [emphasis in original].
(44) John Borrows, "Sovereignty's Alchemy: An Analysis of Delgamuukw v British Columbia" (1999) 37:3 Osgoode Hall LJ at 537 at 558.
(45) Tsilhqot'in Nation v British Columbia, 2007 BCSC 1700,  1 CNLR 112 [Tsilhqot 'in BCSC].
(46) Ibid. at para600.
(47) Ibid [emphasis added].
(48) See University of Victoria History Department et al, "We Do Not Know His Name: Klatsassin and the Chilcotin War" (2004), Great Unsolved Mysteries in Canadian History, online: <www.canadianmysteries.ca/sites/klatsassin/home/indexen.html>.
(49) Consent aligns with earlier Crown practices such as the Royal Proclamation in 1763 and the Treaty of Niagara in 1764 that served
to establish shared jurisdiction over the land. These agreements informed what Sakej Henderson calls a "treaty federalism" between the Crown and Indigenous Nations: James [sakej] Youngblood Henderson, "Empowering Treaty Federalism" (1994) 58:2 Sask L Rev 241 at 250. This kind of federalism recognized the inherent autonomous right to manage one's own affairs without interference from the other, while sharing the land. This concept is clearly outlined in Robert A Williams Jr's description of the Two Row Wampum, where each row represents "two paths or two vessels, traveling down the same river together. One, a birch bark canoe, will be for the Indian people, their laws, their customs and their ways. The other, a ship, will be for the white people and their laws, their customs, and their ways. We shall each travel the river together, side by side, but in our own boat. Neither of us will try to steer the other's vessel": Borrows, "Wampum at Niagara", supra note 2 at 164 citing Robert A Williams Jr, "The Algebra of Federal Indian Law: The Hard Trail of Decolonizing and Americanizing the White Man's Indian Jurisprudence" (1986) Wisconsin L Rev 219 at 291. Sharing the river, but never trying to steer the other's vessel does not align with the Crown's present assertion of sovereignty that it claims gave it full authority over Indigenous lands and people.
(50) Due to the tenuousness of the sovereign claim, any flaw threatens to be its undoing. Morris believed the government would honour its treaties with First Nations, as "he knew from his legal background and experience with land titles that any breach of the treaties would threaten the legitimacy of Canada's claim over the terrirory": Asch,supra nore 29 ar 161 citing Roberr J Talbor, Negotiating the Numbered Treaties: An Intellectual and Political Biography of Alexander Morris (Saskatoon: Purich Publishing Ltd, 2009) at 120.
(51) See Borrows, CIC, supra note 6 at 164.
(52) See Brown, supra note 12 at 44.
(53) See Michel Foucault, "Society Must Be Defended": Lectures at the College de France, 1975-1976, ed by Mauro Bertani & Alessandro Fontana, translared by David Macey (New York: Picador, 2003) at 26-27. See also Brown, supra note 12 at 49.
(54) Foucault, supra note 53 at 27-28. Although Foucault was contemplating France, his rheorerical discussion on the regional application of sovereignty has some application in this particular instance.
(55) See Cherokee Nation, supra note 13.
(56) Ibid. See also Robert A Williams, Jr The American Indian in Western Legal Thought: The Discourses of Conquest (New York: Oxford University Press, 1990) at 287-317 (for the developmenr of the erosion of tribal sovereignty); Williamson J in Campbell, supra note 13 at para 91 citing Marshall CJ in Cherokee Nation v Georgia, 30 US 1,16(1831).
(57) Stephen Cornell, "The Harvard Project Findings on Good Governance" (Speaking Trurh to Power III: Self Governmenr Options and Opportunities Forum delivered at the British Columbia Treaty Commission, 14-15 March 2002), online: <bctreaty.net/speaking-truth-power-truth-iii-book> at 5.
(59) See generally Kent McNeil, "The Jurisdiction of Inherent Right Aboriginal Governments" (Research Paper for the National Centre for First Nations Governance, 11 October 2007), online: <fngovernance.org/publications/research_article/the_jurisdiction_of_inherent_right_aboriginal_governments> at 1-3 (for a more detailed account of jurisdiction and its categories).
(60) See generally Ghislain Otis, "Territoriality, Personality, and the Promotion of Aboriginal Legal Traditions in Canada" in Law Commission of Canada, ed, Indigenous Legal Traditions (Vancouver: UBC Press, 2007) 136 at 137-40 (for a thorough discussion on territoriality and personality in jurisdiction).
(61) Geoff R Hall, "The Quest for Native Self-Government: The Challenge of Territorial Sovereignty" (1992) 50:1 UT Fac L Rev 39 at 40.
(64) Otis, supra note 60 at 147.
(65) Ibid. Although Otis makes this statement in reference to "communities that are the majority occupants of a recognized, secure land base", I argue that the statement applies to any non-treaty First Nation community, particularly in British Columbia, where a community has unextinguished Aboriginal title.
(66) Ibid at 151-55. Borrows also rakes up this discussion with examples from municipalities to inter-provincial laws being applied to visitors. See Borrows, CIC, supra note 6 at 159-60.
(67) Federal lands and parks, provincial Crown lands, municipalities, and fee simple properties are a few examples.
(68) Indian Act, RSC 1985, c 1-5 [Indian Act]; First Nations Land Management Act, SC 1999,c24[fiVXM/i].
(69) Inherent pre-sovereign authority is that which continues from the free and autonomous self-determining decision-making powers of a First Nation that existed before the assertion of Crown sovereignty and remains unextinguished without "clear and plain" intent to do so according to Canadian law, and I argue without the consent of the First Nation. See Hall J in Calder, supra note 18 at 404. I am not introducing any specific First Nations legal precedent or perspective here on whether a First Nation can surrender their inherent right to govern or make laws, but in this regard see Monture-Angus, supra note 14 at 30 (asserting that "[m]any Aboriginal people believe that the right to self-determination has never been and cannot be extinguished, that is to say that the right to self-determination is inherent" [emphasis in original]). See also McNeil, supra note 59 at 3.
(70) Indigenous and Northern Affairs Canada, The Government of Canada's Approach to Implementation of the Inherent Right andthe Negotiation of"AboriginalSelfGovernment, September 2010 update (Quebec: Department of Indian and Northern Affairs Canada, 1995) Part I: Policy Framework, online: <aadnc-aandc.gc.ca/eng/>. Note the language of the distinctive culture test from R v Van der Peet [ 1996] 2 SCR 507 at para 46, 137 DLR (4th) 289 [Van der Peet], where the right to govern is linked to matters "integral to their unique cultures, identities, traditions, languages and institutions."
(71) Indigenous and Norrhern Affairs, supra note 70, Glossary of Terms.
(72) Ibid, Part I: Policy Framework [emphasis added].
(73) McNeil, supra note 59 at 1. Although the United Nations Declaration on the Rights of Indigenous Peoples acknowledges Indigenous peoples' right to self-determination and autonomy (arricles 3 and 4), the authority of the state is never in quesrion (see e.g., article 5): UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UNGAOR 6lsr Sess, Supp No 49, UN DocA/RES/61/295, (2007), online: <www.refworld.org/docid/471355a82.html>.
(74) For the purposes of rhis paper, I will nor be discussing the difference between membership and the preferred citizenship beyond this: membership involves the process of recognizing and registering members of a band as defined in the Indian Act, whereas citizenship is the process by which a First Nation recognizes cirizens according to the Nation's own legal criteria.
(75) See McNeil, supra note 59 (asserting that "the source of the authoriry of the Brirish Parliament to legislate for Canada has never been adequately explained" at 3).
(76) Henderson argues that the treary creared a type of federalism he refers to as "treaty federalism". See Henderson, supra note 49, and additional scholars who argue similarly.
(77) The Indian Act was the compilation of a collection of previously enacted legislation by the colonial governments. See Canada, Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples, vol 1 "Looking Forward, Looking Back", c 9 "The Indian Act" (Ottawa, 1996) at 235-59; John Milloy, A National Crime: The Canadian Government and the Residential School System 1879 to 1986 (Winnipeg: University of Manitoba Press, 1999) at 20-21.
(78) I do not provide suggestions or examples of how Indigenous legal traditions may inform western-style law-makingpractices, which goes beyond the scope of this paper and will be discussed in subsequent work as part of my larger project.
(79) See Borrows, CIC, supra note 6 at 43.
(80) Indian Act, supra note 68, s 81. Naiomi Metallic discusses how section 81 of the Indian Act may provide immediate self-governance authority to band-led governments through a combination of delegated authority under the Act and a First Nation's inherent right to self-govern: Naiomi Metallic, "Indian Act By-Laws: A Viable Means for First Nations to (Re) Assert Control over Local Matters Now and Not Later" (2016) 67 UNBLJ 211. Although I agree with Metallic's argument as such, I lean more readily on the inherent self-governance right as providing the authority to govern a community's affairs. Acceding to Canada's authority to recognize the validity of band-made by-laws under the Act seems to lead to law-making recognizable to the state, in the state's image. I resist the notion (and I do not suggest that Metallic is making it) that this is the only way that Indigenous laws can, or should, be implemented. Metallic's paper does not grapple with how Indigenous legal traditions may be implemented through Indian Act bylaws under section 81.1 suggest that looking to the Indigenous legal traditions of a particular nation would reveal rights, obligations, and other lawful responsibilities toward children, families, and communities as a whole that inrerweave with principles of safety, protection, and maintenance of balance and health in a community that could be relied upon to inform the bylaw crearion process of which Metallic helpfully describes. I argue that a band should exercise their rights, including inherent rights to govern. Unforrunately, funding is ried to recognition, and for First Nations to take control over law-making they seem to be required to make laws in the state's legislative form. As Metallic argues, the devolurion of programs and services to band governmenrs creates an unnecessary burden on administrations. I wonder how much burden would be alleviated if the band's utilized practices and processes aligned more with their nation's legal traditions, rarher rhan conforming to the "terms and conditions set by the governmenr". In general, Merallic poinrs our how Indian Act bylaws provide immediate recognized self-governance authority as opposed to long self-governmenr agreement negoriation processes. I am interesred to learn if Indigenous legal rradirions can be appropriately represenred and implemented through colonial law-making methods such as those provided under the Indian Act.
(81) Indian Act, supra note 68, s 81.
(82) I do not discuss how Indigenous laws may inform various expressions of law for the purpose of engaging state law, as that goes beyond the scope of this paper and forms part of my central project.
(83) See e.g. CF Black, The Land is the Source of the Law: A Dialogic Encounter with Indigenous Jurisprudence (New York: Routledge, 2011); John Borrows (Kegedonce), Drawing Out Law: A Spirit's Guide (Toronto: University of Toronto Press, 2010); Robert Innes, Elder Brother and the Law of the People: Contemporary Kinship and Cowessess First Nation (Winnipeg: University of Manitoba Press, 2013); Sylvia McAdam (Saysewahum), Nationhood Interrupted: Revitalizing Nehiyaw Legal Systems (Saskatoon: Purich, 2015); Val Napoleon, Ayook: Gitksan Legal Order, Law, and Legal Theory (PhD Dissertation, University of Victoria, 2009) [unpublished]; Chief John Snow, These Mountains are Our Sacred Places: The Story of the Stoney People (Toronto : Samuel Stevens, 1977) at xii-13; Indigenous Bar Association, "Accessing Justice and Reconciliation Project: Final Report" (4 February 2014), online: <indigenousbar.ca>.
(84) See Indian Act, supra note 65 at s 81 (1)(r). Some First Nations are working to include the traditional resolution of banishment back into their contemporary legal system. See e.g. Bryn Levy, "Sask. First Nation Eyes Banishment Law", 650 CKOM(\6 September 2016), online: <ckom.com>.
(85) Indian Act, supra note 65 at s 86(1). Many existing bylaws under section 81 can be viewed on the First Nations Gazette website, online <www.fng.ca>.
(86) At this point I am not commenting on the potential value or benefit or critique of whether Indigenous legal systems must reflect western pracrices, which is a discussion rhat goes beyond the scope of this paper.
(87) Cusrom election being election informed by customary practices. See Borrows, CIC, supra note 6 (asserting that customary practices are "defined as rhose pracrices developed through repetitive patterns of social interaction that are accepted as binding on those who participate in them" at 51). In other words, loosely defined, cusrom election would include the past practices of the community for selecting irs leadership. See Bone v Sioux Valley Indian Band No. 290, 107 FTR 133 at paras 31 -32, [ 1996] 3 CNLR 54 [Bone] for the court's definition of custom election.
(88) Indian Act, supra note 65 at s 2(1).
(89) Bone, supra note 87 at para 32. See also Shin Imai, The 201S Annotated Indian Act and Aboriginal Constitutional Provisions (Toronto: Carswell, 2014) at 59; McNeil, supra note 59 at 3, n 6.
(90) The minister or band council may issue a permit authorizing a landfill on reserve land under section 5. See Indian Reserve Waste Disposal Regulations, CRC, c 960. The minister may also issue permits to cut timber for individual or commercial purposes with consent of band council, under section 4 and section 5. See Indian Timber Regulations, CRC, c 961; Indian Timber Harvesting Regulations SOR/2002-109.
(91) FNLMA, supra note 68.
(92) Ibid, s 20(1).
(93) Ibid, s 20(2).
(94) Ibid, ss 20(3)-(4).
(95) The form of and method for articulating and expressing Indigenous laws in a manner that achieves meaning across legal orders is beyond the scope of this paper. However, scholars caution against using western concepts, and I add western forms, of communicating law for their potential to be re-colonising. See Alfred, supra note 14; Geoff Hall, supra note 61 (stating that "[s]ince much of the injustice suffered by native people under existing law results from the attempt to impose Anglo-Canadian legal concepts where they are inappropriate, the use of existing law to provide models for native self-government may simply substitute one set of inappropriate Anglo-Canadian concepts for another" at 40). This is not the same as suggesting Indigenous legal practices must be frozen in the past, but merely that we must "be free to act in complex, multifaceted, and variable ways": Borrows, Freedom, supra note 5 at 18.
(96) See Lance Finch, "The Duty to Learn: Taking Account of Indigenous Legal Orders in Practice" (Paper delivered at the Continuing Legal Education BC Indigenous Legal Orders and the Common Law Conference, 15 November 2012) [unpublished]; Raymond Austin, Navajo Courts and Navajo Common Law: A Tradition of Tribal Self Governance (Minneapolis: University of Minnesota Press, 2009) at 38.
(97) See Borrows, CIC, supra note 6 (asserting that " [l]aws are regarded as intelligible if those who must abide by their precepts 'can foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.' On this basis, some people might question the legal intelligibility of Indigenous law" at 138.) Unintelligible laws may be translated into an intelligible western legal principle. See ibid ax. 139. ibid Raymond Austin argues that traditional concepts that are difficult to translate into English are "glossed" to describe the term in English, as some basic legal precepts cannot directly answer western legal questions and must be translated. See Austin, supra note 96 at xxiv, 45, 157. See also Justin Richland, Arguingwith Tradition: The Language of Law in Hopi Tribal Court (Chicago: University of Chicago Press, 2008) ar 66-68.
(98) Simon Fraser University Cenrre for Dialogue, Step by Step: Final Report for the Shared Decision Making in BC Project (March 2015) at 4, online: <sfu.ca>.
(99) Ibid at 46 [emphasis added].
(100) See Ted Palys & Wenona Victor, "Qwi:qwelst6m, the Sto:lo and Self-Determination" in Law Commission of Canada, ed, Indigenous Legal Traditions (Vancouver: UBC Press, 2007) 12 at 13-14.
(101) Haida Gwaii Management Council, Frequently Asked Questions (2013), online: haidagwaiimanagementcouncil.ca/faqs.html>.
(102) Kunst'aa guu-Kunst'aayah Reconciliation Protocol (2009), online: <www.haidanation.ca/wp-content/uploads/2017/03/Kunstaa-guu_Kunstaayah_Agreemenr.pdf>.
(103) Haida Gwaii Managemenr Council, supra note 101.
(104) I use the term application of law to mean laws applied to a given subject matter, whereas the implementation of laws means acrively bringing law into existence with (to use western terms) force and effect.
(105) This is common knowledge among Indigenous people. I have personal knowledge through teachings given to me by Elders in several communities from Secwepemc to Dene. See e.g. Chief Snow, supra note 83 at 2-11.
(106) See e.g. the Heiltsuk Nation exercising their inherent jurisdiction to regulate fishing in the hotly contested and dwindling herring fishery off the central coast of BC, an activity the media frames as a "protest": The Early Edition, "Heiltsuk Protest Shuts out Commercial Herring Fishermen", CBC News (2 April 2015), online: < www.cbc.ca/news/canada/british-columbia/heiltsuk-protest-shuts-out-commercial-herring-fishermen-1.3019583>.
(107) I am not considering the Yukon modern agreements or devolution agreements in Nunavut and the Northwest Territories, where some First Nations gain jurisdiction to lands under various measures within the agreements.
(108) Tsilhqot'in, supra note 27 at paras 70,73-75.
(110) The potential is great for the application of Indigenous laws through governance on Aboriginal tirle land. For an example of how some Tsilhqot'in legal principles apply to land use. See Alan Hanna, "Making the Round: Aboriginal Title in the Common Law from a Tsilhqot'in Legal Perspective" (2013-2014) 45:3 Ottawa L Rev 365 at 381-83, 388-91.
(111) See John Borrows, "The Durabiliry of Terra Nullius: Tsilhqor'in Nation v British Columbia" (2015) 48:3 UBC L Rev 701.
(112) Tsilhqot'in, supra note 27 at para 151.
(113) Rv Gladstone,  2 SCR723,  SCJ No 79 [Gladstone].
(114) Ibid at paras 67,75.
(115) Delgamuukw, supra note 18 at para 165.
(116) Tsilhqot'in, supra note 27 at paras 83-84.
(117) See the discussion on Indigenous law as evidence below.
(118) Friends of Nemiah Valley, "Dasiqox Tribal Park: Nexwagwez?an - There for us", online: <www.dasiqox.org>.
(119) Excerpt from Treaty No. 8 between Her Majesty the Queen and the Cree, Beaver, Chipewyan and Other Indians (21 June 1899), online: <www.aadnc-aandc.gc.ca/eng/1100100028813/1100100028853>.
(120) See e.g. Tsawwassen First Nation Final Agreement between Her Majesty the Queen and the Tsawwassen First Nation (6 December 2007), online: <www.aadnc-aandc.gc.ca/DAM/DAM-INTER-BC/STAGING/texte-text/tfnfa_1100100022707_eng.pdf> at clause H: "Tsawwassen First Nation's existing aboriginal rights are recognized and affirmed by the Constitution Act, 1982, and the Parties have negotiated this Agreement under the Brirish Columbia Treaty Commission process to provide certainty in respect of those rights and to allow rhem to conrinue and to have the effecr and be exercised as ser out in this Agreement" [emphasis added].
(121) Nisga'a Final Agreement Act, SC 2000, c 7; Nisga'a Final Agreement Act, SBC 1999, c 2; Tsawwassen First Nation Final Agreement Act, SC 2008, c 32; Tsawwassen First Nation Final Agreement Act, SBC 2007, c 39 [TFNFAA]; Maanulth First Nations Final Agreement Act, SC 2009, c 18; Maanulth First Nations Final Agreement ActSlsC 2007, c43; Tla'amin Final Agreement Act, SC2014,c 11; Tla'amin Final Agreement Act,SBC 2013, c 2.
(122) TFNFAA, supra note 121 at Chapter 2, s 11 ("This Agreement constitutes the full and final settlement in respect of the aboriginal rights, including aboriginal title, in Canada of Tsawwassen First Nation"); ibid. Chapter 2, ss 13, 14.
(123) See e.g. ibid, chapters 4, 8-11.
(124) SeeNisga'a Final Agreement between Her Majesty the Queen and the Nisga'a Nation (27 April 1999) at 25, online: <www.nnkn.ca/files/u28/nis-eng.pdf>.
(125) Relative to the 198 recognized First Nations in BC, according to INAC, "About British Columbia First Nations", online: <www.aadnc-aandc.gc.ca/eng/1100100021009/1314809450456>, there are two self-government agreements apart from the modern treaties : An Act to Give Effect to the Westbank First Nation Self Government Agreement, SC 2004, c 17 and Sech elt Indian Band Self Government Act, SC 1986, c 27.
(126) See e.g. Westbank First Nation Self Government Agreement between Her Majesty the Queen and the Westbank First Nation (3 October 2003) at 21, online: <www.wfn.ca/docs/wfn_self_government_agreement.pdf>.
(127) Ibid at 11.
(128) See the list of laws under Westbank First Nation, "WFN Laws", online: <www.-wfn.ca/black-bear/wfnlaws.htm>. See also the preamble of James Bay and Northern Quebec Agreement between Her Majesty the Queen and the Grand Council of the Crees (of Quebec) and the James Bay Crees, the Northern Quebec Inuit Association, the Inuit of Quebec and the Inuit of Port Burwell (11 November 1975) at 3, online: <www.gcc.ca/pdf/LEG000000006.pdf> (showing the authority delegated to Cree communities in the capacity of municipalities).
(129) Mitchell v Minister of National Revenue, 2001 SCC 33 at para 9,  1 SCR911; Rv Marshall, 2005 SCC 43 at paras 47,128,  2 SCR 220; Van derPeet.supra note 70 at para 49; Delgamuukw, supra note 18 at para 112; Tsilhqot'in, supra note 27 at paras 32, 35.
(130)  2SCR821,138 DLR (4th) 204 [Pamajewon] (also cited asRv Jones). This is a narrow analysis beyond the generally accepted view that Pamajewon stands for the denial of a broad right to self-government.
(131) Ibid at para24.
(132) Ibid at paras 23-29.
(133) Ibid at paras 14, 26.
(134) Ibid at para 29.
(135) Ibid at para 27.
(136) McNeil, supra note 59 at 14.
(137) Pamajewon, supra note 130 at para 24 ("[i]n so far as they can be made under s. 35(1), claims to self-government are no different from other claims to the enjoyment of aboriginal rights and must, as such, be measured against the same standard" as established in the Van der Peet test).
(138) Ibidzt para 26 ("the applicants rely in support of their claim on the fact that the 'Ojibwa people had a long tradition of public games and sporting events, which pre-dated the arrival of Europeans'").
(139) Ibid at para 30 (" [g]iven this evidentiary record, it is clear that the appellants have failed to demonstrate that the gambling activities in which they were engaged, and their respective Bands' regulation of those activities, took place pursuant to an aboriginal right recognized and affirmed by s. 35(1) of the Constitution Act, 1982").
(140) Ibid at para 29.
(141) Van der Peet, supra note 70 (asserring that
Because the practices, traditions and customs protected by s. 35(1) are ones that exist today, subject only to the requirement that they be demonstrated to have continuity with the practices, customs and traditions which existed pre-contact, the definition of aboriginal rights will be one that, on its own terms, prevents those tights from being frozen in pre-contact times. The evolution of practices, customs and traditions into modern forms will not, provided that continuity with pre-contact ptactices, customs and traditions is demonstrated, prevent their protection as abotiginal tights...
at para 64).
(142) Pamajewon, supra nore 130 at para 28.
(143) Ibid at para 40 (L'Heureux-Dube J concurring).
(144) Tsilhqot'in BCSC, supra note 47 at paras 426-436. My intention here is not to provide a detailed analysis of Aboriginal title, which goes beyond the scope of this paper. I provide the Tsilhqot'in decision as an example of where Indigenous laws were provided as evidence in court to prove a common law right, in contrast to Pamajewon. The Tsilhqot'in Nation do not suddenly begin applying their laws after this decision (although they are still searching for effective ways to do so more thoroughly than in the colonial past), a practice that continues to inform decisions, as I explain in detail elsewhere. See Alan Hanna, "Making the Round: Aboriginal Title in the Common Law from a Tsilhqot'in Legal Perspective" (2015) 45:3 Ottawa L Rev 365.
(145) Tsilhqot'in BCSC, supra note 47 at paras 912, 925-29, 935-38, 944. See also Gary Campo, "Do Aboriginal Laws Make a Difference: William v. British Columbia et al." (Paper delivered at the Canadian Bar Association, National Aboriginal Law Conference: Working With and Within Indigenous Legal Traditions, 11 April 2013), online: <www.woodwardandcompany.com/wp-content/uploads/pdfs/DoAboriginal LawsMakeaDifference-April 112013Final.pdf>.
(146) Van der Peet, supra note 70 at paras 49-50; Delgamuukw, supra note 18 at para 147.
(147) Finch, supra note 96.
(148) Minnawaanagogiizhigook (Dawnis Kennedy), "Reconciliation without Respect?" in Law Commission of Canada, ed, Indigenous Legal Traditions (Vancouver: UBC Press, 2007) 77 at 101; Finch, supra note 96 at 1.
(149) Despite the typical colonial position Williamson J took in his decision when he held that the Doctrine of Discovery and the Crown's assertion of sovereignry were legitimate mechanisms for vesting title in Indigenous lands in the Crown, as, he held, was adopted by the Supreme Court of Canada, I am offering this decision as an outlier rhat stands for the position that inherent Indigenous law-making authority was not extinguished by the constitutional division of powers. See Campbell, supra nore 13 ar paras 90-95. For the principle that the assertion of sovereignty vests title in the Crown, see R v Sparrow,  1 SCR 1075 at para 49,70 DLR (4th) 385, where Dickson CJC held:
It is worth recalling that while British policy towards the native population was based on respect for their right to occupy their traditional lands, a proposition to which the Royal Proclamation of 1763 bears witness, there was from the outset never any doubt that soveteignty and legislative power, and indeed the underlying title, to such lands vested in the Crown.
(150) Campbell, supra note 13 at para 81.
(151)  2 SCR 85 at para 35,71 DLR (4th) 193.
(152)  QJNo 1,1 CNLC 70 at 97. The critique of this case as representing acceptance of Indigenous law in a Canadian court is that the Cree law was valid as customary in the absence of European law having not yet been introduced to the area. See Perry Shawana, "Legal Processes, Pluralism, and the Governance of Carrier Medicine Knowledge" in Law Commission of Canada, ed, Indigenous Legal Traditions (Vancouver: UBC Press, 2007) 114 at 126.
(155) Campbell, supra note 13 at paras 99-104.
(154) Up to the publication date of this article.
(155) See Campbell, supra note 13 at paras 90-95; on limitations see also Kent McNeil, supra note 59 at 18.
(156) Campbell, supra note 13 at para 85. This decision conrrasrs with House of Sga'nisim v Canada (Attorney General), 2013BCCA49.359DLR (4th) 231, where the court held that law-making authority delegated under a rreary is valid as it remains subjecr to federal and provincial oversighr and infringement.
(157) New Westminster (since November 2006), North Vancouver (includes Whistler, Squamish and the North Shore, since February 2012); Kamloops (since March 2013), Duncan (since May 2013), and Merrit (since October 2017). See Provincial Court of British Columbia, "Specialized Courts", online: <www.provincialcourt.bc.ca>. Two additional courts are proposed through the Tsilhqot'in National Government in Williams Lake and the Sto:lo Tribal Council in Agassiz. See Sunny Dhillon, "Two More Firsr Narions Courrs Proposed in Brirish Columbia", The Globe and Mail (6 March 2016), online: <www.theglobeandmail.com>.
(158) See Interview of Buller-Bennet J by Tyson Atleo (?lkaatius) (2 June 2015), online: <www.youtube.com/watch?v=BqlBN4ZNuiE>.
(159) R vJoseph Thomas andR v Christopher Brown, 2015 First Nations Court, Duncan. The details of this matter are from the First Nations Court decision.
(162) Sentencing circles that take place throughout Canada are not discussed in detail, as the Ditidaht case represents an example of autonomous First Nations-led processes.
(163) See e.g. British Columbia, Cariboo-Chilcotin Jusrice Inquiry, Report on the Cariboo-Chikotin Justice Inquiry (Victoria: Inquiry: 1993),online: <www.llbc.leg.bc.ca/public/pubdocs/bcdocs/149599/cariboochilcorinjusrice.pdf>.
(164) Trurh and Reconciliarion Commission of Canada, Final Report of the Truth and Reconciliation Commission of Canada, Volume 1: Summary (Toronto: Lorimer, 2015) ar 60-62; Canada, Report of the Royal Commission on Aboriginal Peoples, Volume 1-Looking Forward, Looking Back (Ottawa: RCAP, 1996) at 312; British Columbia, Cariboo-Chilcorin Justice Inquiry, Report on the Cariboo-Chilcotin Justice Inquiry (Vicroria: Inquiry, 1993) at 10.
(165) See Tina Loo, "Dan Cranmer s Potlatch: Law as Coercion, Symbol, and Rhetoric in British Columbia, 1884-1951" (1992) 73:2 Can Historical Rev 125.
(166) For examples of continued legal practice see Napoleon's Ayook, supra note 83; Mark Ebert, "Feasting Judicial Convergence: Reconciling Legal Perspectives through the Potlatch Complex" (2013) 18 Appeal 21; and Paulette Regan, "An Apology Feast in Hazelton: Indian Residential Schools, Reconciliation, and Making Space for Indigenous Legal Traditions" in Law Commission of Canada, ed, Indigenous Legal Traditions (Vancouver: UBC Press, 2007) 40.
(167) Tsleil-Waututh Assessment, supra note 9 at 3.
(168) The author acknowledges that the approval process for pipelines is complex, as pipelines cross many jurisdicrional boundaries and involve the interesrs of multiple parries. Should one First Nation have a veto over such a multi-faceted project? Without answering this, I suggest that more needs to be done to accept Indigenous legal processes in relationship with state-centted processes such as pipeline approvals. The Tsleil-Waututh assessmenr offers many important insights into the legal tradition, and is an expression of Coast Salish law in general. Canada's refusal to acknowledge Indigenous laws and processes in these project approval processes reflects the Crown's general struggle with how to effecrively and appropriarely relare to Indigenous laws. The Haida Nation is one exception to this statement, where proponenrs will seek consent from the HNC regardless if they already have a provincial permit or license (information shared with the author by a member of the HNC at the "Indigenous Law and Resource Stewardship" gathering in Maple Ridge, BC on 29 June 2016). This shows rhat validiry of a legal authority or process derives from the willingness of affected parties to participate in and be bound by the particular legal regime. See Victor Muniz-Fraticelli, "The Problem of Pluralist Authority" (2014) 62:3 Political Studies 556 at 556.
(169) Giuseppe Valiante, "Akwesasne Creates First Court in Canada for and by Indigenous People", The Canadian Press (2 Ocrober 2016), online: <www.cbc.ca>.
(171) Tracey Lindberg, Critical Indigenous Legal Theory (PhD Dissertation, University of Ottawa, 2007) at 345 [unpublished].
(172) Ibid at 351.
(173) Roberr Samek, "A Case for Social Law Reform" (1977) 55:3 Can Bar Rev 409 at 412, 419 cited in Michael M'Gonigle, "Logics as Law: Rethinking Social Regulation in a Full Planet, that is, Green(ing) Legal Theory in the Animacene" [forthcoming in 2017].
(174) Tsilhqot'in BCSC, supra note 47 at para 1373.
(175) Ibid at 1379.
(176) The Crown would fail the exclusive use and occupation components of the test at the time of the assertion of sovereignty. The test is untenable, as First Nations are forced to meet a test that was only recently cobbled together by the courts, while BC, despite having intentionally ignored colonial law, policy and practice of acquiring lawful interest in Indigenous lands in the 19th century, benefits by the evidentiary burden placed on First Nations to prove they meet the test.
(177) Campbell, supra note 13 at para 149.
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|Publication:||University of British Columbia Law Review|
|Date:||Jan 1, 2018|
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