Vander Peet turns 20: revisiting the rights equation and building a new test for aboriginal rights.

• Author: Tokawa, Kenji
• Position: Canada

1. INTRODUCTION

   Twenty years after the Supreme Court of Canada (SCC) authored the test for Aboriginal rights in R v Van der Peet, the test is no longer viable. (1) Although it has gone through different iterations in the jurisprudence, the test still reserves that only "practices" that were "integral to the distinctive culture" of the claimant group can be characterized as Aboriginal rights. (2) The stream of jurisprudence and shifting public opinion has steadily eroded the foundations of the test over the last two decades. Criticisms of the test are diverse and persistent, and range from the dissenting judgments of McLachlin and L'Heureux Dube JJ to critiques by Indigenous legal scholars and Aboriginal law experts. These criticisms point to the ruinous effects of the test, the freezing of rights, and the reliance on outsider constructions of what is meaningful, distinctive, and integral to any given Indigenous group, among other things. (3) Rather than repeating these criticisms, this paper simply means to excavate the basis of the test to see why it was so easily eroded, and to outline an equation for establishing a stronger, more principled replacement test to build and support Canada's relationships with Indigenous nations going forward.

   The way this paper constructs a new test is as follows. First, the paper examines how Lamer CJC, writing for the majority crafted the original test and suggests that the Court missed the purpose of rights: to provide protection to interests in need of protection. To show this, the paper first explores the factors at the Courts disposal for creating the test: 1) the definition of constitutional rights in the non-Aboriginal rights context; and 2) the reason the Aboriginal rights context creates a sui generis situation. The second factor also requires an examination of the role of reconciliation. Throughout, the paper juxtaposes the resulting rights equation against the majority's reasoning in Van der Peet to expose why the test was so easily eroded. Finally, the paper adds these factors to arrive at a principled and coherent test for determining the existence of Aboriginal rights. The paper concludes by outlining the diminished role of stare decisis for Van der Peet.

   The application of the proposed test avoids the problems that Van der Peet has been criticized for: the test's inapplicability to Metis rights, the freezing of rights, the stereotyping of Indigenous people, and the impracticably of the highly contested term "culture" central to determinations in the current test, leading to the ensuing battle among anthropologists. (4) The proposed test does not preclude practices that arose in resistance to European encroachment, but rather embraces them as an aspect of reconciliation. The test does not confine its concern to separating out discrete parts of an entire way of life. (5) It avoids basing itself on a misapprehension of R v Sparrow, in which the phrase crucial to the Van der Peet test--"integral to distinctive culture"--originates. (6) Rather, this paper will demonstrate that the proposed test is securely rooted in well-settled legal principles. In some ways, the proposed test more closely resembles the test for Aboriginal title, which does not hinge on establishing that the interest in land is contingent on culture. (7) As for rights that have already been established under the old test, the new test would preserve the integrity of those rights since their existence would inevitably contain the proposed test's prerequisite elements: an interest, a threat, and the sui generis basis for protection by virtue of the dispute from which the original litigation arose. The new test is simply more inclusive than the old test.

5. RIGHTS (8)

   This section aims to provide a framework for understanding the SCC's discourse on the nature of constitutionally entrenched rights outside of the Aboriginal rights context. (9) To do so, this section attempts to establish three distinct but interrelated features of rights. First, rights are the protections of interests. Rights are not the interests themselves. Second, the protection afforded by rights cannot exist without the correlative existence of threats to whatever interests the right protects. In other words, rights require an interest + the existence of a threat, since rights fulfil no purpose in the absence of the risk of encroachment on the interests they are said to protect. Third, protections cannot exist without a principled basis for establishing protections. If they could, all interests upon which an external entity could infringe would also be rights. These features clarify that rights are not stand-alone entitlements; rather, they are contingent on the existence of these three elements.

   1. THE THREE CHARACTERISTICS OF RIGHTS

      1. The Protection Of Interests

         As the SCC first stated in R v Big M Drug Mart, "[t]he meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in light of the interests it was meant to protect." (10) Rights are not merely the interests associated with them. For example, the SCC noted that "it is clear that one of the purposes of the right to counsel under s. 10(b) is to safeguard the liberty interests of detainees". (11) Similarly, the right to be free from unreasonable search and seizure protects privacy interests. (12) Further, the singular right of section 7 does not translate into a singular interest in life, liberty, and security of the person; it is the protection of the life interest, liberty interest, or security of the person interest. (13) Rights are separate and distinct from those interests and can be identified as the protections of those interests.

      2. The State's Threat On The Interests

         There is no need for protection, and thus no right, if nothing exists that could threaten the interest. Since a right is the sum of the interest and its protection, defining a right necessitates determining what the interest is being protected from. Early American political and judicial thought identified the state and its power as the threat against which rights protect. (14) Canadian lawmakers have also recognized that rights protect in this way. Subsection 52(1) of the Charter constrains legislators in their exercise of power by declaring that any law inconsistent with the rights contained in the Charter is invalid. (15) This section recognizes the threat as the ability of the legislature to regulate individual's lives in a way that could infringe on the interests protected by the Charter. To be clear, the rights in the Charter and the text in subsection 52(1) nod to infringement of protected interests in a way that is anticipatory rather than accusatory, in that they recognize merely the possibility that the state could exercise its power in an infringing way. Subsection 52(1) does not name a specific infringement of a specific individual's rights and impugn it directly. Similarly, section 7 acknowledges the state's ability to deprive people of life, liberty, and security of their person, and anticipates the state's exercise of such power, but does not point to an actual infringement of a person's interest in liberty, such as the imprisonment of a specific individual. (16) Rights protect interests against the state by placing a duty on the state to limit its powers, but not necessarily powers that are actually exercised by the state--only powers that the right acknowledges and anticipates could be exercised by the state in a way that would deprive rights-holders of their protected interests. (17)

      3. The Basis For Protection (18)

         While the existence of a right needs an interest and the anticipation of a threat against which to protect that interest, it also needs a reason for affording protection to that particular interest. Otherwise, every interest over which the state can exercise power would be considered a right. These...