The constitution's peoples: approaching community in the context of section 35 of the Constitution Act, 1982.

• Author: Olthuis, Brent

Modern negotiations between the Crown (or private parties) and Canada's Aboriginal peoples are largely based on the legal principles articulated in major court decisions. Yet those decisions have not yet confronted a fundamental question: how, in the first instance, do we determine which groups can lay claim to the Aboriginal and treaty rights "recognized and affirmed" by section 35 of the Constitution Act. 1982?

The author argues that this question ought to form the theoretical cornerstone of the doctrine of Aboriginal and treaty rights. It is also of critical significance to the continuing process of reconciliation between the Aboriginal and non-Aboriginal elements of Canadian society. The interlocutors in this process must be identifiable.

The community recognition needed to give effect to section 35's inherently group-centred approach cannot be purely subjective or purely objective in nature. Neither a process of unilateral declaration nor one of pure observation can accurately identify the communities at issue under section 35. Rather, the inquiry requires an exercise of interpretation. To this end, the author proposes guidelines to focus and assist the interpretive process.

This analysis ultimately entails a reconsideration of some of the prevailing orthodoxies in Aboriginal law jurisprudence, including the "test" for determining the existence of Aboriginal rights (from R. v. Van der Peet) and the notion that an individual member of a modern, rights-holding, Aboriginal community must prove an ancestral or genealogical link to a member of the group at some earlier time (from R. v. Powley).

Les negociations contemporaines entre la Couronne (ou des parties privees) et les peuples autochtones canadiens reposent largement sur les principes juridiques articules dans les principales decisions jurisprudentielles en la matiere. Toutefois, ces decisions n'ont pas encore aborde une question fondamentale: comment, a la base, est-il possible de determiner les groupes en mesure de revendiquer des droits autochtones et des droits issus de traites > par l'article 35 de la Loi constitutionnelle de 1982?

L'auteur affirme que cette question doit constituer la pierre d'assise theorique de la doctrine des droits autochtones et des droits issus de traites. Elle est egalement d'une grande importance a la poursuite du processus de reconciliation entre les composantes autochtone et nonautochtone de la societe canadienne. Les interlocuteurs de ce processus doivent pouvoir etre identifies.

La reconnaissance de la communaute, necessaire pour que l'approche axee sur le groupe de l'article 35 soit effective, ne peut etre de nature strictement subjective ou objective. Ni un processus de declaration unilaterale ni une simple observation ne peuvent precisement identifier les communautes visees par l'article 35. Au contraire, cet examen necessite un exercice d'interpretation, precise et facilite par les lignes directrices que propose l'auteur.

Cette analyse entraine ultimement une reconsideration de certaines orthodoxies dominantes de la jurisprudence du droit autochtone. Celles-ci incluent le > permettant de determiner l'existence d'un droit autochtone (issu de R. c. Van der Peet) et la notion selon laquelle un individu, membre d'une communaute autochtone detenant actuellement des droits, doit prouver un lien ancestral ou genealogique a un membre dudit groupe dans le passe (issu de R. c. Powley).

Introduction I. The Constitution's Peoples: The Matter of Inquiry A. Mediation of Conflicting Claims B. Five Attendant Observations 1. The Error of Focusing on Particular Customs and the Effect of "Outside" Influences 2. The Fallacy of the Essential "Aboriginal" Quality 3. Contact Is an Inappropriate Defining Date 4. Metis Non-exceptionality 5. Aboriginal Agency C. The Matter of Inquiry: A Summary II. Possible Approaches to Community A. Statutory or Executive Recognition 1. Constitutional Invalidity 2. Accounting for the Historical Effects of the Indian Act a. Oregon Jack Creek b. Sawridge Band B. Unilateral Declaration by the Aboriginal Community 1. The Effect of Questionable Claims 2. Who May Make the Declaration? C. An Objective Test 1. Who Is to Choose the Criteria? 2. How Are the Criteria to Be Applied? III. Another View A. The Intensity and Quality of the Group's Social Character B. The Importance of a Distinct Normative Process C. Membership in Multiple Rights-holding Groups D. The Situs of the Right E. A Tailored Focus F. The Historical Reference Point G. Evidence of a Community H. Continuity Between the Historical and Modern Groups I. The Potential Revival of a "Dormant" Group IV. A Note on the Decision Maker Conclusion: Membership and Beyond Introduction

Since coming into force, section 35 of the Constitution Act, 1982 has given rise to a wealth of commentary. The courts have identified its aims. They have articulated and applied substantive tests for the identification of its protected rights, and for assessing interference with the same. Explanations abound that these rights are communal, and not individual, in nature. Notably, though, a considered discussion of the particular communities captured by the provision is missing. Exactly which groups' rights are recognized and affirmed by section 35?

A comprehensive theory of Aboriginal rights must, by necessity, tackle this problem. Beyond theory, the issue is also of great practical significance. With each decision of the Supreme Court of Canada, new claims are advanced, sometimes by non-traditional or even marginal groups. The governmental duty of consultation, as well as other efforts at reconciliation like the treaty initiative presently underway in British Columbia, (1) is dependent on the ability to identify the proper interlocutors.

To date, the clearest articulation of the judiciary's approach to the issue is found in R. v. Powley, which arguably concerned only Metis communities. (2) In the context of a claim to the protection of section 35 made by individuals in Sault Ste. Marie, the Supreme Court of Canada discussed the general nature of a rights-holding Metis group. It went on to identify "three broad factors as indicia of [individual] Metis identity": (1) self-identification, (2) ancestral connection, and (3) acceptance by the modern community. (3) In theory, those indicia serve to verify the validity of a particular individual's claim to the benefit of the communal rights.

In my view, it is possible--and preferable--to seek a common approach to the issue in respect of all collectivities that hold rights under section 35. There are aspects of the Powley approach that I find problematic, and I would not endorse it as the basis for a "pan-Aboriginal" test. I do, however, agree with the Court's reasoning that issues of "groupness" and issues of membership are inseparable. Indeed, there is an essential interdependence between the two: the criteria governing how individuals adhere to a group bespeak a particular conception of the nature of that group; likewise, the acknowledgement of a community necessarily comprises an understanding of the characteristics shared by its members. Discussion must begin with the question: what is it that we are looking for?

1. The Constitution's Peoples: The Matter of Inquiry

   By the express terms of section 35(2), the Aboriginal peoples of Canada to whom the constitutional promise is made "include[] the Indian, Inuit and Metis peoples of Canada." (4) Notoriously, there is one understanding of what "Indian" means in section 91(24) of the Constitution Act, 1867 (5) (where it includes the Inuit (6) and may also include the Metis (7)), another in the main legislative instrument of federal Indian policy enacted pursuant to that power, (8) another in the Natural Resource Transfer Agreements (NRTAs) incorporated in the Constitution Act, 1930, (9) and yet another in the Constitution Act, 1982. (10) Moreover, there is no set understanding as to what identifies the Inuit as a people for the purposes of Canadian law. (11) In these circumstances, from a definitional standpoint, it is difficult to argue that the Metis implicate discrete issues that have little purchase vis-a-vis the other Aboriginal peoples. (12)

   Without a doubt, all groups recognized under section 35 must be Aboriginal. But what does this mean in the context of the Canadian constitution? What is it that compels recognition of these collectivities as holders of particular rights, and distinguishes them from other elements of the Canadian "multicultural mosaic"?

   In my view, considering the rights section 35 recognizes and affirms in their historical context, "Aboriginal" must be understood to mean of or related to a social order that pre-existed and survived the arrival of the dominant European order. The apparent triteness of this statement is misleading. Indeed, it cannot be understood without reference to some fundamental propositions concerning the origins and functioning of the doctrine of Aboriginal rights.

   1. Mediation of Conflicting Claims

      It is now well accepted that the North America encountered by early explorers and colonists was a continent inhabited by Aboriginal societies--social systems with normative (i.e., customary, legal) orders governing the relations between individuals, family groupings, and other social units. These social systems also governed relations between the people and the land, animals, and their natural environment. (13) To this milieu, the Europeans brought their own normative conceptions. (14) Hypothetically, had the native and newcomer normative orders mirrored each other exactly--or had either party entirely abandoned its own norms in favour of the other's--there would have been no need for a doctrine of Aboriginal rights. The newcomers would have had immediate knowledge of, for instance, the relationship between the Aboriginal peoples and their lands. Inter-communal disputes, like intra-communal ones, could have been solved on the basis of a...