Domestic Laws versus Aboriginal Visions:
An Analysis of the Delgamuukw Decision

Candice Metallic & Patricia Monture-Angus



1. The concept of "rights" as we know it today is not one that is (or was) prevalent in traditional First Nations’ cultures. The concept most analogous to rights in the natural laws of First Nations is "relationships", whether such relationships are with one another, the land, plants, animals, sun, moon or sky (Monture-Angus 1995: 216-248, 1999: 21-39). Fundamental to the harmonious and peaceful existence of relationships is respect. Simple as this may sound, the laws and customs of First Peoples are embedded in oral teachings which include complex stories, legends, ceremonies and dance. These teachings are shared in the most scared of ways as well as in common, every day kinds of ways. It is every individual’s responsibility to participate in these traditions and practices which teach the right way to be. Commitments to self-reflection and living up to your gifts are equally essential to First Nation’s well-being either individually or collectively.

2. Today, one of the most difficult problems that First Nations face in striving to have their "rights" or "relationships" respected and recognized in a contemporary manner is, in part, the difficulty in reconciling traditional concepts of "rights" or "relationships" with modern laws rooted in the western colonial legal system. This system continues to operate so that it is ideologically and conceptually at odds with traditional First Nations laws. This is not a necessary condition. As the specifics of First Nations legal traditions vary from nation to nation and from community to community, law making and the revival of traditions is best left with those communities and in those communities. (It would be impossible to truly teach First Nations law in this printed format and when community connection is not possible.) This paper does not attempt to explain these systems of First Nations laws but, rather, we concentrate on the difficult task of justly reconciling two vastly different legal systems.

3. It is absolute, at least from the position of First Nations, that colonialism is tenacious and wrong. Because of the tenacious characteristic of colonialism, it is essential that the analysis of Supreme Court of Canada decisions on Aboriginal rights be examined from a First Nation’s standpoint. To do otherwise offers no guarantee that colonial impacts are exposed and essentially prevents the conclusion of these kinds of oppressive relations. Moreover, if ending the era of conquest by law is important to Canada, then this kind of analysis must be encouraged and respected. [The turmoil that exists in the wake of the Supreme Court of Canada’s decision in Corbiere v Canada, [1999] 3 C.N.L.R. 24 is just one indicator of the consequences of not providing opportunities for First Nations scholars to analyze the developing case law. See Young-Ing 1993 and Smith 1999 for issues related to indigenous research and publishing.]

4. In order to accomplish the goals identified, this paper will examine the landmark case of Delgamuukw v. B.C. [1998 1 C.N.L.R. 21] and other recent Canadian high court decisions from an "Aboriginal standpoint" (that is Mi’qmaq and Mohawk). This discussion illustrates the difficulty for First Nations adjudicating claims in the Canadian judicial system given the continuing institutional, structural and subjective limitations of the Canadian legal system. In our view, there has been insufficient attention paid to this form of legal analysis. (see Bell and Asch 1997; Borrows 1997; Mandell 1987) We also wish that it was possible for us to present a more encouraging set of conclusions. However, the dynamics of ongoing legal colonialism prevent this possibility. The acknowledgment that legal colonization is ongoing, as evidenced in part by the presence of the Indian Act (and recent unilateral actions to amend it), is one of our fundamental premises. We also acknowledge that the impact of this form of colonization is trans-generational and has multiplied in consequence over time.

5. Our purpose in writing this paper does not diminish the need to examine a complementary question or purpose which is also very often over looked in discussions or pronouncements about the meaning of Aboriginal rights: What, in fact and in law, is "the source and content of the legal rights of British settlers?" (Walters 1993: 358) In our view, it is primarily the failure of the courts but also many scholars to sufficiently consider this question. The half-sided analysis of the relationship contributes significantly to the way in which courts have gone astray in defining Aboriginal rights.

6. It is clear that Aboriginal rights as both a linguistic and legal structure is a 20th century phenomenon, primarily arising alongside the post-World War II concern with human rights. (Royal Commission 1996: 308) Granted, the history between Aboriginal Peoples and western based legal systems is a long one but it fundamentally rests on the premise that European nations and people were superior to Indigenous ones. (Monture-Angus 1999a: 21-39) This early legal history is marked by, or perhaps tainted by, these colonial misconceptions. Historically, law was a tool of colonial oppression used in multiple attempts to acculturate and assimilate First Nations and their citizens, at the same time, it attempted to delegitimize and destroy their laws and traditions of First Nations. (Monture-Angus 1999b: 64-87; Backhouse 1998) As Kent McNeil has indicated about the early legal relationship:

The Eurocentric vision of two founding nations, and the constitutional dogma of exhaustive division of legislative powers in our federal system, simply left no place for Aboriginal governments in the minds of most non-Aboriginal politicians and jurists. (McNeil: 96)

It is quite clear from an Aboriginal standpoint that the existing Canadian legal framework offers only limited potential.

7. The task that First Nations view as fundamental is to step beyond these colonial, Eurocentric and patriarchal visions of the European presence in these territories now known as Canada. Myths such as the two founding nations must be released. Legal constructs that exclude First Nations participation must be reconsidered to determine if such a rule can logically and fairly be extended to First Nation’s government who were invisible to the drafters of the constitution. One significant example is the rule that present constitutional provisions as found in sections 91 and 92 of the Constitution Act, 1867 (formerly known as the British North America Act), require exhaustive division of powers between federal and provincial governments. Until Canada releases their grasp on a contemporary colonial mentality and voluntarily commits to these kinds of reconsiderations then it is our view that no just reconciliation of First Nations’ claims can occur. This paper documents a number of reasons for our conclusions.

8. The oppression of First Nations peoples in Canada is a study of an interdisciplinary nature which focuses on politics and law. The law, in its statutory form, was used as an effective and convenient tool to implement a myriad of government policies and rules aimed at assimilation and or disenfranchisement of First Nations while displacing them from their traditional homelands. To give context to the type of oppression that First Nations have endured, one need only undertake a historical review of the Indian Act which represents the codification of colonial subordination of First Nations and self-serving colonial policy. It is replete with provisions that suppressed First Nations economies, social organization (including gender relationships) and political structures (Royal Commission Vol. 1: 281-307). For example, in the 1800s, government officials viewed First Nations spiritual practices (which tie the people to the land) as a threat to effective implementation of the government’s assimilation policy. Therefore, the government unilaterally amended the Indian Act and made it unlawful for Indians to engage in traditional ceremonies such as the Potlatch or Sundance:

Every Indian or other person who engages in, or assists in celebrating or encourages either directly or indirectly another to celebrate, any Indian festival, dance or other ceremony of which the giving away or paying or giving back of money, goods or articles of any sort forms a part, or is a feature, whether such gift of money, goods or articles takes place before, at, or after the celebration of the same... is guilty of an indictable offence and is liable to imprisonment for a term not exceeding six months and not less than two months... [An Act Further to Amend "The Indian Act", S.C. 1895, c.25 s.6.]

9. Despite the fact that this section was repealed some time ago (1951), the memory of the prohibition is still alive in the minds and hearts of many communities, kinship groups and individuals. Furthermore Constance Backhouse notes that surviving records suggest that no whites were ever prosecuted under the Aboriginal dance provisions. (1999: 92) The impact of the prohibition did not instantly dissipate with its repeal. A number of Indian people were jailed for carrying on these "religious" activities and we have never heard mention of any form of compensation for acts which although permissible under federal legislation clearly violated religious freedoms and caused significant harms to First Nations both individually and collectively.

10. Furthermore, to prevent First Nations from advancing claims, in 1927 the government enacted a provision in the Indian Act which prohibited anyone from "receiving money for the prosecution of a claim". [R.S.C. 1927, c. 98, at 53. Margin note to section 141]. Section 141, of the 1927 Act read:

Every person who, without the consent of the Superintendent General expressed in writing, receives, obtains, solicits or requests from an Indian any payment or contribution or promise of any payment or contribution for the purpose of raising a fund or providing money for the prosecution of any claim which the tribe or band of Indians to which such Indian belongs, or of which he is a member, has or is represented to have for the recovery of any claim or money for the benefit of the said tribe or band, shall be guilty of an offence and liable upon summary conviction for each such offence to a penalty not exceeding two hundred dollars and not less than fifty dollars or to imprisonment for any term not exceeding two months.

11. It is essential to note that while limiting the right of Indians to access legal representation and bring forward collective claims, this provision more directly targeted lawyers. An infraction of this section created an offence to which only lawyers (or those representing "Indians") could be charged. (see Purich 1986: 122-3) At the time the section was in force it is safe to suggest that lawyer could also be read as "white man". As a result, this legislative obstacle to the legal advance of First Nation’s claims was most effective in fully denying "Indians" access to justice.

12. In understanding the political and legal struggles of First Nations, it is essential to recognize the degree to which legal oppression has overtly and covertly been imposed upon the self-determining aspirations (and rights) of First Nations. Clearly the delay in bringing forward First Nation’s claims in the present century is not evidence of First Nations disinterest (which for some is then translated into the notion of non-white inferiority, a deeply rooted stereotype) but the legacy of colonial acts of legal violence for which First Nations are not blameworthy. This is an important reminder for the descendants of settlers as some believe First Nations ought to just "get over it" and move ahead with the times. For First Nations there is a positive and hopefully encouraging aspect in this short reflection on history. In a relatively short period of time, our people have overcome considerable obstacles which now allows or the possibility of taking our concerns to court.

13. An interesting bilateral consequence arising out of the impairment provided by section 141 of the 1927 Indian Act to the advancement of Aboriginal rights litigation is that the bringing forward of a number of legal actions neatly coincides with the time when First Nations have been able to access post-secondary education in significant numbers (including legal education). [S.C. 1876, c.18, s. 86(1).] There are now several hundred First Nations’ lawyers practicing law and a handful of us in academia writing about law. This coalesces with a number of other factors including the development of Aboriginal (and treaty) rights in domestic courts and creates a dynamic tension that has resulted in significant litigation being brought to the high courts in this country. Had significant development in Aboriginal rights litigation commenced much earlier than the 1970s, the participation of any First Nation’s citizen with legal training would not have been possible. The coalescing of these dynamic factors offers us encouragement, although we still worry that it is insufficient to cause transformative change. Although this is by no means a justification for the oppressive measures contained in the Indian Act, the analysis does demonstrate that there are a number of catalytic factors at play which will clearly lead to the development of a coherent theory of Aboriginal rights. This development should be led by First Nations with the assistance of our non-Aboriginal relations who have taken the time and carry the commitment to form a true understanding of who we are.

14. The analysis of the outcome of Aboriginal rights litigation has not often been explained in terms of colonial oppression and it is reasonable to conclude as Peter Russell notes:

as with other juridical triumphs in the highest courts of settler societies, it is a bitter-sweet kind of victory. These juridical wins come with a downside - a reminder of the subordinate place of native societies within the larger settler societies in which they are embedded, and of their dependence on the courts that pronounce upon their rights in that larger society. (Russell 1997: 247)

15. Again, it is also because of this characteristic of colonialism, dependence, that the analysis of Supreme Court of Canada decisions on Aboriginal rights must be examined from a First Nation’s standpoint. The multifaceted nature of the outcomes of First Nation’s legal struggles must be recognized as a struggle to end forced dependence. Litigation, in and of itself, does not have a singularly negative impact or result for First Nations. Colonial relations is this present era are not that linear or explicit. Although we remain cautious about encouraging First Nations to litigate given what we know and have experienced of the Canadian legal system, we understand that litigation is more of a possibility now than it was a mere two decades ago.

16. To fully understand the impacts of the Delgamuukw decision, a brief acknowledgment of the history of what is now known as Aboriginal and treaty rights litigation is essential. It is widely recognized that the Calder case in 1973 was a turning point in Aboriginal rights litigation in Canada. [(1973), 34 D.L.R. (3d) 145; 74 W.W.R. 1 (S.C.C.)] Peter Russell describes this decision as catalytic "in the struggle of Indigenous peoples to assert their rights to get out from under an imperial relationship with the larger societies in which they are embedded" (Russell 1997: 258). Among other things, this decision marked the point that Aboriginal people began to become involved in a substantive and proactive way, in litigation against the Canadian state. (There were other attempts before Calder to advance Aboriginal claims through the courts which met with frustration (See Sero v Gault (Ontario, 1921) and Logan v Styres (1959), 20 D.L.R. (2d) 416 (Ont. H.C.); Backhouse 2000: 103-131). Since then, litigation has become a clear strategy on which First Nations domiciled in Canada have been compelled to rely on in the last 30 years.

17. In one of the more promising moments in Aboriginal rights litigation, Justices Dickson and LaForest, indicated in the 1990 Sparrow decision that a new era of legal relationship with Aboriginal Peoples began with the entrenchment of section 35(1) of Part II of Canada’s constitution, which says that: ‘The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.’ Relying on the wisdom of Noel Lyon, the Justices note:

the context of 1982 is surely enough to tell us that this is not just a codification of the case law on aboriginal rights that had accumulated by 1982. Section 35 calls for a just settlement for aboriginal peoples. It renounces the old rules of the game under which the Crown established Courts of law and denied those Courts the authority to question sovereign claims made by the Crown. [R. v Sparrow, [1990] 3. C.N.L.R. 160 at 178, 70 D.L.R. (4th) 385.]

At a minimum, this judicial pronouncement must be seen to establish new boundaries which should be considered the frontier of a new (legal) relationship between Canada and First Peoples.

18. The court provided further detail on the shape of the new legal frontier the 1982 amendments to Canada’s constitution established. The Supreme Court of Canada was clear in the Sparrow decision that Aboriginal and treaty rights must be "construed in a purposive way" [R. v Sparrow, 179] utilizing a generous and liberal interpretation. Of equal emphasis, the court found, as follows:

When the Court of Appeal below was confronted with the submission that s. 35 has no effect on aboriginal or treaty rights and that it is merely a preamble to parts of the Constitution Act, 1982, which deal with aboriginal rights, it said the following at p. 322 [p.168 C.N.L.R.]:

This submission gives no meaning to s. 35. If accepted, it would result in denying its clear statement that existing rights are hereby recognized and affirmed, and would turn that into a mere promise to recognize and affirm those rights sometime in the future... To so construe s. 35(1) would be to ignore its language and the principle that the Constitution should be interpreted in a liberal and remedial way. We cannot accept that principle applies less strongly to aboriginal rights that to the rights guaranteed by the Charter particularly having regard to the history and to the approach to interpreting treaties and statutes relating to Indians... [R. v Sparrow, 178]

Perhaps these assurances deceived us or we were overly optimistic, but we expected that such instructions would lead to meaningful judicial outcomes. This unfortunately has most often not been the case and our disappointment with the Delgamuukw decision continues to mount.

19. If Sparrow truly establishes new boundaries, there is a need to carefully guard the boundaries of this new frontier to ensure we are not sliding back to old colonial law making practices and processes. This need is prefaced on the recognition that colonialism is tenacious. The embedded characteristics of colonial relations ensures it the power to self-perpetuate. Given colonialism’s power to self-perpetuate, we understand that legal strategies which aim to achieve just settlement must be proactive. Therefore, the degree to which subsequent Supreme Court of Canada decisions respect the creation of this new frontier is an important consideration. It is the consideration at the centre of this examination of the high court’s decision in Delgamuukw.

20. Since the first pronouncement Supreme Court in 1990 on the meaning of section 35(1), it is clear that there is no coherent and agreed upon conceptual framework for Aboriginal rights on which judicial decision making proceeds. This void is compounded by another challenge that is discovered when one tries to reconcile the case law since the Sparrow decision. One scholar describes the problem in this way:

... the Supreme Court of Canada’s first decision on the significance of constitutionally recognizing "existing" Aboriginal rights, it committed itself to a generous, liberal interpretation" which does not legitimate all of the legislative restrictions of aboriginal rights prior to their constitutional recognition in 1982. But then in 1996, the Court, performing like the legendary trickster, moved in the opposite direction with a clutch of decisions narrowing Aboriginal and treaty rights. In the so-called Van der Peet trilogy of case, the Court adopted an understanding of the Aboriginal rights recognized in the Canadian Constitution as reducible to the bundle of activities that could be shown to be integral to the distinctive culture of an Aboriginal people at the time of first contact with Europeans...

Following this long climb up and sudden plunge down, along comes Delgamuukw at the end of 1997, and the Supreme Court’s Aboriginal rights roller coaster is on the rise again. Unlike the Van der Peet trilogy where the rights being claimed were to carry on certain activities (commercial fishing and high stakes gambling), in Delgamuukw the Gitksan and Wet’suwet’en peoples of northern British Columbia were claiming a more fundamental and comprehensive Aboriginal right - native title to their traditional lands. The Court has responded to this claim with a much broader view of native title, as a constitutionally recognized right, than it took to free-standing activity rights untied to traditional lands. (Russell 1997: 247)

21. There is an important lesson embedded in this analysis. If the courts behave incrementally and interpret narrowly Aboriginal rights when the claims are for "activity based" interests not directly connected to their view of the land yet act more expansively when confronted by broad-based territorial claims including jurisdiction (self-government), then First Nations should become hesitant to continue to engaged in the "activities based" approach to litigation (such as trials for hunting or fishing infractions). Of course such an opportunity does not come without a cost. Expansive litigation strategies are more costly, require extensive preparation and take more time.

22. The Delgamuukw decision has been heralded by many as a victory. Before we are willing to join in the applause, it is essential to analyze the degree to which the court was able to "break with the past" as the courts themselves mandated in the Sparrow decision. The cause of our concern is perhaps most overt in the court’s discussion of evidentiary burdens despite the fact that this is the portion of the judgment that is most frequently hailed as a victory. The celebration centres on the fact that the courts declared that oral history is equal in weight to written history, overturning the evidentiary framework which would usually have operated to exclude such evidence. Examination of the oral history victory demonstrates precisely how the decision tastes "bitter-sweet" for many First Nations. (Russell 1997: 247) In affirming that the courts must put sufficient weight on oral histories when First Nations enter them as evidence, Lamer concluded:

The trial judge’s treatment of the various kinds of oral histories did not satisfy the principles I laid down in Van der Peet. These errors are particularly worrisome because oral histories were of critical importance to the appellants’ case. They used those histories in an attempt to establish their occupation and use of the disputed territory, an essential requirement for Aboriginal title. The trial judge, after refusing to admit, or giving no independent weight to these oral histories, reached the conclusion that the appellants had not demonstrated the requisite degree of occupation for "ownership". Had the trial judge assessed the oral histories correctly, his conclusions on these issues of fact might have been very different. [Delgamuukw, 56]

Accordingly, the courts will not be tolerant of a situation where existing procedural rules compromise First Peoples’ ability to have a case fairly heard and justly decided. This is, of course, an important accomplishment. It should not be seen as an accomplishment that is larger than the oral/written rule on which it was decided despite the fact that First Nations face many similar barriers embedded in Canadian law and its procedural rules.

23. One way of discerning the degree to which the 1997 Supreme Court of Canada decision ignores the thresholds enumerated in Sparrow is to look at the language Chief Justice Lamer selected when accepting the validity of oral history in the courtroom. He states:

the laws of evidence must be adapted in order that this type of evidence can be accommodated and placed on an equal footing with the types of historical evidence that courts are familiar with, which largely consists of written documents. [Delgamuukw, 49-50; emphasis added.]

24. In essence, the Chief Justice concludes his findings on the admission of oral history with no more than a bit of tinkering. Existing legal standards including the rules of evidence can address at least one element of First Nation’s distinctness that being the different form historical traditions take. To imply that there is nothing systematically "wrong" with the existing rules of evidence and their ability to relate to Aboriginal Peoples without engaging in some from of analysis is preposterous and this certainly could never have been Lamer’s intent. However, if inclusion is the appropriate standard, then merely offering the existing legal paradigm, tinkering included, will not suffice. In effect, this kind of reasoning only allows First Nations access to being "white" at law (because that is the existing paradigm) and this of course is nothing more than the familiar pattern of colonialism. In repeating the historical themes that to date have characterized colonial/First Nations relations, this approach certainly does not respect the constitutional status of Aboriginal rights.

25. In examining the offer to "accommodate" First Nations held out in Delgamuukw, the fact that in 1982 Aboriginal and treaty rights acquired constitutional status must not escape our attention and ought to bolster the argument for a new legal regime for First Nations. The Canadian constitution is, of course, the "supreme law of the land." (Section 52, Part II). There is no domestic legal status greater than constitutionally protected rights. This must mean something in real terms for the scope and content of Aboriginal and treaty rights. However, the degree to which the Courts (and legislatures) are respecting this status is questionable.

26. The detail of our disappointment is demonstrated by considering whether the language in which First Nation rights are accorded recognition in Delgamuukw meets the standard established in Sparrow. The words "adapt" and "accommodate" appear in the legal discourse of equality rights and legal theories of non-discrimination. The degree to which legal anti-discrimination provisions have forced governments to do things differently is open to question and it is recognized these protections frequently reinforce the racial/cultural status quo. The fact that much of the successful equality rights jurisprudence has been brought forward by white men and white women (Aylward; Brodsky and Day 1989; Razack 1998) is sufficient in our minds to cause concern about the degree to which there is a potential to bring about both fundamental and transformative change by transplanting such theories of anti-discrimination into the sphere that should be occupied by a coherent theory of Aboriginal rights (or more accurately, "relationships"). (Monture-Angus 1999a: 40-63)

27. Of particular concern is the inability of Canadian courts to apply an understanding that reflects lived realities of intersectionality rather than merely compounding grounds of discrimination when plaintiffs are First Nations and women and/or poor and/or isolated on reserves and so on. (Aylward 1999; Comack et al. 1999; Eaton 1994) The accepted scope that the courts allow litigation to take influences the kinds of situations, that is colonial outcomes, that qualify for remedy. This is the infrequently examined gate-keeping function which can be attributed to the court’s failure to recognize that the problem of colonialism is greater than the denial of hunting, fishing and gathering rights or the theft of land. Our conclusion, therefore, is that words like "accommodate" and "adapt" are clearly below the standards envisioned in Sparrow.

28. The kinds of problems First Nations will turn to the courts for assistance in the next decade also demonstrates the degree to which a healthy amount of skepticism might be expected and not only expected will help to keep our hopes for litigation realistic. Residential schools would be the obvious example. The legal imagination presently visions remedies only for the overt and direct incidents of physical and sexual "abuse". (Chrisjohn et. al 1997) There is no legal acknowledgment that residential schooling significantly contributed to loss of language, loss of parenting skills, loss of community, loss of identity, loss of self worth and that these losses all add up to various outcomes of self abuse including suicide and substance abuse. These losses can be tallied up across generations and include those of us who were not forced or taken to residential schools. A second example, is the fact that the legal and political systems have failed to create avenues of redress for the Potlatch and dancing prohibitions earlier mentioned. The problem is more accurately described as a lack of legal imagination or even the will to imagine (Macklem 1991: 382-456).

29. Our concern is equally with the application of "rights" theory to Aboriginal claims and can also be seen in the conceptual origins of non-discrimination provisions such as those found in the Charter and Human Rights Codes. (Monture-Angus 1995: chs. 4,7,8) As Kathleen Lahey concluded:

Thus I locate the struggle over the rights of disadvantaged groups generally, and more particularly the rights of sexual minorities, in the larger struggle that has unfolded in state societies over the civil capacities of ‘persons.’... I have concluded that the contemporary human rights movement became possible only when state societies began to reach consensus that older notions of ‘civil incapacities’ - such as the lack of legal capacity assigned to women by virtue of marriage - should no longer be used to delimit different classes of adults.

Reading human rights law in this historical context has led me to conclude that the ‘human rights’ movement has had a dual function; it has served to bring to an end the political practice of using ‘legal incapacities’ to strip some human beings of their social and economic power, and it has protected members of groups that have historically been denied full legal personhood from wide-ranging forms of injury to their ‘human dignity’. Although most commentators have used the notions of personhood and human dignity almost interchangeably, I differentiate these concepts here. Even though human rights guarantees were originally designed to secure the basic incidents of full legal personality to disadvantaged groups, merely securing the ‘human dignity’ of people who remain ‘civilly incapacitated’ in any way will not have much effect on deep-seated hierarchies of privilege. (Lahey 1999: 101-2)

30. The level of analysis that Professor Lahey has brought to the circumstances of sexual minorities also applies to other groups who have had their civil capacities impaired (and in some situations, such as matrimonial property on reserve, First Nations women still remain non-persons). Colonial imposition on First Nations did not end with attacks on the individual rights of First Nation persons but also it interfered with "rights" in First Nations’ legal systems. The degree to which the acknowledgment of a few rights under the constitutional of Canada is thus revealed as incomplete. We are not convinced that the current legal rights paradigm can (or will) fully address the slate of consequences and impacts of colonial oppression whilst recognizing that the interferences are both individual and nation based.

31. A single example illuminates our concerns. It is evident in recent litigation such as the Corbiere decision (which was, in fact, a Charter case and not an Aboriginal rights case under section 35) that the Charter’s section 15(1) is influencing the conceptualization of Aboriginal rights and will likely continue to do so especially if Aboriginal litigants continue to rely on the Charter in framing their litigation. [Corbiere v Canada (Minister of Indian and Northern Affairs), 1999. 3 C.N.L.R. 24.] The problem with the Charter’s influence on section 35(1), an influence most likely gained simply because they are both rights provisions, is that the connection (or lack thereof) is largely judicially unquestioned. It is not a matter as simple as arguing whether or not the Charter should apply to First Nations governments. Rather the question and answer should be framed in a clear articulation of how the Charter will protect what little First Nations have left (and in our opinion it will not because Aboriginal rights will then be subject to individualized scrutiny under the Charter regime). First Nations considering litigation under the Charter should be very careful to scrutinize the consequences embedded in that instrument. (Turpel: 3-45) The failure to do so may result in a potential misdirection of section 35(1) toward a rights paradigm driven by a culture that values individualism (versus some form of discussion about communal or collective rights). This dichotomy is not helpful.

32. In Corbiere, L’Hureux-Dubé J indicates that the significant underlying value in the Charter is human dignity. She cites from the Law decision as follows:

Human dignity means that an individual or group feels self-respect and worth. It is concerned with physical and psychological empowerment and integrity. Human dignity is harmed by unfair treatment premised on personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society. Human dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se, but rather concerns the manner in which a person legitimately feels when confronted with a particular law. (Corbiere, 47-48; emphasis added)

33. It is not that we dispute that the fundamental legal principal in Canadian equality law, human dignity, should not also broadly apply to Aboriginal rights litigation under section 35(1). In fact, human dignity (although not usually expressed in precisely this way) is one aspect of the concept of respect that defines traditional First Nations approaches to relationships and natural laws. The application of this principle must be applied in different ways which are not easily comprehended by non-First Nation’s societies. Therefore, it is better left to First Nations to determine how and when such principles of human dignity will apply to our relationships, especially to our internal relationships. In any event, from a legal perspective one cannot ignore the fact that the Courts have declared that Aboriginal rights are in some ways analogous to Charter rights despite their obvious differences such as their communal/collective nature. (Sparrow, 177) Again, this is another example of the court’s conservatism and demonstrates their inability to access legal imagination.

34. The precise meanings of both equality and human dignity in the context of potentially reconciling competing constitutional claims must be carefully considered. In Delgamuukw, Chief Justice Lamer provides this interesting articulation of the principles guiding Aboriginal rights interpretation:

Aboriginal rights are truly sui generis, and demand a unique approach to the treatment of evidence which accords due weight to the perspective of Aboriginal peoples. However, that accommodation must be done in a manner which does not strain "the Canadian legal and constitutional structure". (Delgamuukw, 47-48. Lamer quoting himself in R. v Van der Peet, [1996] 4 C.N.L.R. 184 at 202)

35. Lamer’s interpretation of Aboriginal rights does not permit application of First Nations’ approach to the law or a just reconciliation of historical circumstance that excluded First Nations from Canada’s original constitutional order and sovereign claims if those claims "strain the Canadian legal and constitutional structure". What must be understood is that any definition of equality which vests Aboriginal rights with a duty to not strain the constitutional order can only protect the legal and political status quo. At best, this is enforcing equality as sameness, if it is equality at all. Equality perhaps is not even the appropriate standard to hold Aboriginal rights to as it is ground in a particular culture’s legal understanding. Equality as presently understood by Canadian courts might not be a universal good. The irony of protecting the Canadian constitutional structure at the expense of Aboriginal rights (and the Aboriginal legal order) is transparent and the value of human dignity is not even mentioned.

36. This examination exposes the trend of the judiciary is toward conservatism and it also demonstrates that Canadian law makers are not really prepared to undertake wholesale changes to existing legal frameworks to incorporate First Nations conceptions of our "rights" or "relationships". If this conclusion sounds harsh, it is wise to remember that the final outcome in Delgamuukw was to send the matter back to trial. Rather than creating space for First Nations law making, the case law suggests that existing laws and legal principles may have only shifted slightly to create a small First Nations enclave within prescribed laws and rules when those enclaves are no-threatening to Canadian legal ideals. This is not equality nor does it respect human dignity. It is merely nominal power sharing to only the degree that those with power feel comfortable or non-threatened. It is the "trinkets" approach to Aboriginal claims resolution and as such, is unsatisfactory.

37. The Supreme Court of Canada has been unequivocal in stating on numerous occasions that the underlying principle of section 35 is the reconciliation of Aboriginal rights with the assertion of Crown sovereignty (Van der Peet, 202). Reconciliation is a complex concept that must be carefully considered. However, one thing is clear in our minds: there is a significant difference between mere "accommodation" or "adaptations" of existing Euro-western legal orders of Aboriginal distinctness and true, fair and just reconciliation. Aboriginal peoples, in our opinion, are not in search of mere accommodations but transformational changes such as the court in Sparrow imagined. There the court indicated that what was to be expected since the entrenchment of Aboriginal rights in the Canadian constitution was a "change in the rules of the game". (Sparrow, 178). It is from transformational changes that the potential to create a truly new relationship between Canada and First Nations exists. The danger and the worry is that the court will in fact define the parameters of new constitutional relationships that only further entrench old colonial patterns. Such a possibility looks to First Nations to do all the changing. This cannot be the reconciliation the court refers to as the basic premise underlying section 35(1) as such an approach is obviously not new (Delgamuukw, 78). It remains colonial.

38. In adhering to the standard of true reconciliation, we must question whether the court is engaging in transformative change or merely engaging in flowing and supportive right’s rhetoric regarding the developing law of Aboriginal rights including Aboriginal title. This examination requires the determination of the degree to which the Delgamuukw decision actually incorporates First Nations ways of thinking and seeing the world (a more respectful way of acknowledging what the court’s frequently label "Aboriginal perspective"). In addition to the concerns we have raised about Delgamuukw’s oral history victory, this project also requires a careful consideration of the courts findings with respect to the sui generis nature of Aboriginal rights and Aboriginal title, the content of Aboriginal title, the inherent limit on land use created by Lamer, communal rights and compensation. This further analysis also substantiates the conclusions we have drawn earlier in this paper and exposes the degree to which the Delgamuukw decision feels terribly close to an old pattern.

39. Before considering the specific components of the Delgamuukw decision, it is important to recognize that the findings in the case often forces us to walk down the blade of that double-edged sword constantly balancing our understanding as First Nation’s persons and our heartfelt commitments to live in the ways of our people with our legal training. [Candice Metallic is a member of the Mi’qmaq Nation and Patricia Monture-Angus is Kahnyen’hehaka (Mohawk).] Such tension is also experienced as the "bitter-sweetness" that has thus far been a characteristic of any form of reconciliation that governments hold out or courts permit. We do not accept that this tension is necessarily the central quality of reconciliation. Rather, for true and sincere reconciliation of First Nations and Canadian sovereignties to occur, the courts must undertake to examine the idea of underlying crown title which is a central building block only in the construction of Canadian sovereignty. This is a specific issue which is part of the broader question asked earlier in the paper: What rights in law did the settlers have? As First Nations have existing legal and political structures. True reconciliation should equally respect these structures and afford an equal expectation that wandering into the Canadian constitutional fold does not unduly strain those legal and political systems or relationships of First Nations.

40. If all parties are not equally motivated by the goal of true reconciliation, then something has to happen to close the gap between the two parties. James Youngblood Henderson (Chickasaw) has examined the relationship between First Nations’ aspirations and judicial pronouncements in Delgamuukw and noted:

The challenge to the Canadian judiciary and other parties is to develop a sui generis and transcultural approach to Aboriginal rights to land and activities issues, rather than relying on British traditions. (Henderson, 10)

41. The tantalizing question is the degree to which the courts are capable of stepping up to this standard. As already demonstrated, the evidentiary pronouncements in Delgamuukw are cause for concern despite the cause for celebration over the oral history "victory". (It is essential to understand that courts are not equipped or trained to understand how to listen to oral history evidence. The concerns about cultural outsiders determining the value of Indigenous systems are deep and complex.) Second, the courts seem to have concluded that reconciliation is a threshold task without considering the degree that First Nations would agree with this conclusion or subscribe to the value of such a process. Perhaps the priority in First Nation communities is really about over coming colonial manifestations.

42. Commenting on the task before the courts, and in our view, arriving at the essence of what skills reconciliation requires the court to possess, James Youngblood Henderson continues:

Such reasoning suggests the judicial respect for Aboriginal law and the common law must be equal for any translegal reconciliation at the heart of a just trial. However, this approach creates a unique translegal and transcultural-balancing test that is unexplored in common law traditions and legal pluralism. This approach is also inconsistent with the Court’s decision that Aboriginal law and prior presence comprise the source of Aboriginal rights. (Henderson 10)

The emphasis of both the judiciary and legal academics demonstrate that they both place their faith in the concept of sui generis Aboriginal rights to create space for Aboriginal Peoples and their rights. We are not fully convinced and do not share this hope. Sui generis may be the court’s replacement for the word "existing" that was meant to limit Aboriginal rights and particularly stop the revival of extinguished rights.

43. For rights to be sui generis simply means that they are not like anything else.
Although this sui generis status which attaches to Aboriginal rights can be demonstrated and does provide certain benefits, it also clearly can act to marginalize and minimize the content of those constitutionally protected rights. Further, it creates an entrenched uncertainty as one never knows when established rules of law and evidence will be followed in Aboriginal rights cases or when those rules will be discarded as sui generis. Uncertainty will not provide access to just resolutions of Aboriginal claims.

44. Again, walking on the blade of the double-edged sword, it is equally possible, as just noted, that the sui generis nature of these rights does not create space but rather holds the potential to further entrench the marginalization of Aboriginal Peoples through the vehicle of Aboriginal rights including Aboriginal title. The Court in Delgamuukw, we believe, attempts to protect Aboriginal title from such a consequence. Lamer CJ. indicates that Aboriginal title is a "right in land" or in other words it is not some lessor form of property right than those held in western systems of law (Delgamuukw, 68) At the same time, the court describes the position of Aboriginal title in Canadian law as sui generis in nature. Again, this simply means that Aboriginal rights and Aboriginal title are "not like anything else". With this simple definition we do not take issue. It is a question of how the sui generis nature of Aboriginal rights (including Aboriginal title) are operationalized that causes us concern. There is little clarity or guidance provided by the courts beyond claiming the sui generis nature of Aboriginal rights including Aboriginal title. Without clarity, a concept such as sui generis is overly flexible and can be used by the court as easily to limit Aboriginal rights as to protect them.

45. Since the decision in St. Catherine’s Milling (1888), the high courts have been suggesting that Indian title was "a personal and usufructuary right" and that the rights of "Indians" are sui generis (St. Catherine’s Milling etc. Co. v R. (1888), 14 A.C. 46 at 54 (P.C.); supra, Delgamuukw, 58). The courts have been very clear since Calder that the concept "personal and usufructory rights" is not applicable nor is it helpful in delineating Aboriginal land rights. (Delgamuukw, 59; supra, Calder, 209.) As this idea never came from First Nations and was in fact offensive to us, it is difficult to situate the courts setting aside of an idea with negative consequences for us, as some kind of victory. Equally, the sui generis nature of Aboriginal rights arising at the same time and in the same way, is now seen as a positive focus within the slowly developing theory of Aboriginal rights (and relationships). We are not convinced that this concept, sui generis, should be so quickly embraced despite its emotive fit with our belief in our difference. Emotive fit is insufficient to guarantee legal respect which is really the issue.

46. Other scholars have also expressed their concern about the potential harmful characterization of the rights of Aboriginal people as sui generis. John Borrows (Anishnabe) and Leonard Rotman thoughtfully describe their concerns:

The sui generis concept is employed to discard those notions of the common law that have not been "sensitive to the Aboriginal perspective itself on the meaning of the rights at stake." As such, the doctrine can be characterized as part of the common law - that attempts to leave behind much of the common law. Such a selective invocation of the common law is a risk-laden speculation for Aboriginal peoples. If they submit to even a part of the common law, it is inevitable that the other parts of this structure will continue to operate. A contextual shift in one doctrine does not mean that the accompanying legal blueprint will be redrafted to conform to the new principle. There is still an intricate system in place that supports the old design and architecture of the law. Since the past application of common law principles has restricted Aboriginal peoples in the exercise of their original entitlements, its further use could represent the continuation of colonialism’s design. (Borrows and Rotman 1997: 26-7)

Thus, the sui generis characterization of Aboriginal rights is problematic in the degree to which it attempts to convince us that the tenets and practices of colonialism will be left behind.

47. In the last three decades, the courts in Canada have begun to describe the content of Aboriginal title in several ways. The constant theme of the decisions is the sui generis nature of Aboriginal rights including Aboriginal title. Although this paper is not intended to provide a rigorous analysis on the subject of Aboriginal title, a brief discussion of the courts findings is necessary to ground our remarks. (McNeil 1997 and 1998) The court lists three "dimensions" of Aboriginal title: inalienability, source and communally held. We take no issue with any of these three dimensions but note instead, that this is not really a comprehensive or descriptive definition of Aboriginal title. It is equally devoid of any First Nations’ conception of land holding (and First Nations clearly had well developed notions of territory). In introducing their discussion of Aboriginal title, Lamer notes that there has "never been a definitive statement from either court [the Judicial Committee of the Privy Council or the Supreme Court of Canada] on the content of Aboriginal title." (Supra, Delgamuukw, 57-9).

48. The Chief Justice continues:

I have arrived at the conclusion that the content of Aboriginal title can be summarized by two propositions: first, that Aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those Aboriginal practices, customs and traditions which are integral to distinctive Aboriginal cultures; and second, that those protected uses must not be irreconcilable with the nature of the group’s attachment to that land. (Supra, Delgamuukw, 58).

What is particularly interesting in this conclusion is that we find little that is really new or different in the court’s expression. This is largely a restatement of existing law dating back to at least the Calder decision. The phrase "exclusive use and occupation" strikes us as dramatically similar, given the time that has passed, to the finding of "personal and usufructory" right found in the 1888 St. Catherines Milling decision.

49. Particularly in the face of the Sparrow decision which suggests that the "old rules of the game" no longer apply, it is disheartening to closely examine the reasoning in the Delgamuukw decision. It is similar to Sparrow in the fact the court still insists on distinguishing the rights held by Aboriginal people as in no way equivalent to fee simple. (62) This "full ownership" is reserved for the crown and its subjects. The result, we believe, is the construction of a hierarchy of legally recognized property rights where Aboriginal title is subordinate. The court itself admits to this arbitrary constriction when it defined Aboriginal title as a right in land (57) but falling short of "a form of inalienable fee simple". (62) Our point is simple: for a right that is constitutionally protected we do not find that the court has significantly challenged pre-existing assumptions and stereotypes of Aboriginal legal systems and property ownership (more accurately expressed within the culture as land and territorial relationships). If the standard is, and it is our standard, that we see ourselves and our cultures in the courts findings, then it is clear the court has failed. The decision carves out a small space for Aboriginal title but we find the space unnecessarily narrow and limited. It does not respect our understanding of what the relationship in Canadian law could, and perhaps, should be.

50. The unnecessary carving out of an overly small space has occurred because the court has not sufficiently challenged its western colonial heritage and the assumptions that flow from that heritage. The court has also failed to challenged its own laws and historical circumstances in such a manner that would allow Aboriginal and treaty rights to flourish in a manner that all constitutionally protected rights deserve. And the fact that Aboriginal rights including Aboriginal title are constitutionally validated must not be obscured. (65) Moreover, the courts have only recently begun to hear First Nations’ testimony concerning our rights and remain challenged by precisely what to do with this evidence. Therefore, the extent to which this new approach has affected the outcome of any particular case is certainly questionable and will likely remain this way for some time into the future. This realization holds particular consequences for First Nations considering their litigation options and must form a basis of the analysis that communities with their lawyers make before commencing and during litigation. This is a new job for lawyers and a different kind of task. Therefore, it is First Nations communities that must be vigilant in ensuring that this analysis is made.

51. There are other examples which highlight our concerns about the potential of litigation as a strategy. One is the limit that is placed on the use of Aboriginal title lands. This is perhaps the most offensive aspect of the Delgamuukw decision. This "inherent limit", as the court describes it (62) is neither necessary nor logical. Lamer opines:

The content of Aboriginal title contains an inherent limit that lands held pursuant to title cannot be used in a manner that is irreconcilable with the nature of the claimants’ attachment to the land - it is a sui generis interest that is distinct from "normal" proprietary interests, most notably fee simple. (62-63)

Again, our concern with the sui generis characterization of Aboriginal rights is evident here. It is the sui generis nature of Aboriginal rights that are used to justify the application of the "inherent limit" on land use (a limit that if applied to fee simple ownership would be viewed as outrageous).

52. The courts also see their role as protecting Aboriginal title through the application of the "inherent limit". This is connected to the source of Aboriginal title as independent from crown action. Prior occupation is relevant in two ways; first because prior occupation demonstrates Aboriginal title, and second, "because Aboriginal title originates in part from pre-existing systems of Aboriginal law." (63) These factors culminate in the court’s recognition that the continuity of the relationship with the land is important to the future continuance of Aboriginal communities as Aboriginal and as distinct. Lamer concludes:

The relevance of the continuity of the relationship of an Aboriginal community with its land here is that it applies not only to the past but to the future as well. That relationship should not be prevented from continuing into the future. As a result, uses of the lands that would threaten the future relationship are, by their very nature, excluded from the content of Aboriginal title. (63)

53. Granted, there is no doubt that First Nations have teachings that instruct and inform on the proper relationship of the people to the land. This relationship, as Lamer correctly points out, is both past looking as well as future looking. It is the land that holds not only our ancestors but also the "faces in the sand" (Mohawk expression for the children yet to be born). However, Lamer fundamentally misunderstands the complexity of First Nations relationships with the land. The relationship is a spiritual and ceremonial relationship. The land is mother (and that is not a metaphor). (Little Bear 2000: 78) It is where we come from. Granted, Lamer as a representative of the court is able to mouth compliance with what the courts refer to as Aboriginal perspective. Unfortunately, this does not reflect the complex understandings of our social, cultural, spiritual or governmental orders as the First Peoples themselves understand it. If "Aboriginal perspective" is acknowledged by the courts, then one would assume that constitutional protections at least reflect the knowledge of the people(s). Acknowledging First Nations distinctness and knowledge systems must be more than legal platitude.

54. Equally troubling and likely a certain reflection of negative stereotypes about First Nation’s ability to manage their own affairs, are the examples Lamer chooses to delineate the need for boundaries on Aboriginal use rights. He notes that: "uses of the lands that would threaten the future relationship are, by their very nature, excluded from the content of Aboriginal title." (Supra Delgamuukw, 63) He provides that hunting grounds cannot be strip mined and that ceremonial lands cannot be turned into parking lots! (63-4)

55. The irony is that the pillage of resources from Aboriginal lands, be that timber or minerals, has historically not been carried out by Aboriginal people. Rather it is the effect of government sanctioned commercial activities carried on by large corporations vital in the maintenance of the Canadian economy. The damage to Aboriginal lands by external forces is not discussed in the case nor is there a relationship drawn by the court to the "inherent limits". If First Nation’s lands need protecting (and they do) it is not from First Nation’s citizens. The result is the decision does not reflect either Aboriginal or Canadian realities. It was these very realities that were causal factors in the Gistkan and Wetsu’weten peoples engaging in court action in the first place. The result of the litigation is the creation of a new category of supervision over First Nations, the "inherent limit" and, as such, colonialism is not denied but re-invented by the court. The irony is indeed extreme.

56. These examples, strip mining and parking lots, are deeply offensive to Aboriginal people, but more troubling is the idea of the enforcement of such "protections". We are not suggesting that any land use regulations are inappropriate, just that those regulations need to respect the culture and the realities of life in the community. And equally, legal remedies need to offer First Nations the opportunity to protect our land and the way our culture is connected to that land against outsiders. It is difficult to imagine that First Nations themselves would initiate such litigation that seeks court intervention in the internal regulation of land use. In this way, the court’s comments reflect a more contemporary, but none-the-less unjustified, stereotype that First Nations governments do not respect their people. This disrespect of citizens may have occurred as isolated incidents, it is certainly not the norm. Rather, it appears that the court has revitalized a rationalization for the "Indians are wards" colonial notion and given the federal government another source and form of legitimacy for intruding in First Nation’s lives and governments. This is both colonial and paternal. We ought to be able to expect more from Canadian courts in the twenty-first century.

57. Another notion of which the courts became especially fond in the Delgamuukw decision is the idea that Aboriginal rights (including Aboriginal title) are communal rights. Although, at the cursory level we agree emphatically with this position, as land rights (more accurately thought about as land relationships and/or land responsibilities) were a commodity of the community and not necessarily of certain individuals. But to juxtapose Aboriginal rights and especially Aboriginal title as "communal rights versus individual rights" is to blatantly disregard Aboriginal cultures, traditions and governance structures where the individual and collective are involved in co-existing relationships. When the court had the opportunity to demonstrate their knowledge and regard of First Nation’s cultures and traditions, they chose instead to impose colonially laced remedies.

58. Communal rights in the Delgamuukw decision are used to deny First Nations people access to individualized rights on occasion and this potential is further embedded in the present litigation framework. (R. v Sundown, [1999] 2 C.N.L.R. 289 at 307 (S.C.C.). R. v Marshall, [1999] 4 C.N.L.R. 161. According to Department of Fisheries regulations, access to fishing is based on only a handful of licenses being issued. This handful is supposed to satisfy and support the entire community. This essentially denies many Mi’qmaq the opportunity to exercise their treaty rights.) In the same manner that the fairly intended concept of sui generis can operate in two directions, one that is respectful to Aboriginal people and nations and one that only offers further marginalization and oppression, so too is the potential interpretation and application of the communal nature of Aboriginal rights. This is in fact the double-edged sword that is embedded in our thinking about these issues. It is clear that the benefit of this conceptual framework can accrue to either Canada alone or Aboriginal nations. Rather, the solution rests on balancing both these interests and sovereignties. At the present time, the direction and the commitment of the courts is, at best, unclear. Therefore, the degree to which courts can mediate a solution is highly questionable. First Nations must carefully consider the obstacles and uncertainties as part of their litigation strategies.

59. Although much of our response to Delgamuukw is about our concern with the whittling down of constitutional rights, we also recognize at least one area where potential still remains. Compensation is an interesting issue raised by the courts. The dicta regarding adequate compensation as a remedy for lack of consultation (including more than monetary remedies) is progressed no further than a few preliminary comments in the decision. (Halfway River First Nation v British Columbia, [1999] 4 C.N.L.R. 7.) The duty to consult is an element of the fiduciary duty the Crown owes to First Nations. (Supra, Delgamuukw, 76-80) The Court's comments are especially interesting with reference to the notion that compensation arises on a failure of the government to adequately consult with First Nations:

The economic aspect of Aboriginal title suggests that compensation is relevant to the question of justification as well, a possibility suggested in Sparrow and which I repeated in Gladstone. Indeed, compensation for breaches of fiduciary duty are a well-established part of the landscape of Aboriginal rights: Guerin. In keeping with the duty of honour and good faith on the Crown, fair compensation will ordinarily be required when Aboriginal title is infringed. (80)

60. There is also an issue of the extent to which consultation is required to satisfy the governments obligations. (79) It is an interesting matter because it holds the potential to truly force governments to begin doing business differently with First Nations. We stress that this is only an introductory comment and it will take time for the courts to clearly articulate the breadth and scope of these findings. First Nations who are presently considering litigation or developing strategies are encouraged to consider carefully and creatively the issue of remedies such as compensation for failure to consult. (Lysyk J.; Lawrence and Macklem 2000)

61. In Delgamuukw, Lamer is clear that the underlying purpose of the constitutional provision recognizing and affirming Aboriginal rights is reconciliation. (Supra, Delgamuukw, 78) Reconciliation, in our view, is a complex concept in the context of Aboriginal relations with Canada. Reconciliation does not sit on the air. It is a subsidiary process that must follow a process of truth telling. This, in the circumstances of relations with First Nations, must be part of a process of education where Canadians choose to enlighten and educate themselves about the many atrocities that were (and are) committed against First Nations. All of these considerations associated with reconciliation lead us to question whether we are yet ready to engage in a sincere process of good faith leading toward reconciliation.

62. Based on a review of litigation from Calder through to Delgamuukw and having an appreciation of the limitations of litigation, it is evident that First Nations do not have the luxury of determining the parameters of reconciliation, but rather remain primarily concerned with continuing to protect what little we have. This suggests that litigation by First Nations has done little to shift the underlying dynamics of colonialism on to a foundation that would enhance reconciliation. It would serve the integrity of the legal process if the courts were careful to ensure that their decisions reflect First Nations realities rather than pontificate their ideals of the way they would like things to be. Without such a shift, the distance between First Nations and Canadian institutions remains unchanged and unchallenged.

63. It is clear that one of the significant difficulties that continues to perpetuate the tension in Aboriginal rights litigation is the lack of a coherent and a mutually agreed upon theory of Aboriginal rights. As Patricia Monture-Angus has concluded:

Yet again, this is a familiar theme. Litigation in the area of Aboriginal rights and Aboriginal title proceeds without a grounding in a solid, coherent theory of the relationship between Aboriginal people and the state (which is really the essence of the problem with Aboriginal rights litigation). Without the theory, the direction we are headed is unclear. It creates the opportunity to focus on limiting Aboriginal rights rather than enhancing those rights. This latter task should be the ambition of the Court, as constitutionally protected rights should be taken seriously. (Monture-Angus 1999a: 129)

64. It is our view that this theorizing, as a first step in reconciling the multiple sovereignties which make up the Canadian state, must occur in a way that fully involves Aboriginal people as "equal partners". Our analysis cautions First Nations on the degree to which they can rely on the courts to genuinely be a forum for rigorous discussion and resolution of the outstanding issues. If a forum for discussion where equal partners cannot or does not exist, we are not yet clearly at a new frontier but we are merely left with too much of the same-old same-old, colonialism.


Authors’ note

This paper reflects the law and scholarship at June 1, 2000. We would, in addition, like to emphasize the fact that our concerns with the Canadian legal process and practice are loudly demonstrated in the Supreme Court’s handling of the Mitchell v M.N.R rendered May 24, 2001, File No. 27066.

The authors would like to thank the Delgamuukw Research Group; John Borrows, Frank Cassidy, Kent McNeil, and Maria Morellato, for their helpful comments on an earlier draft of this paper. We would also like to pay our respects to the Elders who have spent time with us and taught us to walk these two roads.

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