Ethnohistory and the Development of Native Law in Canada: Advancing Aboriginal Rights or Re-inscribing Colonialism?

• Author: Arthur J. Ray
• Pages: 1-26

1

  

Ethnohistory and the Development of

Native Law in Canada: Advancing Aboriginal

Rights or Re-inscribing Colonialism?1

 . 

While at times it felt like the Cour t had been sent back to school, the

historical i nformation and interpretations presented were alw ays inter-

esting and, on many occa sions, quite fascinating. It would have been all

too easy to wander down the many well-trod avenues, less er byways,

and faint trai ls of our history . . .

I have attempted to present, for the most part, an historica l chronol-

ogy, as opposed to d riing into any ana lytical abstract ionism, which is

best le to academics, not judges.

Canadian Aboriginal and treaty rights law is a relatively new eld of Can-

adian jurisprudence. It has developed mostly since the landmark Calder

decision of the Supreme Court. e period aer the adoption of the 

Canadian Constitution has been particu larly productive because section

 of t he Constitution Act, , dened Aborigi nal peoples broadly to

include the Métis and entrenched “existing” Aboriginal and treaty rights

 is paper is based pa rtly on research support prov ided by an SSHRC Bora Laskin

National Fellowship i n Human Rights Research a nd a Woodrow Wilson Fellow-

ship. e initial d ra of this paper was prepare d for a workshop, sponsored by

the Canadia n Department of Justice (Vancouver Oce), held in Vancouver –

November .

 Samson Indian Nation and Band v. Canada,  FC  at pa ra. , Teitelbaum J.

[Victor Bualo].

 Calder v. British Columbia (Attor ney-General), [] S.C.R. .

 Constitution Act , , being Schedule B to the Canada Ac t  (U.K.), , c. .

2  . 

even though the nature and extent of those r ights were unknown. Ma ny

excellent overviews have been written about the development of Native

law since these events. Most have been authored by law yers and legal

scholars and, understandably, they focus on the implications of the grow-

ing body of case law for Aboriginal rights in Canada. What is lacking are

studies t hat consider the implications of the fact that t his new body of

case law is (and continues to be) built on ethnohistorical evidence that

experts have presented to the courts. is is my concern here. I will con-

sider the l itigation process from the perspective of the issues and ques-

tions that ar ise concerning the use of t his line of evidence. ese are ()

the dierent ways scholars and t he courts approach and use history; ()

the implications that rights tests developed by the courts have for claims

research; and () the problems that are associated with using dierent

lines of evidence in court.

A. ACADEMIC AND COURT HISTORIOGRAPHIES

Australian legal scholar Alex Reilly has noted that the historiographies

generated by the scholarly communit y and the courts are f undamental-

ly di erent because they ser ve wholly d issimilar objectives. Academic

scholarship does not seek to provide na lity to historical interpretation.

Rather, it is now widely, if not universally, accepted that our perceptions

of the past are linked to the present because they are socially constructed

and connected to current concerns. An analysis of the ethnohistorical lit-

erature regarding North American Aboriginal peoples makes this clear.

Succeeding generations of scholars deployed dierent t heoretical and

methodological frameworks that have continually altered our under-

standings of Aboriginal history. In this way, academic scholarship has

helped to keep the Aboriginal past a live and connected to the present.

Reilly points out t hat courts use history to bury t he past rather than

to continually revisit it. ey use historical “evidence” to resolve disputes

 One of the be st of these is the Annual Métis Law Su mmary, written by Jean Teillet

of Pape, Salter and Teillet, Vancouver. It is avai lable online: www.pstlaw.ca/

resources/MLS -.pdf. is work is much more comprehensive than t he title

suggests.

 Alexander Reil ly, “e Ghost of Truganini: Use of Historica l Evidence as Proof of

Native Title” ()  Fed. L. Rev. .