Letting go of culture: a comment on R. v. Sappier; R. v. Gray.

• Author: Charlton, Guy C.
• Position: Canada

This Comment argues that the recent Supreme Court of Canada decision R. v. Sappier has significantly rearticulated the "integral to a distinctive culture" approach previously used by the Court to determine the existence of aboriginal rights under s. 35.The new approach weakens the emphasis on inherently subjective and culturally biased notions of aboriginal culture but continues to include cultural elements. However, it is more consistent with common law notions of aboriginal title in that it presumes that subsistence activities are protected.

Dans ce commentaire l'argument est fait que la decision recente de la Cour suprEme du Canada dans l'affaire R. c. Sappier relormule sensiblement la these de > que la Cour utilisait jusque-la pour determiner l'existence de droits autochtones en vertu de l'art. 35. Le nouveau critere affaiblit le poids accorde aux notions subjectives et stereotypees inherentes de la culture autochtone, mais preserve des elements culturels. Cela est toutefois plus en harmonie avec les notions de titre autochtone en common law, car le nouveau critere repose sur la presomption de protection des activites de survie.

Table of Contents I. INTRODUCTION II. R. V. SAPPIER; R. v. GRAY A. Background B. The Majority Opinion of Justice Bastarache in R. v. Sappier; R. v. Gray C. The Concurring Opinion of Justice Binnie III. ELIMINATING CULTURE AS A BASIS FOR DETERMINING ABORIGINAL RIGHTS IV. CULTURE AND ABORIGINAL RIGHTS V. CONCLUSION 1. INTRODUCTION

Canadian courts have been especially active in creating and imposing cultural constructs on Native American societies. This is neither unique nor surprising. The judicial process involves the description and systemization of historical facts and rules that are then used as the premises, logical bases and precedents in adjudicating a particular dispute before the court. (1) In aboriginal disputes, where a court must often ascertain what various imperial and colonial officials, frontiersmen, settlers and aboriginals were doing and thinking at a particular historical moment, based on contested documentary and oral evidence, the limitations of the adversarial process in creating historical narrative become manifest.

In Canadian aboriginal rights jurisprudence, the use of cultural constructs to establish historical narratives, which are then used to ascertain the content and scope of constitutionally protected aboriginal rights, has been particularly problematic. The "integral to a distinctive culture" approach, as developed by the Supreme Court of Canada in R. v. Van der Peet (2) and Delgamuukw v. British Columbia, (3) is difficult to apply and requires courts to evaluate the cultural meaning and significance of various historic practices. Moreover, it has the tendency to limit the recognition and protection of aboriginal rights to pre-colonial subsistence practices of the claimant tribe. (4) Barsh and Henderson, noting the requirement that a practice must be "central" to an aboriginal society to receive protection under section 35 of the Constitution Act, 1982 (5) have pointed out that "[t]he extent to which an idea, symbol or practice is central to the cultural identity of a particular society is inescapably subjective to that society," (6) and the idea that a judge can detangle the central from the incidental is a judicial fiction. "The notion of centrality in human society is ... as absurd as arguing that an ecosystem remains the same after the removal of a few 'incidental' species." (7)

This comment argues that the recent Supreme Court of Canada decision R. v. Sappier; R. v. Gray (8) in effect abandons the cultural approach set forth in Van der Peet to be used in evaluating the existence, content and scope of aboriginal rights. This move away from the particularist subjective cultural approach is more consistent with aboriginal rights as they have been historically understood in Canadian law and provides for a more principled and legitimate constitutional jurisprudence. At the same rime, the decision raises additional issues regarding how claimed present-day aboriginal rights are related to historic activities and practices.

2. R. v. SAPPIER; R. v. GRAY

   A. Background

   Since the establishment of Nova Scotia and New Brunswick, the various Aboriginal peoples who occupied Acadia--the Mi'kmaq, Maliseet and Passamaquoddy--have continuously insisted on the recognition of their aboriginal and treaty rights. These efforts did result in some political measures, including the establishment of reserves and preferential fishing licences for food. However, both the Crown and the courts have refused to recognize any unextinguished aboriginal rights or treaty rights. The aboriginal title arguments of the Mi'kmaq, Maliseet and Passamaquoddy have been based on the fact that neither Great Britain nor Canada signed any land cession treaties with these communities. Indeed, the British had entered into a series of peace and friendship treaties with the Mi'kmaq, Maliseet and Passamaquoddy, but these treaties involved no land cessions or any extinguishments of aboriginal title. (9) The various treaty rights asserted by the Mi'kmaq, Maliseet and Passamaquoddy were based on treaties they had signed with the British in 1725 / 26, 1752, 1760 / 61 and 1779. (10)

   Prior to the enactment of section 35 of the Constitution Act, 1982, aboriginal litigants asserting aboriginal and treaty rights were generally unsuccessful. The Supreme Court of Canada's 1985 decision Simon v. The Queen (11) provided the impetus for Aboriginal groups in the area to begin bringing forth aboriginal and treaty rights claims. Prior to Sappier, the high water mark of these efforts was the 1999 case R. v. Marshall (12), where the Supreme Court ruled that the Mi'kmaq had a treaty right to commercially harvest eels. However, in a subsequent decision, a claimed right to commercially harvest timber on Crown land based on aboriginal and treaty rights was rejected. (13)

   B. The Majority Opinion of Justice Bastarache in R. v. Sappier; R. v. Gray

   R. v. Sappier; R. v. Gray was a consolidated criminal case which involved aboriginal and treaty rights claims by the Mi'kmaq and Maliseet aboriginal defendants to cut tituber for personal use in New Brunswick Crown forests. Justice Bastarache, writing for the unanimous Court (Justice Binnie concurring), noted that the central issue on the appeal was "how to define the distinctive culture [of the aboriginal defendant tribes] and how to determine which pre-contact practices were integral" to their distinctive culture. (14) The Supreme Court held that the Mi'kmaq and Maliseet defendants held an unextinguished aboriginal right to harvest wood for domestic uses. (15)

   The Court's analysis tracked the reasoning set forth in Van der Peet as modified by subsequent case law. Under this approach, an activity is found to be an aboriginal right where it is "an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right." (16) The test initially requires that the claimed right be appropriately characterized. Justice Bastarache, however, observed that the defendants had instead proffered evidence of the importance of wood to their culture and the uses to which it was put, rather than providing evidence on the importance and meaning of the practice within which the wood was utilized. The emphasis on the importance and meaning of a practice, he noted, as opposed to the importance of the resource, is crucial to the characterization of an aboriginal right. (17) Without cultural practice as a defining characteristic of an aboriginal right, he reasoned, an asserted aboriginal right to a particular resource would not sufficiently differentiate an aboriginal right from a common law right. (18)

   After characterizing the claimed aboriginal right as a "right to harvest wood for domestic uses as a member of an aboriginal community" (19), the Court then applied the "integral to a distinctive culture test" (20). The Court first confronted the issue of whether resource use for subsistence, without the more elaborate showing of how the use was given meaning within the claimants' culture--in order to establish that the practice was a central element of that culture--could be characterized as an aboriginal right. The Crown, relying on Van der Peet, argued that "[t]he court cannot look at those aspects of the aboriginal society that are true of every human society" (21) and that the use of wood to survive, while integral to the society, was not sufficiently "distinct." The Court rejected this argument, and expanding upon its approach in earlier cases (22) stated that "the scope of s. 35 should extend to protect the means by which an aboriginal society traditionally sustained itself...." (23)

   The Court then addressed the question of what is meant by the term "distinctive culture." It pointed out that the concept was meant to delimit the extent of the special constitutional protection granted to aboriginal practices. However, it noted that "©ulture, let alone 'distinctive culture,' has proven to be a difficult concept to grasp...." (24) This difficulty is compounded because aboriginal claimants often have no parallel concept of the English language term "culture" in their aboriginal language. "Ultimately," Justice Bastarache wrote, "the concept of culture is itself inherently cultural." (25) He held that the Court should focus on the nature of the aboriginal communities, not their "practices" per se, prior to contact. In this context "culture" "is really an inquiry into the pre-contact way of life of a particular aboriginal community, including their means of survival, their socialization methods, their legal systems, and, potentially, their trading habits." (26) The notion of "distinctive," as it relates to the concept of culture in aboriginal rights jurisprudence, is meant to incorporate the idea that aboriginal rights are limited to...