Confounding concepts: the judicial definition of the constitutional protection of the aboriginal right to self-government in Canada.

• Author: Luk, Senwung

The content of the constitutionally protected Aboriginal right to self-government in Canada is currently determined by the approach established in R. v. Pamajewon. This case applied the test for the constitutional protection of Aboriginal rights as established in R. v. Van der Peet. The test holds that only those practices, customs and traditions that are continuous with and integral to the distinctive culture of an Aboriginal community as it existed prior to European contact will attract constitutional protection.

This article examines how the Van der Peet approach is difficult to apply in practice and leads to an indeterminate definition of constitutional protection for Aboriginal self-government rights. The Van der Peet test is particularly indeterminate when applied to self-government rights. Consider self-governance and lawmaking as pre-contact practices, customs or traditions. At their most general, self-governance must have been integral to all pre-contact communities. The power-conferring rules that were customary in historic Aboriginal communities likely came with no evidence of limits to jurisdiction. Moreover, the recognition of customary rules also raises issues about whether any government infringement of the right of Aboriginal communities to set their own boundaries would be unconstitutional.

The article concludes by looking briefly at the American approach to the analogous issue and how it avoids the problems with the Pamajewon approach.

A l'heure actuelle, c'est l'approche degagee dans l'arret R.c. Pamajewon qui definit le contenu du droit des autochtones, protege par la Constitution, a l'autonomie gouvernementale au Canada. Dans cette affaire, la CSC a applique la norme en matiere de protection constitutionnelle des droits ancestraux etablie dans l'arret R. c. Van der Peet. Selon ce critere, seules les pratiques, coutumes et traditions faisant pattie integrante de la culture distinctive d'une collectivite autochtone, telle qu'elle existait avant le contact avec les Europeens, beneficieront d'une protection constitutionnelle.

Cet article examine la difficulte qu'il y a appliquer l'approche de l'arret Van der Peet dans la pratique et fait observer qu'elle mene a une definition vague de la protection accordee par la Constitution aux droits ancestraux en matiere d'autonomie gouvernementale. Le critere elabore dans l'arret Van der Peet est particulierement incertain lorsqu'on tente de l'appliquer aux droits a l'autonomie gouvernementale. Si l'on considere l'autonomie gouvernementale et les pouvoirs legislatifs comme des pratiques, coutumes et traditions anterieures au contact avec les Europeens, on peut aisement supposer que l'autonomie gouvernementale devait faire partie integrante de toutes les collectivites anterieures a l'arrivee des Europeens. Les regles conferant des pouvoirs qui etaient coutumieres dans les collectivites autochtones traditionnelles ne contiennent auctme restriction a l'etendue de ces pouvoirs. La reconnaissance des regles coutumieres souleve en outre des questions quant la constitutionnalite de toute atteinte gouvernementale au droit des collectivites autochtones etablir leurs propres limites.

L'article conclut en comparant cette approche a celle des Etats-Unis sur le sujet et montre la maniere dont ils ont su eviter les problemes qui decoulent de l'arret R.c. Pamajewon.

Table of Contents I. INTRODUCTION II. SITUATING THE PROBLEM: WHY SELF-GOVERNMENT AND WHY PAMAJEWON? III. THE PAMAJEWON LITIGATION IV. THE REASONING IN PAMAJEWON: SOME PRELIMINARIES V. THE REASONING IN PAMAJEWON: CONCEPTUAL PROBLEMS A. The Recognition of Power-Conferring Rules B. Levels of Generality C. Absence of Evidence of Limits to Jurisdiction D. Recognition of Norms as Norms of a Community VI. THE US ALTERNATIVE TO THE VAN DER PELT HISTORICIST APPROACH VII. CONCLUSION I. INTRODUCTION

Aboriginal communities in Canada have a very different relationship to the Canadian state than non-Aboriginal communities. One aspect of that difference is that organized Aboriginal societies pre-date the assertion and acquisition of sovereignty by the Crown, and the establishment of settler societies and governments. As Justice Judson wrote in the landmark Supreme Court of Canada case Calder v. British Columbia (A. G.), "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." (1) That is, Aboriginal communities, since time immemorial, have done the things that organized societies do: they have established rules of membership, they have established rules of conduct prohibiting certain behaviour, and they have assigned different statuses to members, empowering them to do things that would otherwise be prohibited or frowned upon.

Through the centuries of colonial experience, during which law and policy have sought at times to accentuate the separateness of Aboriginal communities from non-Aboriginal communities, and at other times to obliterate it, Aboriginal communities have remained a world apart from their non-Aboriginal neighbours. Most Aboriginal people are still geographically and legally separate from the rest of Canada. (2) In short, Aboriginal communities relate to the rest of Canada as communities apart.

How and to what extent can the separateness of Aboriginal societies be expressed in the practice of governance? Recently, and especially since "aboriginal rights" were "recognized and affirmed" in the Constitution Act, 1982, (3) articulating the separateness of Aboriginal government has taken on the character of rights claims. The litigants and the courts have tried to articulate a right to self-government from the text of the constitution. As this article will show, the open-endedness of the text articulating this right has meant that judges have the burden of articulating that difference and its legal significance. The Supreme Court of Canada has taken some early stabs at the problem, most notably in R. v. Pamajewon. (4) In that case, Chief Justice Lamer, in reasons which commanded the support of all but one judge of the Court, established a test for self-government rights that restricted their constitutional protection to only those practices, customs and traditions that have continuity with practices, customs and traditions that were integral to the Aboriginal community as it existed prior to European contact. (5) The aim of this article is to show that the Court, in its reasons in that case, takes a conceptually flawed approach to understanding the kinds of norms that Aboriginal communities might use in their governance. It uses insights from analytical jurisprudence to identify some problems with the conceptual assumptions that the Court makes in its reasoning. It shows that the Court's approach mires any analysis according to the approach set out in Pamajewon in conceptual dead-ends and dooms the courts to unpredictable decisions about the centrality of governmental practices and the jurisdictions they command. Based on this critique, the article concludes by considering how the approach to the analogous problem used in the United States avoids the problems that it identifies.

2. SITUATING THE PROBLEM: WHY SELF-GOVERNMENT AND WHY PAMAJEWON?

   In order to understand the persistent significance of the Pamalewon case, this article will briefly outline some of the history of Aboriginal-Crown relations leading up to the decision.

   Prior to the late nineteenth century, imperial policy toward Aboriginal communities in North America tended to recognize the authority of those communities over their own members. (6) The common law doctrine of continuity presumed that "in inhabited territories acquired by conquest or cession, Parliament or the Crown could abrogate or alter local law, but until this power was exercised, local laws, institutions, customs, rights and possessions remained in force." (7) (Consider the alternative: without the doctrine of continuity, English law would deem all property rights nonexistent and all marriages invalid as soon as the Crown asserted sovereignty over the colonized territory. (8)) As late as 1838, William Jarvis, the Superintendent of Indian Affairs, reported a case where an Anishinabek community on the French River in (then) Upper Canada found in their midst a member of the community who had apparently become afflicted with a serious mental illness, and had become a danger to the community. The community, after discussing the matter in council, decided to execute the man. Jarvis reported this without any indication that he saw a role for the Crown in the affairs and decisions of the Anishinabek community. (9) In other examples, Cree rules about marriage were held to be as valid as Roman Catholic marriage rules as late as 1867, (10) and cases where Aboriginal rules of social organization were recognized by common law courts continued into the late nineteenth century. (11)

   The Crown began to use law to seriously meddle in the affairs of Aboriginal communities in the late nineteenth century, (12) though it would be imprudent to conclude that the enactment of a law garnered perfect conformity from the officials and Aboriginals who were supposedly subject to it. Nonetheless, enactments with important implications for self-government rights were pursued. For instance, the Indian Act of 1876 originally defined an Indian "band" as "any tribe, band or body of Indians" who held reserve lands in common, (13) and left norms about who belonged to any particular band to the band itself. By the early twentieth century the government had enacted statutes to govern the rules of membership of Indian bands, (14) establishing complicated rules of descent and lineage. That control was sufficiently effective and resulted in the Crown establishing an Indian Register in 1951 to purportedly comprehensively manage and record the band affiliation of individual Indians. (15) More than just...