AuthorCave, Joanne


In February 2018, Prime Minister Justin Trudeau announced the launch of a significant new policy initiative-the creation of a Recognition and Implementation of Rights Framework to enshrine Indigenous rights recognition in federal legislation and fulfill the promise of section 35 of the Constitution Act, 1982. (1) It was later announced that the rights recognition framework would not be tabled in the House of Commons before the 2019 federal election. (2) After decades of Indigenous advocacy, the framework represents a broader shift in federal policy and law reform on Indigenous rights in Canada. Due to the significance of the proposed framework, legal scholars and policymakers should carefully consider its implications and potential consequences as this process moves forward.

The proposed framework raised significant concerns in the consultation process. The reaction from Indigenous communities and organizations was swift and often scathing, with concerns about both the process and intended outcomes. Assembly of First Nations Chief Perry Bellegarde called for a "total reset [of the process] with First Nations leading the way," (3) and Indigenous scholars Joyce Green and Gina Starblanket emphasized in a recent op-ed that the proposed framework is "not emancipatory" and "functions like a cage" for Indigenous peoples. (4) This article explores these criticisms further, arguing that transitioning to a process of statutory rights recognition may serve to further constrain Indigenous communities and their ability to fully realize the dual promises of recognition and reconciliation under section 35. (5)

Section 35 recognizes and affirms the existing Aboriginal and treaty rights of Aboriginal peoples in Canada, including Indian, Inuit, and Metis peoples. (6) The proposed framework intends to advance this commitment through the following objectives: (1) removing structural barriers created by the Government of Canada with the "intent to deny rights"; (2) replacing the Comprehensive Land Claims and Inherent Right Policies with a distinctions-based Policy on the Recognition and Implementation of Indigenous Rights; (3) establishing new dispute mechanisms for Indigenous communities to access remedies for rights breaches; and (4) aligning with the provisions of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). (7) The proposed framework would have a broad-reaching impact on current and future Indigenous rights including self-governance, treaty rights, and Aboriginal title claims. This article focuses on how the proposed rights recognition framework could implicate Indigenous rights and the use of the Van der Peet and Lax Kw'alaams tests under section 35 of the Constitution Act, 1982. (8) I use the term "Indigenous rights" to remain consistent with the language of UNDRIP while recognizing that section 35 and the existing jurisprudence refer to Aboriginal rights and title.

The Government of Canada has emphasized that the framework would not serve to define and limit rights, create fourth order municipal-style governments, or alter existing treaties or agreements between Indigenous communities and the Crown. (9) The framework is intended to reconstitute how Indigenous rights claims are resolved at the legislative, executive, and judicial levels and provide an alternative to lengthy, expensive litigation. In explaining the rationale for the framework, former Minister of Justice Jody Wilson-Raybould emphasized that "the promise of section 35 is not one that lends itself to fulfillment through the courts or through protracted conflict... reconciliation and adversarialism do not align." (10) The supporting legislation for the framework was expected to be tabled before the House of Commons by the end of 2018, but this timeline has since been extended due to challenges in the consultation process. (11)

Statutory rights recognition may constrain, rather than expand, the scope of Indigenous rights claims in Canada by: (1) limiting the ability for Indigenous rights jurisprudence to evolve over time; (2) applying principles of statutory, rather than constitutional, interpretation; (3) leaving the process vulnerable to political interference; (4) lacking enforcement power as a non-binding dispute resolution body; and (5) situating rights recognition within the existing colonial political/constitutional framework without recognizing the sui generis nature of Indigenous rights. The extended timeline for this process, and the constraints outlined above, invite pause and reflection before the framework legislation and policies are finalized. This article examines the limitations of the current legal and statutory approach and discusses the potential implications of transitioning from proof of rights to rights recognition. I focus primarily on the issue of proof of rights in this article, rather than exploring broader implications for rights infringement, extinguishment, and justification.

As an alternative to judicial and statutory rights recognition, I advocate for a different approach that prioritizes self-governance, self-determination and juridicial pluralism and recognizes the generative, sui generis structure of Indigenous rights. Brian Slattery defines generative rights as "rights that, although rooted in the past, have the capacity to renew themselves as organic entities that grow and change." (12) I situate Slattery's concept of generative rights within the frameworks of two other leading Indigenous scholars: John Borrows' concepts of Indigenous constitutionalism and juridicial pluralism and James (Sakej) Youngblood Henderson's work on the role of First Nations jurisprudence. (13) These approaches have significant transformative potential to address the shortcomings of both statutory and judicial rights recognition and achieve the goals of recognition and reconciliation under section 35.


The structure and recognition of Indigenous rights, particularly as they relate to invoking the duty to consult, are at the centre of many debates currently unfolding in both legislatures and courtrooms across Canada. The recent Tsleil-Waututh Nation v Canada (Attorney General) decision is one such example of the Crown's challenges in assessing the strength of established or asserted Aboriginal rights and acting upon its associated duty to consult obligations. (14) Similarly, in Mikisew Cree First Nation v Canada (Governor General in Council), the Supreme Court of Canada explored how Indigenous rights and interests should be accounted for in the legislative development process, recognizing the scope and boundaries of the honour of the Crown and duty to consult as legal doctrines. (15) In creating "binding principles of respect and recognition for Indigenous rights," (16) the proposed framework could significantly reshape many of the legal doctrines that flow from proven or asserted Indigenous rights claims, including the role of the honour of the Crown, the duty to consult, and the Sparrow test for infringement and justification. (17)

The current approach for claimants to prove the existence of an Indigenous right is complex and applied narrowly. Van der Peet indicated that an asserted right must be "an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right" to be effectively established in law. (18) To successfully establish an Aboriginal right under this test, the claimed right must have existed prior to European contact and the scope of the right is assessed as a specific rather than a general right based on the historical context. (19) In 2011, the Supreme Court of Canada expanded upon the Van der Peet test in Lax Kw'alaams Indian Band v Canada (Attorney General) to include a more explicit assessment of whether there is a reasonable degree of continuity between the claimed modern right and the pre-contact practice and a balancing of economic and regional fairness considerations if an Aboriginal right to trade commercially has been established.b. (20) Justice Binnie noted that courts should take a "generous though realistic" approach to matching pre-contact practices to claimed modern rights, provided that the essential elements of the practice are preserved. (21) In this article, I refer to the Van der Peet and Lax Kw'alaams tests together as the current common law approach to considering Aboriginal rights claims.

The Van der Peet and Lax Kw'alaams tests pose significant evidentiary challenges by requiring Indigenous claimants to prove cultural and pre-historical facts (often using anthropological evidence), identify the date of contact, and introduce sources of evidence that align with the conventional rules for admissibility. (22) The Supreme Court noted in Van der Peet that courts should not undervalue evidence adduced by Indigenous claimants because it does not conform precisely with common law evidentiary standards, (23) but adducing evidence of a sufficient quality and quantity still remains a significant barrier to moving rights claims forward.

The current common law approach to proving or asserting Indigenous rights claims has been described as "rights reductionism"-increasingly narrow, compartmentalized and acontextual. (24) The Van der Peet test has been described as "no longer viable" for its emphasis on freezing rights in time and applying Western frameworks to assess whether Indigenous rights claims are sufficiently meaningful, distinctive, or integral. (25) Justice L'Heureux-Dube's dissent in Van der Peet emphasized that it is inappropriate to give the common law equal weighting as Indigenous...

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