The Constitution's Peoples: Approaching Community in the Context of Section 35 of the Constitution Act, 1982

The Constitutions Peoples: Approaching
Community in the Context of Section 35 of

the Constitution Act, 1982

Brent Olthuis*

interlocutors

reconciliation between

Modern negotiations between the Crown (or private
parties) and Canadas 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
the
Aboriginal and non-Aboriginal elements of Canadian
society. The
this process must be
identifiable.

The community recognition needed to give effect to
section 35s 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).

thorique de

Les ngociations contemporaines entre la Couronne
(ou des parties prives) et les peuples autochtones
canadiens reposent largement sur les principes juridiques
articuls dans les principales dcisions jurisprudentielles en
la matire. Toutefois, ces dcisions nont pas encore abord
une question fondamentale : comment, la base, est-il
possible de dterminer
les groupes en mesure de
revendiquer des droits autochtones et des droits issus de
traits reconnus et confirms par larticle 35 de la Loi
constitutionnelle de 1982 ?
Lauteur affirme que cette question doit constituer la

pierre dassise
la doctrine des droits
autochtones et des droits issus de traits. Elle est galement
dune grande importance la poursuite du processus de
rconciliation entre les composantes autochtone et non-
autochtone de la socit canadienne. Les interlocuteurs de
ce processus doivent pouvoir tre identifis.

La reconnaissance de la communaut, ncessaire
pour que lapproche axe sur le groupe de larticle 35 soit
effective, ne peut tre de nature strictement subjective ou
objective. Ni un processus de dclaration unilatrale ni une
simple observation ne peuvent prcisment identifier les
communauts vises par larticle 35. Au contraire, cet
examen ncessite un exercice dinterprtation, prcis et
facilit par les lignes directrices que propose lauteur.
une

ultimement
reconsidration de certaines orthodoxies dominantes de la
jurisprudence du droit autochtone. Celles-ci incluent le
test permettant de dterminer lexistence dun droit
autochtone (issu de R. c. Van der Peet) et la notion selon
laquelle un
individu, membre dune communaut
autochtone dtenant actuellement des droits, doit prouver
un lien ancestral ou gnalogique un membre dudit
groupe dans le pass (issu de R. c. Powley).

entrane

Cette

analyse

* B.Com., LL.B., LL.M., of the Bars of British Columbia and Ontario and practising with Hunter
Litigation Chambers in Vancouver. This article is a modified version of my masters thesis. I would
like to extend my thanks to my thesis supervisors, Jeremy Webber and Paul Chartrand, whose
invaluable comments and encouragement helped in great measure to give shape to the argument I
present. I am also grateful for the comments provided by the McGill Law Journal editorial staff, as
well as those of three anonymous reviewers. I wish to acknowledge the financial support provided by
the SSHRC Canada Graduate Scholarships Program, the Edwin Botsford Busteed Scholarship, and
the University of Victoria Canada Research Chair Law and Society Scholarship.

Brent Olthuis 2009
To be cited as: (2009) 54 McGill L.J. 1
Mode de rfrence : (2009) 54 R.D. McGill 1

MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL

Introduction

I. The Constitutions 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 Groups 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

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B. OLTHUIS COMMUNITY IN THE CONTEXT OF SECTION 35

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 judiciarys 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] Mtis
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
individuals claim to the benefit of the communal rights.

In my view, it is possibleand preferableto 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 Courts 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 Information about the initiative, including status reports, is available through the B.C. Treaty
Commission, the independent body that facilitates negotiations between the First Nations and the
governments of British Columbia and Canada. See online: B.C. Treaty Commission .

2 R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207, 230 D.L.R. (4th) 1 [Powley].
3 Ibid. at paras. 30-33.

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I. The Constitutions 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, 18675 (where it includes the Inuit6 and may
also include the Metis7), 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

4 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, reprinted in

R.S.C. 1985, App. II, No. 44.

5 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5.
6 Reference as to Whether the Term Indians in Head 24 of Section 91 of the British North
America Act, 1867, Includes Eskimo Inhabitants of the Province of Quebec, [1939] S.C.R. 104, [1939]
2 D.L.R. 417 [Re Eskimos cited to S.C.R.].

7 Some authorities take the view that s. 91(24) does include the Metis. See e.g. R. v. Alphonse,
[1993] 5 W.W.R. 401, 80 B.C.L.R. (2d) 17, MacFarlane J.A.; Catherine Bell, Who Are the Metis
People in Section 35(2)? (1991) 29 Alta. L. Rev. 351; Report of the Royal Commission on Aboriginal
Peoples: Looking Forward, Looking Back, vol. 1 (Ottawa: Supply and Services Canada, 1996)
[RCAP: Looking Forward] at 256. Contra Bryan Schwartz, First Principles, Second Thoughts:
Aboriginal Peoples, Constitutional Reform and Canadian Statecraft (Montreal: Institute for Research
on Public Policy, 1986) at 227-47. In R. v. Grumbo, the prosecuting provincial Crown conceded, for
the purposes of the trial only, that s. 91(24) included the Metis; however, the federal Attorney General
declined even to participate in the trial ((1998), 159 D.L.R. (4th) 577, 168 Sask. R. 78 (C.A.)).

Of course, if the federal Parliament does have legislative authority over matters relating to the
Metis people, it has yet to exercise it. On the other hand, lawmakers in Alberta and Saskatchewan
have. See Metis Settlements Act, R.S.A. 2000, c. M-14, as am. by S.A. 2004, c. 25; Mtis Act, S.S.
2001, c. M-14.01.

8 The Indian Act expressly excludes the Inuit from its ambit (R.S.C. 1985, c. I-5, s. 4(1)).
9 The NRTAs for the Prairie provinces are appended as Schedules (1) to (3) of the Constitution Act,
1930 (U.K.), 20-21 Geo. V, c. 26, reprinted in R.S.C. 1985, App. II, No. 26. According to R. v. Frank,
the right guaranteed in the NRTA proviso applies to Indians who, at any particular moment, happen
to be found within the boundaries of the Province … irrespective of normal residence ((1977), [1978]
1 S.C.R. 95 at 101, 75 D.L.R. (3d) 481). Another case holds that the reference to Indians includes
non-treaty Indians as that term was defined in the Indian Act (R.S.C. 1927, c. 98, s. 2(h)): R. v.
Ferguson, [1993] 2 C.N.L.R. 148 at 154 (Alta. Prov. Ct. (Crim. Div.)), affd [1994] 1 C.N.L.R. 117
(Alta. Q.B.). While that category likely includes individual members of Prairie Metis organizations,
the NRTA reference to Indians does not include the Metis as a people (R. v. Blais, 2003 SCC 44,
[2003] 2 S.C.R. 236, 230 D.L.R. (4th) 22).

10 Since s. 35(2) of the Constitution Act, 1982, unlike s. 91(24) of the Constitution Act, 1867,
differentiates Indian and Inuit peoples, the meaning of Indian in the newer provision must be
narrower. Furthermore, the Indian peoples in s. 35(2) are not merely the sum total of all Indian Act
bands. While modern bands may form rights-holding communities for the purposes of s. 35 (see the
discussion in Part II.A.2, below), there are First Nations that hold rights under s. 35 but that are not
bands under the statutefor example, the Innu of Labrador. Moreover, non-status Indians may
invoke s. 35 rights as well. See R. v. Chevrier, [1989] 1 C.N.L.R. 128, 6 W.C.B. (2d) 43 (Ont. Dist.

B. OLTHUIS COMMUNITY IN THE CONTEXT OF SECTION 35

2009]

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–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.

A. 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 societiessocial 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

Ct.) [Chevrier cited to C.N.L.R.]; R. v. Fowler (1993), 134 N.B.R. (2d) 361, [1993] 3 C.N.L.R. 178
(Prov. Ct.); R. v. Harquail (1993), 144 N.B.R. (2d) 146 (Prov. Ct.).

11 The Indian Act, in excluding the Inuit from its reach, defines them as a distinct racial collective
(the race of aborigines commonly referred to as Inuit supra note 8, s. 4(1)). Likewise, much of the
evidence marshalled by the federal government in Re Eskimos rested on alleged racial distinctions
between the First Nations and the Inuit. See Constance Backhouse, Colour-Coded: A Legal History of
Racism in Canada, 1900-1950 (Toronto: University of Toronto Press for the Osgoode Society for
Canadian Legal History, 1999) at 18-55. The Court in Re Eskimos, however, ultimately relied upon
historical evidencein which the Inuit were considered a distinct Indian tribeas indicative of the
intention of the framers of the constitution (supra note 6). This tribal rationale reveals an entirely
different conception of Inuit collectivity.

12 It has been held in at least one caseR. v. Acker, 2004 NBPC 24, 281 N.B.R. (2d) 275, 73
W.C.B. (2d) 605that the three-part individual membership test from Powley (supra note 2 at paras.
30-34) applies in respect of Indian peoples as well. As I discuss below, I would not endorse the
particular criteria set out in Powley. However, it is correct that, whatever the test itself may be, it
should apply across all groups in s. 35.

13 See John Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto: University
of Toronto Press, 2002) c. 1 and 2 [Borrows, Recovering Canada], discussing the spiritual, political,
and social conventions that traditionally guidedand continue to guideAboriginal peoples in their
relations with each other and the environment. See also Val Napoleon, Living Together: Gitksan
Legal Reasoning as a Foundation for Consent (Annual Consortium for Democratic Constitutionalism

MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL

Hypothetically, had the native and newcomer normative orders mirrored each
other exactlyor had either party entirely abandoned its own norms in favour of the
othersthere 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 common conception of
right. As it was, however:

[Vol. 54

At the moment of their encounter, Aboriginal and non-Aboriginal societies
possessed their own sets of norms, each created in ignorance of the other. They
constituted autonomous normative universes, without a common justice and
indeed without intercommunal norms capable of regulating their relations with
each other.15

Where the interests of the native and newcomer societies divergedfor example,
in contests over landthe maintenance of peace rested upon the emergence of a
normative framework to regulate difference, a modus vivendi.16 In this pursuit, the
early Aboriginal/non-Aboriginal relationship was characterized by a creative, inter-

Conference, Consent as the Foundation for Political Community, 2 October 2004) [unpublished
draft dated 29 September 2004] (customary law inheres in each aboriginal cultural system as a
whole, forming legal orders that enable large groups of people to live together and to manage
themselves accordingly at 1).

Judicial recognition of indigenous legal systems can be found as long ago as the early nineteenth-
century, in a series of well-known U.S. decisions: Fletcher v. Peck, 10 U.S. (6 Cranch) 87 at 146-47, 3
L. Ed.2d 162 (1810), Johnson J., dissenting [Fletcher cited to U.S.]; Jackson, ex dem. Gilbert v. Wood,
7 Johns. 290 at 295 (N.Y. Sup. Ct. 1810); Goodell v. Jackson, ex dem. Smith, 20 Johns. 693 at 710
(N.Y. Sup. Ct. 1823); Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 at 15-20, 8 L. Ed.2d 25 (1831),
Marshall C.J.; Worcester v. Georgia, 31 U.S. (6 Pet.) 515 at 542-43, 8 L. Ed.2d 483 (1832), Marshall
C.J. [Worcester cited to U.S.].

14 Given the brevity of this discussion, the generalized Aboriginal and non-Aboriginal (or
European) categories naturally conceal much internal difference. The discussion here centres on
British-Aboriginal practice in the Canadas, since it is from those relationships in particular that the
Canadian law of Aboriginal rights emerged. See e.g. R. v. Ct, [1996] 3 S.C.R. 139 at para. 49, 138
D.L.R. (4th) 385.

15 Jeremy Webber, Relations of Force and Relations of Justice: The Emergence of Normative
Community between Colonists and Aboriginal Peoples (1995) 33 Osgoode Hall L.J. 623 at 626
[Webber, Relations of Force]. See also RCAP: Looking Forward, supra note 7 (in general, contacts
between Aboriginal and non-Aboriginal peoples in this part of North America were marked … by a
mixture of mutual curiosity, halting efforts at friendship and some considerable apprehension. Each
side struggled to interpret the behaviour and motives of the other in the light of their respective
cultural traditions at 100). Prior to European arrival, Aboriginal peoples had well-established
procedures to govern inter-societal contact with other Aboriginal peoples (Webber, Relations of
Force, ibid. at 650), but the particular concern here is the process of norm formation that occurred
between the Aboriginal and non-Aboriginal societiespreviously alien to one anotherin the period
following contact.

16 This term appears in Webbers work on intercommunity relations, and I adopt it as a convenient
shorthand for the way in which groups cope with living together (Webber, Relations of Force, ibid.
at 626).

B. OLTHUIS COMMUNITY IN THE CONTEXT OF SECTION 35

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societal rule-making process. This is certainly not to assert or imply historical
circumstances of uniform harmony; I am concerned here with the method by which
the groups created a common framework and not with an assessment of the legality or
fairness of any particular event.17 Each groups behaviour in this rule-generating
process was doubtless shaped by its own conception of right. Importantly, however,
the result cannot properly be said to have been dictated by either group: the process
was dialogical, not monological. Accordingly, the resulting scheme of rules is truly
indigenous to the relationship between the Aboriginal and settler societies.18

In early colonial practice and in the absence of any conflict, the respective
Aboriginal and non-Aboriginal groups were generally left unrestrained in their
capacity to assert and live by intra-communal norms.19 The continuation of
indigenous legal systems thus does not rely upon any principle of European law.
Rather, it flows from the central role these systems played in the identities of the
Aboriginal peoples who were unwilling to abandon them.20 Consequently, as

17 Without a doubt, for instance, the rules that were enshrined in the Royal Proclamation (George R.,
Proclamation, 7 October 1763 (3 Geo. III), reprinted in R.S.C. 1985, App. II, No. 1) were not
universally respected, even in those territories to which it clearly applied. See e.g. Bown v. West
(1846), 1 E. & A. 117 at 118-19, 2 U.C. Jur. 675 (U.C. Exec. Council). Discussion here does not
depend on an argument that the rules were honoured in practice, as opposed to their being honoured
in the breach (R. v. Sparrow, [1990] 1 S.C.R. 1075 at 1103, 70 D.L.R. (4th) 385 [Sparrow cited to
S.C.R.]). It is enough that the rules came to be formed, and were recognized as binding.

18 See John Borrows, With or Without You: First Nations Law (in Canada) (1996) 41 McGill L.J.
629 at 634. In Webbers words: The distinctive norms of each society furnished the point of
departure, determining the spirit of interaction, colouring the first interpretations of the others
customs, and shaping the beginnings of a common normative language. But the final product was
above all the result of mutual adaptation … (Relations of Force, supra note 15 at 627).

19 See Worcester, supra note 13 at 546, where Marshall C.J. stated:

[O]ur history furnishes no example, from the first settlement of our country, of any
attempt on the part of the crown to interfere with the internal affairs of the Indians,
farther than to keep out the agents of foreign powers, who, as traders or otherwise,
might seduce them into foreign alliances. The king … never intruded into the interior of
their affairs, or interfered with their self-government, so far as respected themselves
only.

Regardless of the accuracy of Marshall C.J.s view of historys examples, indigenous custom may
continue to play a role, where Aboriginal title is made out, in regulating the land interests of a people
inter se. See Brian Slattery, Understanding Aboriginal Rights (1987) 66 Can. Bar Rev. 727 at 745;
Brent Olthuis, Defrosting Delgamuukw (or How to Reject a Frozen Rights Interpretation of
Aboriginal Title in Canada) (2001) 12 N.J.C.L. 385 at 410-11.

20 See Borrows, Recovering Canada, supra note 13 at 27, where Borrows points out that
Aboriginal systems of law can and do operate, with or without the reception of their principles in
Canadian courtrooms, and implores First Nations to continue to implement indigenous laws in
family, community, and intracommunity disputes. Because of the important role of Aboriginal
agency in ensuring the survival of these legal regimes, any analysis that relies solely on the principle
of continuity in British imperial colonial law as an explicator is deficient. As Macfarlane J.A.
acknowledged in Delgamuukw v. British Columbia: No declaration by this court is required to permit
internal self-regulation in accordance with aboriginal traditions, if the people affected are in

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intercourse between the Aboriginal and non-Aboriginal societies increased, so too did
the need for inter-societal recognition of those internal norms. The 1867 decision in
Connolly v. Woolrich21 provides a signal example.

Connolly concerned the validity, in Lower Canada, of a mariage la faon du
pays conducted under Cree custom in the Athabaska Country, between European fur
trader William Connolly and Susanne, the stepdaughter of a Cree chief.22 Upon the
deaths of those parties, their eldest son, John, sued for his share of the fathers estate.
In order to adjudicate Johns claim, the Quebec courts inquired into the relevant Cree
customary law, which was proven at trial just as one would prove foreign law in a
typical private international law matter.23

Connolly illustrates at least three points of importance to the present discussion:
the resilience of the Cree marriage regime; the adjustments European traders who
lived among and intermarried with the Cree people made to this regime; and the
corresponding need for the newcomers courts to develop a method to recognize
Aboriginal lawsto interpret them and to assign them corresponding force under the
legal regime applicable in the courtswhen these were squarely raised in disputes
before them.24 This latter point is analogous to the process that unfolds when modern
Aboriginal rights are engaged, for instance, in opposition to fish and game legislation.
In essence, the task for todays court is to interpret the Aboriginal custom, to
determine whether or not the legislative provision at issue infringes this custom, and,
if so, to decide how the infringement is to be resolved. The third prong of the

agreement. But if any conflict between the exercise of such aboriginal traditions and any law of the
province or Canada should arise the question can be litigated ((1993), 104 D.L.R. (4th) 470 at 518,
[1993] 5 W.W.R. 97 (B.C.C.A.)).

21 (1867), 17 R.J.R.Q. 75, 1 C.N.L.C. 70 (Sup. Ct.) [Connolly, cited to R.J.R.Q.], affd (sub nom.

Johnstone c. Connolly) (1869), 17 R.J.R.Q. 266, 1 C.N.L.C. 151 (Q.B.).

22 Apparently, Susannes biological father was French-Canadian: Canada, Report of the Royal
Commission on Aboriginal Peoples: Restructuring the Relationship, vol. 2 (Ottawa: Supply and
Services Canada, 1996) [RCAP: Restructuring the Relationship] at 186.

23 The reported judgment of Monk J., supra note 21, contains a detailed review of the testimony of
many European fur traders and missionaries who claimed, through observation and engagement over
time, a familiarity with the marriage customs of the North Western natives.

24 According to this view, as discussed supra note 20, any element of continuity owes its existence
largely to factual circumstance and the continued strength of indigenous societies, rather than the
operation of British positive law. In any event, the term continuity is misleading. When colonial
courts or officials were called upon to adjudicate a matter according to Aboriginal law, they made an
effort to comprehend and apply the same. In so doing, they inevitably engaged in a process of
translation and re-expression (Jeremy Webber, Beyond Regret: Mabos Implications for Australian
Constitutionalism in Duncan Ivison, Paul Patton & Will Sanders, eds., Political Theory and the
Rights of Indigenous Peoples (Cambridge: Cambridge University Press, 2000) 60 at 64 [Webber,
Beyond Regret]). On occasion, this proved so challenging a task as to drive a court to search for
whatever evidence might locate the same legal result in the more comfortable confines of Anglo-
Canadian law instead. See Robb v. Robb (1891), 20 O.R. 591, 3 C.N.L.C. 613 (H. Ct. J. (Com. Pleas
Div.)).

B. OLTHUIS COMMUNITY IN THE CONTEXT OF SECTION 35

2009]

Sparrow infringement test25 provides a fine illustration of this, inasmuch as it
acknowledges that Aboriginal rights are not uniquely concerned with priority over
land and resources. Indeed, an infringement may also occur where the impugned
legislative scheme den[ies] to the holders of the right their preferred means of
exercising that right.26 In other words, section 35 may be engaged where there is a
clash between the types of conduct that are permitted under Aboriginal and non-
Aboriginal normative systems (for example, in their respective approaches to
resource regulation). Here too, through repeated engagement and adjustment, the
doctrine of Aboriginal rights serves to mediate between the diverse customs of the
respective societies.

In sum, the doctrine of Aboriginal rights requires, as a condition precedent to its
application, the existence of competing conceptions of the appropriate normative
order.27 As a practical matter, such a divergence can only occur in an inter-societal
context. This explains why section 35 rights are by nature collective: the focus is
rightly on Aboriginal peoples (groups), and not Aboriginal persons (individuals).28

B. Five Attendant Observations

With the foregoing background, a number of subsidiary conclusions follow. Some
of these challenge aspects of prevailing Aboriginal law orthodoxy. I present five
observations here and will elaborate further in the remainder of this paper.

25 Sparrow, supra note 17 at 1112. Sparrow concerned the Musqueam Indian Bands Indian Food
Fishing Licence and, more specifically, whether or not the net length restriction contained therein was
constitutionally deficient. The Court did not decide the issue on the record, but remitted it back to trial.

26 Ibid.
27 Again, if Aboriginal fishing or hunting customs mirrored exactly those of non-Aboriginal society,
or had the Cree marriage customs in Connolly (supra note 21) overlapped perfectly with those of
Catholic Quebec, the doctrine of Aboriginal rights would be superfluous. In recognition of this point,
see Cheslatta Carrier Nation v. British Columbia, where, holding that the plaintiffs suit for a
declaration of Aboriginal fishing rights ought to be struck for a lack of live controversy, Newbury
J.A. stated that Aboriginal rights cannot be properly defined separately from the limitation of those
rights. The latter are needed to refine and ultimately define the former (2000 BCCA 539, 193 D.L.R.
(4th) 344 at para. 18, 80 B.C.L.R. (3d) 212).

28 Notwithstanding that many Aboriginal rights can be exercised by individuals, there is no doubt
that they are collective rights, exercisable as such because of the individuals membership in the
rights-holding group. See e.g. R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483 at para. 4, 294 D.L.R.
(4th) 1, McLachlin C.J.C. and Abella J. [Kapp]. In the s. 35 context (as discussed below), an
Aboriginal person must be understood to mean a member of an Aboriginal collectivity, and not the
individuals racial or ancestral background.

In this connection I note that many Ontario cases subsequent to Powley (supra note 2) have
rejected Metis rights claims because the accused failed to show a relevant rights-bearing community:
R. v. Manners, [2005] O.J. No. 2214 (QL) (Ct. J.); R. v. Burns, [2005] O.J. No. 2215 (Ct. J.) (QL);
Ontario (Ministry of Natural Resources) v. Guay, [2006] O.J. No. 1165 (Ct. J.) (QL) [Guay]; Ontario
(Ministry of Natural Resources) v. Fortin, [2006] O.J. No. 1166 (Ct. J.) (QL) [Fortin]; R. v. Beaudry,
2006 ONCJ 59, 69 W.C.B. (2d) 566; R. v. Gagnon, [2006] O.J. No. 4738 (Ct. J.) (QL).

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[Vol. 54

1. The Error of Focusing on Particular Customs and the Effect of

Outside Influences

One cannot overemphasize the important distinction between, on one hand, the
particular manifestations of a groups social character at a given point in time and, on
the other hand, the vital and adaptive societal whole. The precise character of any
groups normative order may (indeed, almost certainly will) change over time.
Sometimes it may change profoundly. A society, after all, is inherently protean. It is
also reactive, to both internal and external stimuli. The fact that certain changes
may have been precipitated or influenced by another groups norms or practices does
not in itself speak against the continued existence of the first groups distinctive
normative system. Indeed, it speaks to its vitality.
On account of this, it makes little sense for an inquiry into Aboriginal rights to
focus upon particular customs that may have prevailed in the Aboriginal collectivity
at any historical moment. Nor is it obvious why changes instigated by an outside
catalyst ought to be treated differently from those changes that originate from within
the group itself. It is the existence of competing normative orders, rather than their
content at a given point in time, that matters. Neither the Aboriginal nor the non-
Aboriginal collectivity should be presumed or expected to have remained static since
that given time or, for that matter, to have been static prior to that time.

2. The Fallacy of the Essential Aboriginal Quality

As a consequence of the first observation, there is no basis upon which to require
that a right exhibit some essential Aboriginal quality to achieve section 35
protection. In principle, it should be enough to establish that the right arises from the
need to reconcile norms of non-Aboriginal and Aboriginal peoples. I shall return to
this topic in the concluding section of this paper.

3. Contact Is an Inappropriate Defining Date

It also follows that there is no justification for privileging the date of contact as
the time at which a specific set of Aboriginal rights arose.29 Indeed, it is not merely the
fact of indigenous occupation prior to contact that explains the doctrine of Aboriginal
rights. As Justice Judson acknowledged in Calder: [T]he fact is that when the settlers
came, the Indians were there, organized in societies and occupying the land as their
forefathers had done for centuries. This is what Indian title means … 30 His now-
famous statement recognized not only the Aboriginal peoples prior occupation of

29 Lamer C.J.C. identified contact as the relevant time frame in R. v. Van der Peet, [1996] 2 S.C.R.

507 at paras. 60-61, 137 D.L.R. (4th) 289 [Van der Peet cited to S.C.R.].

30 Calder v. British Columbia (A.G.), [1973] S.C.R. 313 at 328, 34 D.L.R. (3d) 145. This statement
was later paraphrased in Van der Peet (ibid. at para. 30) and identified as the basis for all Aboriginal
rights (not only title).

B. OLTHUIS COMMUNITY IN THE CONTEXT OF SECTION 35

2009]

what is now Canada but also, crucially, that these peoples presented distinct
normative orders with which the newcomers had to reconcile.
The fact that European arrival and concepts such as time immemorial31 are

often used as reference points must not obscure the inquiry: the notion of effective
European control32 would seem to capture much more accurately and pragmatically
the nature of Aboriginal rights, since it places emphasis on the period in which
substantial normative conflict was liable to arise.

4. Metis Non-exceptionality

With respect to the rationale for constitutional protection, the situation of the
Metis is not, as is sometimes suggested,33 entirely dissimilar from that of the other
Aboriginal peoples. The Metis emerged as a distinctive people in what became the
Canadian West,34 living according to their own distinctive customs prior to large-scale
European settlement. The eventual arrival of greater numbers of non-Aboriginal
persons conflicted with the Metis way of life, motivating the Metis to set up a
provisional government in 1869 and to negotiate with Ottawa for the Red River areas
entry into Canada. In a manner roughly analogous to the treaty-making process, the
Metis traded their military authority for the promise of a land base in the new
province.35
Given such important commonalities with the other Aboriginal peoples, there is
no reason in principle why the unique ethnogenesis of the Metis people ought to

31 See e.g. Sparrow, supra note 17 at 1084, 1095.
32 See Powley, supra note 2 at 219.
33 See e.g. Powley, ibid. at para. 17; Van der Peet, supra note 29 at para. 67; Schwartz, supra note 7
at 216, 247; Patrick Macklem, Indigenous Difference and the Constitution of Canada (Toronto:
University of Toronto Press, 2001) at 9. The presumption of Metis exceptionality, which may exhibit
itself in skepticism towards Metis claims, may also mask an impoverished view of Aboriginality.

34 Paul L.A.H. Chartrand provides a pithy synopsis of the emergence of the Red River Metis as a
new people in Aboriginal Rights: The Dispossession of the Mtis (1991) 29 Osgoode Hall L.J. 457
[Chartrand, Dispossession] at 460-62. Opinion varies as to when the Metis emerged as the new
nation, and it is doubtful that a precise answer exists. See also Larry N. Chartrand, The Definition of
Mtis Peoples in Section 35(2) of the Constitution Act, 1982 (2004) 67 Sask. L. Rev. 209 at 218-21
(placing the birth of Red River Metis identity between 1770 and 1812).

35 For a summary of the events leading up to and following the Manitoba Act, 1870, S.C. 1870, c. 3,
s. 31, reprinted in R.S.C. 1985, App. II, No. 8, see Report of the Royal Commission on Aboriginal
Peoples: Perspectives and Realities, vol. 4 (Ottawa: Supply and Services Canada, 1996) at 222-27.
Recently, in Manitoba Mtis Federation v. Canada (A.G.), 2007 MBQB 293, [2008] 4 W.W.R. 402,
223 Man. R. (2d) 42, the Court dismissed a claim for declaratory relief concerning Canadas asserted
failure to fulfill its obligations under the Manitoba Act, 1870. (The case had previously been to the
Supreme Court on an interlocutory issue: (sub nom. Dumont v. Canada (A.G.)), [1990] 1 S.C.R. 279,
67 D.L.R. (4th) 159).)

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preclude a theory of Aboriginal rights that encompasses all of the peoples mentioned
in section 35(2).36

[Vol. 54

5. Aboriginal Agency

Finally, the inter-societal origins of Aboriginal rights bring particular emphasis to
the indispensable role and continual engagement of Aboriginal agency. The
participation of Aboriginal peoples in the development of the law was not limited to
the initial formation of the doctrine; it included its survival and subsequent
enshrinement in the constitution. In spite of the often oppressive legislation and
policies of successive governments, the Aboriginal peoples of Canada continue to
assert and live according to distinctive legal systems that represent a fundamental
aspect of identity for many of their members. In addition, collective resistance to
initiatives such as the Trudeau governments white paper,37 along with court
challenges such as Calder, helped to regenerate a once-moribund Aboriginal/non-
Aboriginal dialogue, ultimately leading to the inclusion of Aboriginal rights in the
Constitution Act, 1982.
Acknowledging this history assists us in understanding section 35 as a promise
a dealwhereby the non-Aboriginal population of Canada has undertaken to
restructure its relationship with the Aboriginal peoples. This does not involve a
theoretical social contract, but rather an acceptance that the relationship going
forward will be better served by a return to the principles that animated the modus
vivendi of the past.38 [W]e are, in the pithy words of Chief Justice Lamer, all here

36 For instance, the various First Nations have vastly differing cultures, histories, and experiences in
dealing with the newcomers, but this has not presented an obstacle to the laying out of general
principles of Aboriginal law. The non-exceptionality of the Metis is discussed squarely in Catherine
Bell, Metis Constitutional Rights in Section 35(1) (1997) 36 Alta. L. Rev. 180; Albert Peeling &
Paul L.A.H. Chartrand, Sovereignty, Liberty, and the Legal Order of the Freemen (Otipahemsuuk):
Towards a Constitutional Theory of Mtis Self-Government (2004) 67 Sask. L. Rev. 339. See also
Andrew Gray, The Indigenous Movement in Asia in R.H. Barnes, Andrew Gray & Benedict
Kingsbury, eds., Indigenous Peoples in Asia (Ann Arbor, Mich.: Association for Asian Studies, 1995)
35 at 37, 39 (discussing indigenousness and priority in the international context).

37 Minister of Indian Affairs and Northern Development, Statement of the Government of Canada
on Indian Policy, 1969 (Ottawa: Queens Printer, 1969). For examples of resistance, see Harold
Cardinal, The Unjust Society: The Tragedy of Canadas Indians (Edmonton: M.G. Hurtig, 1969);
Indian Association of Alberta, Citizens Plus; A Presentation by the Indian Chiefs of Alberta to Right
Honourable P. E. Trudeau, Prime Minister, and the Government of Canada (red paper) (Edmonton:
The Association, 1970).

38 With respect to the more general notion that a better justice might be achieved through a return to
the past, see Jeremy Webber, The Jurisprudence of Regret: The Search for Standards of Justice in
Mabo (1995) 17 Sydney L. Rev. 5; Webber, Beyond Regret, supra note 24. Webbers concept of
regret, which he develops primarily in the Australian Aboriginal context, does not imply a one-sided
benevolence, but rather describes a processspurred by the persistence and reassertion of indigenous
peoples and autonomous indigenous legal ordersin which we [collectively] reform our sense of

B. OLTHUIS COMMUNITY IN THE CONTEXT OF SECTION 35

2009]

to stay.39 The Canadian state acknowledges this in its pledge to honour the inter-
societal norms that facilitated the settlement and foundation of this country.40

C. The Matter of Inquiry: A Summary

In brief, Aboriginal rights are rooted in the reality that the indigenous peoples and
non-indigenous Canadian society are bound together in a special relationship. This
relationship may be described as political, jurisdictional, or even federal. Each
of these terms underscores the fundamental point that section 35 singles out
collectivities because of their connection to the normative orders that preceded those
of the European settler communities. The doctrine of Aboriginal rights in this way
serves to mediate the parties separate claims, interests and ambitions.41

The word Aboriginal, then, should not be taken to speak to the specific content
of any given norm (on a micro level), but rather it must be understood as a
reference to social and legal systems (from a macro perspective) that maintained
their viability in the face of those that were subsequently introduced and came to
dominate in Canadian society. In the following section, I consider how the law ought
to approach the task of identifying which groups fit this conception of Aboriginality.

II. Possible Approaches to Community
What qualities must a collectivity exhibit in order to be recognized under
section 35? To get at this fundamental issue, and to enable us to reconsider what the
constitutional promise ought to entail, we need to inquire critically into the competing
conceptions of Aboriginal groupness that may obtain in Canadian law.

A. Statutory or Executive Recognition

One extreme positionthat community is contingent upon governmental
benisoncan be easily dismissed. I allude here to the simple enumeration, by
Parliament or the executive, of specific groups as holders of section 35 rights; for

justice in order to overcome what now seems to be a fundamental defect in our societys constitution
(Jurisprudence of Regret, ibid. at 11 ^×.).

39 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 at para. 186, 153 D.L.R. (4th) 193

[Delgamuukw cited to S.C.R.].

40 Among other things, s. 35 ensures that the common law rules are no longer presumptively subject
to statutory override. See Webber, Relations of Force, supra note 15 at 654-55; Brian Slattery, The
Organic Constitution: Aboriginal Peoples and the Evolution of Canada (1996) 34 Osgoode Hall L.J.
101 at 108-12.

41 Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3
S.C.R. 388 at para. 1, 259 D.L.R. (4th) 610 [Mikisew]. In Mikisew, Binnie J. began his judgment with
the lucid observation: The fundamental objective of the modern law of aboriginal and treaty rights is
the reconciliation of aboriginal peoples and non-aboriginal peoples and their respective claims,
interests and ambitions.

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instance, as Parliament authorizes the Governor-in-Council to declare certain groups
subject to the Indian Act (a process which is itself mired in controversy).42
Admittedly, this is not the only (or even the most obvious) way in which a statutory
recognition scheme might function. In Part II.C, I shall discuss a more ostensibly
objective approach, which would cover, for example, a legislative attempt to set
indicia of community that groups must meet in order to be recognized.

[Vol. 54

1. Constitutional Invalidity

At the outset, it bears reminding that as a matter of law, pure statutory recognition
would violate the elementary principle of constitutional law that prohibits Parliament
from controlling the meaning of terms used in the constitution. Prior to the 1982
patriation, the federal power to legislate with respect to Indians, and Lands reserved
for the Indians43 did not carry with it the capacity to define (i.e., limit) the scope of
these terms, because the BNA Act, being a statute of the Parliament of the United
Kingdom, was only susceptible to amendment by that body. The Canadian Parliament
remained competent to create whatever legislative categories it wished for the
purposes of implementing specific governmental programs,44 but it could not

42 Indian Act, supra note 8, ss. 2(1) (s.v. band(c)), 4(2), 6(1)(b). This power was exercised, for
example, in the Order Declaring a Body of Indians at Conne River, Newfoundland to be a Band of
Indians for Purposes of the Act, S.O.R./84-501 (now Miawpukek Band Order, S.O.R./89-533) in
respect of a Mikmaq group that had established itself in Newfoundland and that was in the process of
suing the federal government for a declaration that it should be recognized as a band. (In Joe v.
Canada, [1986] 2 S.C.R. 145, 69 N.R. 318, affg (sub nom. Conne River Band v. Canada) (1983), 49
N.R. 198, [1984] 1 C.N.L.R. 96 (F.C.A.), it was held that the Federal Court had no jurisdiction to hear
the same groups application for a second declaration, to the effect that its lands constituted an Indian
reserve.) Contrarily, the power to declare a group subject to the Indian Act was pointedly not exercised
in respect of the Namaygoosisagagun/Collins First Nation, located near Lake Nipigon in north-
western Ontario, which has requested recognition.

43 Constitution Act, 1867, supra note 5 at s. 91(24).
44 On this point, see generally Douglas E. Sanders, Aboriginal Peoples and the Constitution
(1981) 19 Alta. L. Rev. 410 at 421; Peter W. Hogg, Constitutional Law of Canada, vol. 1, looseleaf
(Scarborough: Thomson Carswell, 2007) at 28-4. The latter puts it starkly: Parliament … is, of course,
under no obligation to legislate to the full limit of its authority … This may be generally true, but
subsequent to 1982 must be accompanied by at least one caveat: once Parliament does exercise its
legislative power, it cannot do so in an unconstitutionally under-inclusive manner (compare Vriend v.
Alberta, [1998] 1 S.C.R. 493, 212 A.R. 237 and Lovelace v. Ontario, 2000 SCC 37, [2000] 1 S.C.R.
950, 188 D.L.R. (4th) 193), or indeed in any discriminatory manner that offends s. 15(1) of the
Charter (Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, 173
D.L.R. (4th) 1 [Corbiere cited to S.C.R.]). Moreover, it could be the case that Parliament is bound by
certain duties to legislate in light of s. 35 and recent positive obligations that the Court has placed on
governments. See Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3
S.C.R. 511, 245 D.L.R. (4th) 33 [Haida]; Taku River Tlingit First Nation v. British Columbia (Project
Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550, 245 D.L.R. (4th) 193 [Taku]; Mikisew,
supra note 41.

B. OLTHUIS COMMUNITY IN THE CONTEXT OF SECTION 35

2009]

accomplish what would effectively be a unilateral amendment of the imperial statute
by, for example, disclaiming its jurisdiction with respect to the Inuit people.45
All the more, since the recognition and affirmation of Aboriginal and treaty rights
in the Constitution Act, 1982, it clearly does not lie in any legislatures hands to
reserve these rights to select groups. Any such attempt would be invalid.46 Indeed, it
would be utterly incompatible with the obligations inherent in section 35. Moreover,
as discussed above, the doctrine of Aboriginal rights was born and finds continued
sustenance in the reconciliation of inter-societal normative difference. This is not
something that one party to the relationship can unilaterally will out of existence, by
legislative fiat or other means.

statutory recognition.

This raises a related question of how to account for the historical effects of

2. Accounting for the Historical Effects of the Indian Act

Aboriginal communities (unlike Indian Act bands) existed long prior to European
arrival, and it was the former whose interactions with the newcomers gave rise to the
doctrine of Aboriginal rights. This fact has prompted one judge to suggest that a
distinction must be made between an Aboriginal community to which there may be
Aboriginal entitlements and a Band and that [t]he scheme of the Indian Act may be
said to be in conflict with some Aboriginal rights of some communities.47 The pillars
of that argument would appear relatively solid: the various indigenous nations each
held an inherent right to self-define and set their own rules of membership. The
operation of the successive Indian Acts has not extinguished this right,48 but it has
clearly and unjustifiably infringed it.49 Taken to an extreme, the argument might be

45 Bearing in mind that s. 91(24) was interpreted to include the Inuit in Re Eskimos (supra note 6).
Arguably, and for the same reason, Parliament should not be permitted to restrict its jurisdiction to
certain First Nations via the Indian Act (supra note 8). But see Canada (A.G.) v. Lavell (1973), [1974]
S.C.R. 1349 at 1359, 38 D.L.R. (3d) 481, Ritchie J.

46 Section 52(1) declares the constitution of Canada to be the supreme law and states that any
law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of
no force or effect (supra note 4). It is thus even more eminently clear since 1982 that Parliament has
no competence to define terms used in the constitution. See Kent McNeil, The Constitutional Rights
of the Aboriginal Peoples of Canada (1982) 4 Sup. Ct. L. Rev. 255 at 261; Kent McNeil, The
Constitution Act, 1982, Sections 25 and 35 [1988] 1 C.N.L.R. 1 at 4.

47 Perron v. Canada (A.G.) (2003), 105 C.R.R. (2d) 92, 32 C.P.C. (5th) 165 at para. 22 (Ont. Sup. Ct.

J.), C. Campbell J.

48 Sparrow holds that an existing aboriginal right cannot be read so as to incorporate the specific
manner in which it was regulated before 1982 (supra note 17 at 1091). The Indian Act legislation,
despite its long pedigree, has not extinguished the inherent right because it exhibits no clear and plain
intention to do so (ibid. at 1099).

49 The history of the Indian Act (supra note 8) is well-known. Its effects, of course, continue.
Although a s. 15 rather than a s. 35 case, the recent decision in McIvor v. Canada (Registrar, Indian
and Northern Affairs) is noteworthy for its conclusion that the Indian Act is constitutionally infirm

[Vol. 54

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said to support the position that Indian Act bands, as statutory creations, are not
entities that are capable of exercising Aboriginal rights.50
However, we should guard against a peremptory denial of history. One has to
accept that the Indian Act has had a significant impact upon the present constitution
of many collectivities. For example, the statutory band structure may have entirely
superseded a groups traditional institutions. In instances like this, it is exceedingly
difficult to identify a modern successor to the original community apart from the
Indian Act band. As deplorable as these legislative impositions have often been, the
changes they have effected may only be reversible at great cost and upheaval to the
Aboriginal communities themselves.51 In this connection, we ought not to imply that
there existed a pristine form of pre-contact Aboriginality that, once lost through
legislative transformation, forecloses the recognition of section 35 rights.

a. Oregon Jack Creek

Consider the Oregon Jack Creek Indian Band v. C.N.R. litigation.52 In that case,

the chiefs of numerous bands in the British Columbia interior brought a
representative action to restrain the defendant railway company from double
tracking portions of its line along the Thompson River. The chiefs relied in part upon
claims of Aboriginal title. When the railway challenged the chiefs authority to bring
the action on behalf of the band members, they sought to amend their pleadings to
claim relief not only on behalf of the members of the bands, but also on behalf of the
members of the three nations that occupied the river system when the Crown first
asserted sovereignty over the province.53 The motions judges refusal to grant the
amendments was overturned on appeal. For the court, Justice Macfarlane wrote:

(2007 BCSC 827, [2007] 3 C.N.L.R. 72). An appeal in this case was heard and the judgment varied:
2009 BCCA 153.

50 This is seemingly what Steele J. meant when he stated in Ontario (A.G.) v. Bear Island
Foundation that the defendants claim relates to aboriginal rights of the group that is entitled to them,
that is, [the Teme-agama Anishnabay Tribe], which it is alleged is a much larger group than the
registered band. … In this case, if there are valid aboriginal claims, then they belong to the [Teme-
agama Anishnabay Tribe] and not the registered band ((1984) 49 O.R. (2d) 353 at 365, 15 D.L.R.
(4th) 321 (H. Ct. J.) [Bear Island cited to O.R.]). Steele J.s judgment was upheld on two further
appeals: Ontario (A.G.) v. Bear Island Foundation (1989), 68 O.R. (2d) 394, 58 D.L.R. (4th) 117
(C.A.), affd [1991] 2 S.C.R. 570, 83 D.L.R. (4th) 381.

51 This issue lurks behind the Paradox of Indian Act Reform, as discussed in RCAP: Looking

Forward, supra note 7 at 258-59.

52 Oregon Jack Creek Indian Band v. Canadian National Railway, [1988] B.C.J. No. 879 (QL)
(S.C.), supplementary reasons at [1988] B.C.J. No. 3062 (QL) (S.C.), revd (1989), 34 B.C.L.R. (2d)
344, 56 D.L.R. (4th) 404 (C.A.), revd [1989] 2 S.C.R. 1069, 63 D.L.R. (4th) 607, motion for
rehearing dismissed [1990] 1 S.C.R. 117, 68 D.L.R. (4th) 478 [Oregon Jack].

53 For example, the amended pleadings would have identified the first plaintiff as claiming on behalf
of the members of the Oregon Jack Creek Band and all other members of the Nlakapamux Nation
(ibid.).

2009]

B. OLTHUIS COMMUNITY IN THE CONTEXT OF SECTION 35

In my opinion, the date at which it must be shown that there was an organized
society occupying the specific territory over which the plaintiffs, as descendants
of the members of that society, now assert aboriginal title is the date at which
sovereignty was asserted by the Europeans. The society need not have been
what we now regard as a legal entity, and the descendants of that society need
not, in order to have status to bring an action, prove that such a legal entity
now exists.54

This portion of the Oregon Jack case would support the notion that a group,

which happens to be an Indian Act band, ought not to be precluded from asserting and
exercising the section 35 rights of its pre-Indian Act predecessor(s).55 It follows
paradoxically, but in my view not contradictorilythat an Indian Act band might
invoke its status under the legislation as the foundation for its ability to exercise
constitutional rights, then employ those rights in an attack on the constitutionality of
that same legislation. Such an instance has in fact occurred.

b. Sawridge Band

Shortly after the adoption of Bill C-31,56 representative actions were brought on

behalf of six bands in Alberta seeking a declaration that the legislation infringed
section 35 and was of no force or effect.57 The Crown sought to strike the statement of
claim, among other reasons, for the fact that the individual plaintiffs could not sue on
behalf of all the members of the various bands as statutorily defined. That is, by virtue

54 Ibid. at 352 [(C.A.) cited to B.C.L.R.] [emphasis added]. Here, Macfarlane J.A. adopted the
courts reasoning in Baker Lake (Hamlet of) v. Canada (Minister of Indian Affairs and Northern
Development) (1979), [1980] 1 F.C. 518 at 557-59, 107 D.L.R. (3d) 513 (T.D.). In that case, after
holding that Aboriginal title claimants had to prove [t]hat they and their ancestors were members of
an organized society (ibid. at 557) that occupied the claimed lands prior to asserted English
sovereignty, Mahoney J. held:

The organized society of the Caribou Eskimos, such as it was, and it was sufficient to
serve them, did not change significantly from well before Englands assertion of
sovereignty over the barren lands until their settlement. For the most part, the ancestors
of the individual plaintiffs were members of that society; many of them were
themselves members of it. That their society has materially changed in recent years is
of no relevance (ibid. at 559 [emphasis added]).

Accordingly, in Oregon Jack, Macfarlane J.A. held that the nations were capable of definition in a
sufficiently clear manner so as to enable the chiefs representative action: [I]t is sufficient that the
Indians be able to prove that there was an organized society occupying the specific territory over
which the Indians, as descendants of the members of that society, now assert aboriginal title based on
the title that existed at the date that sovereignty was asserted by the Europeans (ibid. at 353 [(C.A.)
cited to B.C.L.R.]).

55 It should be noted that the Supreme Court of Canada, in dismissing the motion for a rehearing
(ibid. at 119 [cited to S.C.R.]), characterized this portion of the Court of Appeals judgment as obiter.

56 Bill C-31, An Act to amend the Indian Act, 1st Sess., 33rd Parl., 1985.
57 Twinn v. Canada (1986), [1987] 2 F.C. 450, 6 F.T.R. 138.

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of the Bill C-31 changes, the bands included the very persons whose band
membership the plaintiffs sought to challenge. Justice Strayer held:

[Vol. 54

[A]boriginal rights are communal rights and it is therefore appropriate that
those persons who claim to belong to the relevant community to which the right
adheres should be joined as plaintiffs in an action to vindicate those rights. It is
fundamental to the case of the plaintiffs that the aboriginal right in question
herethe right of each band to control its own membershipis one which
adheres to the group as it was constituted before the coming into force of the
amendments on April 17, 1985. The plaintiffs are certainly entitled to frame
their action on that basis and it will remain to be seen whether they can make
out their case in fact or in law. If they are able to do so, it will emerge that the
bands as they describe them in the amended statement of claim are the legal
bands.58

There is no incoherence in acknowledging the historical role of legislation in the
construction of the modern community while simultaneously encouraging the modern
groups ability to escape from the imposed regime.59 What is of utmost importance for
the purposes of section 35 is the groups ongoing role in providing a normative
framework to its members. This cannot merely be legislated into or out of existence.

B. Unilateral Declaration by the Aboriginal Community

Let us consider, then, the diametrically opposed situation, in which a groups
assertion of rights-holding status is taken as sufficient to prove the same. Under this
view, if a group were to declare its status and insist on corresponding recognition, it
would be improper for persons outside the professed collectivity to pass judgment or,
for that matter, to do anything but accede to the demand for recognition. In some

58 Ibid. at 462-63 [references omitted]. More than twenty years after it was commenced, the
Sawridge Band claim was recently dismissed by the Federal Court a second time. (A 1995 trial
decision dismissing the action was overturned on appeal for reasonable apprehension of bias:
Sawridge Band v. Canada [1997] 3 F.C. 580, 215 N.R. 133 (C.A.), revg (1995), [1996] 1 F.C. 3,
[1995] 4 C.N.L.R. 121 (T.D.) [Sawridge Band]). The new trial, it appears, did not proceed smoothly.
The Band, after calling eight lay witnesses, brought an unsuccessful mistrial motion: 2007 FC 657,
307 F.T.R. 163. The Band then chose to close its case. The trial judge, apparently with the agreement
of the parties, granted the Crowns motion for non-suit and ordered Band to pay over $1 million in
costs on account of its conduct during the litigation: 2008 FC 267, 320 F.T.R. 166 at para. 296. The
Band has filed a Notice of Appeal.

59 Canadian courts now accept that Indian Act bands are capable of suing and being sued in a
number of civil contexts, although, in accordance with the previous understanding of bands as
unincorporated associations, representative actions remain common. With respect to claims for
Aboriginal and treaty rights, the notion that bands are appropriate rights-holding entities finds support
in e.g. Corbiere (supra note 44 at paras. 75-78), where LHeureux-Dub J., concurring, canvassed a
number of the most significant aspects of the Indian Act regime, adding that as a practical matter,
representation of Aboriginal peoples in processes such as land claims and self-government
negotiations often takes place through the structure of Indian Act bands (ibid. at para. 78). The same
point was essentially made by McLachlin and Bastarache JJ. (ibid. at para. 17), for the majority.

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respects, this may be the logical extension of the proposition that one ought to defer
to a groups assessment of its membership. Here, however, deference purports to
occur one step prior. Instead of manifesting itself as an assertion of control over
membership, the groups right to define itself is a call on behalf of would-be members
for recognition as a communitywith all of the resulting appurtenances.60
A declaration of rights-holding status will often provide cogent evidence that the
group in question does in fact merit the designation. Without having to adopt the view
that this type of subjective manifestation is sufficient to form the very raison dtre of
the group, one must nevertheless take notice that the individuals concerned have
exhibited a strong belief that, for reasons that lie behind the assertion, they form a
particular and unique collective. I include in this discussion the situation in which
persons come together in a modern representative association, such as the Ontario
Mtis and Aboriginal Association (OMAA) and the Mtis Nation of Ontario (MNO)
implicated in Powley.61 Such organizations do perform a significant declaratory
function. As the various courts ruled in the Powley proceedings, while their existence
might not by itself provide sufficient proof of community, their establishmentand
the level of importance that their members attribute to themcan give a strong
indication of the sort of subjective connections that sustain important social groups.

In principle, a declaration ought to be given a lot of weight. Indeed, giving effect
to an express demand for recognition might even be the only way to avoid unduly
colouring the matter with the vagaries of power. I do agree (and argue below) that
community must have an intrinsically subjective aspect. But when it comes down to
it, the notion that a group could unilaterally declare its rights-holding status, and that
this alone would bind others to treat it accordingly, involves misplaced deference.
There are, in my view, at least two basic weaknesses in such an approach. First, it

60 This is not to suggest that it is always easy to maintain a distinction between the two; there is
something of a chicken and egg syndrome operating here. For instance, testifying at the Powley trial
as to the existence of a Metis community in Sault Ste. Marie, Tony Belcourt stated: [O]ur right as a
people is the right to define who we are (Trial Transcript, vol. 1, of R. v. Powley (27 April 1998),
Sault Ste. Marie 3220 (Ont. Ct. (Prov. Div.)) at 73). In context, this might suggest: (1) that the Metis
Nation has an inherent right to describe its own geographical extent; (2) that the Metis Nation has an
inherent right to govern its membership; or (3) that the members of the Sault Ste. Marie community
have an inherent right to assert their own peoplehood. Likewise, the issues can collapse together in the
face of definitional ambiguities. See also Benedict Kingsbury, Indigenous Peoples as an
International Legal Concept in Barnes, Gray & Kingsbury, supra note 36, 13 at 26-28 (discussing
similar ambiguities in self-definition in the international context).

61 The OMAA is affiliated with the Congress of Aboriginal Peoples (CAP), and the MNO with the
Mtis National Council. While a rights claimant surely cannot rely solely on his or her membership in
an organization as evidence of belonging to a rights-bearing people (R. v. Norton, 2005 SKPC 46, 263
Sask. R. 128, [2005] 3 C.N.L.R. 268), the existence of the organization hints at the presence of a
critical mass of persons sufficient to form a community. See also Labrador Mtis Nation v.
Newfoundland and Labrador (Minister of Transportation and Works), 2007 NLCA 75, 272 Nfld. &
P.E.I.R. 178, 288 D.L.R. (4th) 641 [Labrador Mtis Nation]; Manitoba Mtis Federation v. Canada
(A.G.), supra note 35.

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provides no control over, and may in fact encourage, questionable claims. Second, it
places too much stock in the speaker and is thus too subjectivisttoo reliant upon the
authority of the declarant.

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1. The Effect of Questionable Claims

There are two dimensions to the first concern: one is symbolic and the other is
material. Consideration of certain events following the 1999 Supreme Court of
Canada decision in Marshall will help to illustrate both dimensions.62 In that case, the
Court recognized a limited Mikmaq treaty right to trade in the products of traditional
fishing and hunting activities. When, in the wake of the judgment, Mikmaq persons
in places like Esgenopetitj (Burnt Church, New Brunswick) attempted to start up
lobster fisheries during a period that was closed to non-Aboriginals, they were met
with hostility. The situation descended into pandemonium, beginning with the
destruction of property and continuing with threatsand then actual instancesof
physical violence.

In the midst of all this, a number of ostensibly Aboriginal organizations appeared
in New Brunswick, issuing cards that professed to grant membership in rights-bearing
communities.63 Before long, persons hunting on the authority of these cards were
apprehended by provincial conservation officers, with many of these cases
proceeding to trial.64 Generally, the accused individuals were able to provide evidence
of self-identification as Aboriginal persons (although recent), Aboriginal ancestry
(although distant), and community acceptance (by the card-granting body). In none of
the cases, however, did the courts find that the alleged communities actually had the
claimed section 35(2) status.

62 R. v. Marshall, [1999] 3 S.C.R. 456, 178 N.S.R. (2d) 201.
63 Prior to the R. v. Marshall decision, there already existed in Nova Scotia and New Brunswick: the
Union of Nova Scotia Indians (representing Mikmaq persons registered under the Indian Act, supra
note 8); the Native Council of Nova Scotia (representing Mikmaq/Aboriginal persons living off
reserve, whether registrable or not, and affiliated with CAP); the Union of New Brunswick Indians
(representing Mikmaq and Maliseet registered under the Indian Act); and the New Brunswick
Aboriginal Peoples Council (representing off-reserve persons of Aboriginal ancestry, affiliated with
CAP). Some of the new groups included the Acadian Mtis-Indian Nation, the East Coast First People
Alliance, and the Rising Sun Community Restigouche West/Communaut Soleil Levant.

64 R. v. Chiasson, 2001 NBPC 5, 239 N.B.R. (2d) 1, [2002] 2 C.N.L.R. 200, affd 12 March 2002
(Q.B.) [unreported] [Chiasson (No. 1)]; R. v. Castonguay (J.-D.), 2002 NBPC 26, 254 N.B.R. (2d)
213, [2003] 1 C.N.L.R. 177; R. v. Castonguay (R.), 2002 NBPC 1, 257 N.B.R. (2d) 67, [2003] 3
C.N.L.R. 232, affd 2003 NBQB 325, 265 N.B.R. (2d) 105; R. v. Daigle, 2003 NBPC 4, 258 N.B.R.
(2d) 120, affd 2004 NBQB 79, 271 N.B.R. (2d) 382; R. v. Castonguay (D.), 2003 NBPC 16, 271
N.B.R. (2d) 128, affd 6 May 2005 (Q.B.) [unreported], leave to appeal to C.A. denied, 2006 NBCA
43, 298 N.B.R. (2d) 31; R. v. Chiasson, 2004 NBQB 80, 270 N.B.R. (2d) 357, leave to appeal to C.A.
denied and appeal quashed, 2005 NBCA 82, 291 N.B.R. (2d) 156 [R. v. Chiasson (No. 2)]; R. v.
Hopper, 2004 NBPC 7, 275 N.B.R. (2d) 251, affd 2005 NBQB 399, 295 N.B.R. (2d) 21, affd 2008
NBCA 42, 331 N.B.R. (2d) 177, [2008] 3 C.N.L.R. 337.

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It is hard to quarrel with the conclusions reached in these cases. In fact, with
respect to one of the groups alleged in court to represent a Metis community, the
Rising Sun Community Restigouche West/Communaut Soleil Levant, the papers
filed upon registration of the societys name made no mention of a Metis
connection.65 More to the point, the evidence simply did not indicate that the groups
in question held the kind of sway over or assumed the level of importance in the lives
of their members that one expects in matters that are so fundamental to identity.
On the symbolic plane, had the courts (or the conservation officers) acceded to
the membership card declarations, they would have conveyed a message that
section 35 groupness could reside in the proffered thin and ephemeral connections.
Yet an ebbing tide, so to speak, lowers all boats. The result would have been to
devalue the extent to which Aboriginal collectivities fundamentally shape and nourish
their members identities, as if to intimate that rights-holding status were a mere
award.66 It would have a concomitant effect on the manner in which non-Aboriginal
persons perceive the Aboriginal peoples, likely skewing discourse and increasing
conflict between the two.
Moreover, section 35 recognition has an inescapably material aspect. The
constitutionalization of Aboriginal rights has, among other things, sanctioned
challenges to social and economic policy objectives embodied in legislation,67 and
affirmed a priority in the allocation of certain resources in favour of groups that are in
the minority.68 Acceptance of every assertion of rights-holding status would tend to

65 See R. v. Castonguay (J.-D.), ibid. The form in question required the applicant to declare the type
of business activity or service that would be carried on under the registered name. The response read:
Exploitation forestire et pcherie (forestry and fishing) (ibid. at para. 59). Contrast this to the Be-
Wab-Bon Mtis and Non-Status Indian Association and the Bonnechere Mtis Association, appellants
in Lovelace v. Ontario (supra note 44) which incorporated as non-profit service organizations for the
express purpose of creating an organizational voice for [the] community (ibid. at para. 11)viz. to
represent specific Metis interests.

66 My comments here are limited to what the reported decisions in the New Brunswick cases reveal
about the strength of the evidence presented, and are not intended to be an absolute judgment of the
groups mentioned above. I do not discount the possibility that better evidence might establish that the
organizations actually represent rights-bearing peoples, nor do I wish to deny that such instances
might involve issues of real individual and group identity. In this last regard, it is instructive to contrast
the results in the cases discussed in the present section, which turn on the absence of a rights-holding
community, and that in R. v. Lavigne, which turned on individual membership in a recognized rights-
holding Mikmaq community (2005 NBPC 8, 283 N.B.R. (2d) 298, [2005] 3 C.N.L.R. 176, affd
2007 NBQB 171, 319 N.B.R. (2d) 261, [2007] 4 C.N.L.R. 268).

67 Sparrow, supra note 17 at 1110.
68 The Sparrow Court held that any allocation of priorities in the B.C. fishery, once valid
conservation measures were met, must give top priority to Musqueam food fishing rights (ibid. at
1116). Subsequently, in R. v. Gladstone the Court confirmed that, even where the Aboriginal right has
no internal limitation, the government must demonstrate that it has allocated resources procedurally
and substantively in a manner respectful of the fact that [Aboriginal] rights have priority over the
exploitation of the fishery by other users ([1996] 2 S.C.R. 723, 137 D.L.R. (4th) 648 at para. 62,

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increase the number of parties with constitutional priority over resources. This could,
for reasons that are quite apparent, heighten tensions between Aboriginal and non-
Aboriginal parties. Equally, it could inure to the detriment of other Aboriginal
peoples. The game, fish, and forestry resources that are the subject of many
Aboriginal rights arewhile renewablefinite at any particular time (to say nothing
of the land that may be subject to a claim for Aboriginal title). Especially in a
relatively confined geographical area over which Canadian law has recognized the
rights of one group, the arrival of another on the scene introduces competition that
will require adjustments on the part of the prior rights-holders. These are sensitive
issues even in cases where the assertion of rights-holding status is widely accepted,
and would be most concerning were it not.69
By way of further example, the successive Powley decisions were hailed by

Ontarios Metis organizations as unbridled victories against
intransigent
governmental policies. The case, however, had broader implications. It also ushered
in a new relationship between the Metis of the Upper Great Lakes and the
Anishinabek (Ojibway) people whose Aboriginal and treaty rights in the area were
never in doubt. Anishinabek leadership has been supportive of the Metis cause, but
because Anishinabek rights would be affected by any post-Powley agreement
between the Metis and the Ontario government, the Anishinabek Grand Council
insisted on being party to negotiations. All indications are that the Metis interlocutors
welcomed Anishinabek participation, and that the parties interests were closely
aligned. But when it appeared, subsequent to the Ontario Court of Appeals ruling,
that that the Metis were prepared to exercise their rights in the absence of a settled
regulatory regimethat is, if no agreement could be reachedthe Anishinabek
Grand Council expressed trepidation about any course of action that would extend
rights, or impinge upon Anishinabek rights, without an all-party agreement in place.70

The point is this: parties with established rights granting them priority over
resource allocation will be required to make adjustments in the face of newly
recognized groups with similar entitlements. Strains may be inevitable, even where

Lamer C.J.C.). In such a case, the Aboriginal right will not be exclusive, but it will maintain priority
over other claims.

69 As the first agreements resulting from the B.C. Treaty Process begin to be initialled, a number of
lawsuits have been commenced that pit the rights and interests of some First Nations against the rights
and interests of others. See e.g. Saulteau First Nations v. Canada (A.G.), 2007 BCSC 492, [2007]
B.C.J. No. 726 (QL); Tseshaht First Nation v. Huu-ay-aht First Nation, 2007 BCSC 1141, [2007]
B.C.J. No. 1691 (QL); Cook v. Canada (Minister of Aboriginal Relations and Reconciliation), 2007
BCSC 1722, 80 B.C.L.R. (4th) 138, 72 Admin. L.R. (4th) 192.

70 I am much indebted to my late colleague Perry Shawana for impressing this point upon me. His
insightful commentary and personal warmth will be missed. I note as well that there has been some
friction between the Labrador Mtis Nation (LMN) and the Innu of Labrador over issues of
Aboriginality. As if to illustrate, in a recent case brought by the LMN over consultation rights, the
LMN declined to take a position on whether its claim would ultimately be based on Inuit or Metis
rights. This did not hamper its case, as the court recognized that the government did owe a duty to
consult, which the LMN could enforce (Labrador Mtis Nation, supra note 61).

B. OLTHUIS COMMUNITY IN THE CONTEXT OF SECTION 35

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the established party maintains close relations with the newly recognized one and
acknowledges the justice of its claim.71 The recognition of Aboriginal collectivities on
what might be perceived as less defensible assertions would naturally cause much
more consternation among the already recognized peoples in close proximity.

2. Who May Make the Declaration?

The second set of basic deficiencies in a purely deferential approach flows from
the manner in which verbal assertions are typically made: through individuals
recognized as or claiming to be community leaders. If we argue that these persons
declarations should be sufficient to prove section 35 right-holding status, we preclude
even the most cursory observation of the actual collectivity. We make no account for
analysis of the state of affairs on the ground. Granted, we must take declarations of
status seriously, but does it not make sense to retain some capacity for critical
perspective? This becomes especially important in light of the fact that a leaders
status and decisions may often be contested. In cases where there is substantial
dissent, a policy of recognizing all claims of rights-holding status could precipitously
fracture collectivities that were previously whole or subtly interconnected.
At the most basic level, deference to all outward declarations would be open to
abuse. In a dramatic case, this might occur through a gerrymandering of the
collectivity. Those making the declaration might seek to define the community in a
manner that eliminates challenges to their authority or other elements that they find
threatening or undesirable.

The situation need not even reach that extreme in order to have deleterious
effects. In the best of cases, a bare declaration can only crudely approximate the
elusive associations that forge community. In other circumstances, it may rupture
many of those associations. That is, to recognize all outward assertions of community
would be to encourage dissident groups, unhappy with their leaders approach in
respect of a certain rights issue, to break off and assert independent status as a
rights-bearing collectivity in a way that damages both groups.

In making this point, it must be noted that the processes by which human
collectivities coalesce and break apart are complex. We cannot condemn all splits a
priori, insisting that they are bound to end badly. It is impossible to cast judgment in
such general terms, in part because there is no reason that the status quo should be
universally privileged as evidencing the natural unit of community. For example, in
its modern incarnation, a group may represent formerly separate units that

71 Again, there is an analogue here to issues of membership. Gerald R. Alfred details how the
Mohawks of Kahnawake perceived the Bill C-31 initiative in a negative light (much like the Sawridge
Band discussed in Part II.A.2.b, above), fearing that the heavy influx of new Indians would place an
unbearable strain upon the resources and land bases of established Indian communities (Heeding the
Voices of our Ancestors: Kahnawake Mohawk Politics and the Rise of Native Nationalism (Toronto:
Oxford University Press, 1995) at 166-68).

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circumstances impelled to federate or form an alliance. Such unions are not
indissoluble by nature, nor are their constituent parts precluded from sometimes
acting independently, even in the pursuit of important ends. The Nuu-chah-nulth
nations of British Columbia provide an excellent case in point.

Long ago divided into chiefly families, Nuu-chah-nulth personssharing
traditions, languages, and aspects of culturecame together first in local groups, then
as nations. In 1958, the nations formed an alliance. After incorporating, they re-
named themselves the Nuu-chah-nulth Tribal Council (NTC) in 1979.72 In total,
fourteen First Nationsall recognized as bands under the Indian Actcomprise the
NTC, which has a combined population of approximately 8000 registered members.73
It should be noted, however, that the formalized structures at the national and tribal
council levels have in no way eliminated the rich ties and specificity that reside at the
local level.74
In 2001, twelve of the NTC First Nations jointly negotiated a draft agreement-in-

principle (AIP) with the governments of Canada and British Columbia in the BC
Treaty Process.75 Following this, each separately undertook a process of community
consultation with a view to approving the draft AIP. Ultimately, six First Nations
approved the agreement and six rejected it. In the aftermath, five of the nations that
had supported the draft AIP split off to continue negotiations as the Maa-nulth First
Nations (MFN), whose body represents roughly 2 000 persons.76 With one exception,
the MFN are geographically located around Barkley Sound on the west coast of

72 Nuu-chah-nulth Tribal Council Vision and Mission, online: Nuu-chah-nulth Tribal Council

73 The fourteen First Nations are: Ahousaht, Ditidaht, Ehattesaht, Hesquiaht, Hupacasath, Huu-ay-
aht, Ka:yu:kth/Che:k:tles7eth, Mowachat/Muchalaht, Nuchatlaht, Tla-o-qui-aht, Toquaht, Tse-
shaht, Uchucklesaht, and Ucluelet (ibid.).

74 The Tribal Council takes pains to emphasize that each member nation always included several
local groups, each centred around a hawiih [hereditary chief], and each living from the resources
provided within their hahoulthee [chiefly territory]. It goes on to state that [t]oday, each Nuu-chah-
nulth First Nation includes several chiefly families, and most include what were once considered
several separate local groups (ibid.). Moreover, the alliance formed in 1958 did not bring an end to
the process of change in the constituent bodies: in 1962, the formerly separate Kyuquot and
Checleseht Bands amalgamated.

75 At that point, the Ditidaht and Hupacasath First Nations were negotiating apart from the NTC.
The former entered the B.C. Treaty Process independently in 1993, having chosen not to participate in
the NTCs treaty negotiationsit has been negotiating at a treaty table with a non-NTC member, the
Pacheedaht First Nation. The latter withdrew from the NTC treaty table in 2000 (Aboriginal
Relations and Reconciliation, online: Province of British Columbia ).

76 Or just over one quarter of the total NTC population. The five nations negotiating as the Maa-
nulth First Nations are: Huu-ay-aht, Ka:yu:kth/Che:k:tles7eth, Toquaht, Uchucklesaht, and
Ucluelet. For B.C. treaty negotiation purposes, the NTC consists of the remaining seven First Nations
(ibid.).

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Vancouver Island.77 The remaining NTC nations are roughly situated between
Kyuquot Sound and Ucluelet on the coast, extending inland some distance as well.78

The MFN subsequently negotiated and ratified a modified AIP, and have
proceeded to initial a final agreement. The NTC nations are at an earlier stage, and
have initialled their own AIP. Through this all, however, the members of the MFN
have remained full members of the NTC and in fact received approval to pursue these
negotiations at their discretion in a resolution passed by the NTC.79 While the NTC
no longer serves as the primary locus for treaty negotiations for the member nations
of the MFN, it still provides them with a wealth of social programs and services, as
well as other forms of economic, political, and technical support.80

The Nuu-chah-nulth example testifies to the flux that is a regular feature of
human collectivities and to the fact that any given person often belongs to a plurality
of groups, often imbricated. It may be far from obvious which group membership
predominatesthat is, which one or ones are relevant for the purposes of a section 35
analysis.81

77 The Ka:yu:kth/Che:k:tles7eth First Nations traditional territory is further north, including
Kyuquot Sound and the southern half of the Brooks Peninsula (Ka:yu:kth/Che:k:tles7eth,
online: Kyuquot/Checleseht First Nations ).

78 Nuu-chah-nulth Tribal Council Vision and Mission, supra note 72.
79 The first NTC draft AIP was negotiated in March 2001 and was rejected by the non-MFN bands
shortly thereafter. On 15 May 2001, the NTC passed a resolution allowing the MFN to proceed with
their negotiations at their discretion, and enabling the remaining members of the NTC (i.e., those
nations that had rejected the AIP) to continue to evaluate their options on the negotiating front.
Furthermore, some of the MFN peoples sought and reached agreements with NTC member nations
regarding overlapping and shared territory, or establishing boundaries between the lands they
respectively claimed (Maa-nulth First Nations: Statement of Intent (26 September 2003), online:
B.C. Treaty Commission ).

80 Nuu-chah-nulth Tribal Council Vision and Mission, supra note 72.
81 These phenomena correspond roughly with what Brian Slatteryconsidering ethnic groupings
specificallycalls social pluralism (a challenge to the view of well-defined ethnic units) and
personal pluralism (every individual belongs simultaneously to a number of different groups and the
nature and importance of these groups vary with context and over time) (Our Mongrel Selves:
Pluralism, Identity and the Nation in Ysolde Gendreau, ed., Community of Rights/Rights of
Communities (Montreal: Thmis, 2003) 85). See again Alfreds presentation of a nested Mohawk
identity as a challenge to those who see identities as clearly delineated, and whose view of
community does not recognize the cross-cutting allegiances which arise over the course of a peoples
history (supra note 71 at 18).

Also of interest to the present discussion are cases in which Aboriginal rights claimants invoke
different collective units as rights holders. See e.g. Bear Island (H. Ct.), supra note 50; Oregon Jack,
supra note 52; Federation of Saskatchewan Indian Nations v. Canada, 2003 FCT 306, 230 F.T.R. 29,
[2003] 2 C.N.L.R. 131; Saskatchewan First Nations and Indian Bands v. Canada, 2003 FC 998,
[2003] F.C.J. No. 1262 (QL); Treaty Seven First Nations v. Canada (A.G.), 2003 FCT 327, 230 F.T.R.
53, 2 Admin. L.R. (4th) 300; Treaty Eight First Nations v. Canada (A.G.), 2003 FCT 782, [2003] 4
F.C. 1043, 236 F.T.R. 65.

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This example also indirectly evokes the complex web of connections that link
individuals in collectivities. While the cleavage occurred over the preferred collective
approach in treaty negotiations, it is far too facile to equate the MFN with the sum
total of individuals who supported the original draft AIP. No doubt there were
individual members of the MFN who sympathized with the NTCs rejection of that
agreement and individual members of the post-split NTC nations who would have
preferred its acceptance.82 A more accurate portrayal of the situation is that, in each
case, the decision regarding whether or not to support the draft AIP was made
collectively by an entity that not only predated the B.C. treaty process, but that also
could not be torn apart by disagreement over a particular issue, even one as seemingly
critical as this. In other words, the First Nations in question are united in a way that
goes far deeper, and that is more lasting, than a commonality of views on a specific
topic. This unity is rooted in the subtle and idiosyncratic ties of social community that
find their roots in lived experience.
Might not assigning categorical effect to declarations hasten the breakup of
meaningful collectivities? It is not uncommon to encounter the presumption,
sometimes even held by the very actors involved, that true community resides in
agreement on substantive precepts and values.83 Where this sentiment is coupled with
the ability to declare autonomy unilaterally, and where the various factions of a
community facing division over a given issue lose their appetite to suffer the
sometimes difficult processes of compromise and accommodation, the community
might simply splinter along lines of agreement.

There are dangers in adopting a definition of community that invests too heavily
in agreement. Undoubtedly, most communities do exhibit a core group of values and
aspirations that are shared by their members; however, these can typically be rendered
in a relatively short list of open-ended principles and general goals.84 They rarely, if

82 One of the post-split NTC nations did, in fact, originally opt for ratification of the draft AIP.
Moreover, the MFNs Statement of Intent for treaty purposes sets out the various processes through
which the member nations ratified the modified AIP (supra note 79). Not surprisingly, none of these
intimate that the matter was as simple as recording some existing unanimity among the MFN
membership: the First Nations either held community meetings that authorized ratification through
Band Council Resolutions, or conducted polls and secret ballots over ratification.

83 It is this sentiment, I think, that drives the frequent efforts in Canada at finding an essential
defining characteristic of our citizenship. There seems to be a fear that, unless and until we can locate
a list of commonly held beliefs, there is nothing to sustain our togetherness, no arguments to muster in
opposition to those who would seek dissolution of the federation or annexation to our southern
neighbours. Chartrand provides a discussion of the inevitability of strains and stresses in social
community in Dispossession (supra note 34 at 461).

84 Jeremy Webbers work on the constitution of political community has particular relevance to this
discussion. He argues trenchantly against the presumption that such bodies owe their groupness to
detailed lists of shared values or beliefs. Conceding that a core of shared values is important, Webber
claims (1) that this core is in reality quite compact and (2) that its composition may be identical across
a broad variety of similar groups (Reimagining Canada: Language, Culture, Community, and the
Canadian Constitution (Montreal: McGill-Queens University Press, 1994) at 183-228). The vision

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ever, will take the form of a comprehensive and detailed set of uniformly agreed-upon
means and ends. Thus, too narrow a focus on substantive agreement does a disservice
to the rich diversity that usually characterizes human collectivities.
In opinion (as in many other respects), no community is perfectly homogeneous.85

Indeed, it is arguably the case that disagreement over substantive ends, as the engine
that powers reflection and renewal, may in fact be crucial to the continued viability of
most groups. The stability of a group that is defined by concurrence relies, at least in
some measure, upon a stasis of thought, which suggests diminished individual and
collective self-reflection.86 Recognizing that legal traditions are much richer than
whatever positive law they may encapsulate at a given juncture, anything that might
retard the progressive or reflective impetus ought to be subject to the strictest
scrutiny.

Secondly, there may be concerns about the stability of a group defined by
agreement. Consider the matter of geography. Typically, the interactions that form
and sustain community owe something to locational proximity. From the family, to
the village, to broader national groups, shared space facilitates the exchanges that go
into building the thick web of connections that inhere in social units.87 On the other
hand, while a grouping based solely on agreement at a precise moment in time will
probably have some geographical correlation, it is not necessarily an especially strong

Webber posits insteadin short, that political communities are embodied more in the character of
their conversation than in a particular substantive position to a debateis in my view applicable to
most human collectivities.

85 Hugessen J. (previously J.A.) made note of this in the context of the Sawridge Band litigation.
When the Federal Court Rules, 1998, S.O.R./98-106 were amended to eliminate the representative
action, the plaintiffs sought to amend the statement of claim to reflect that the bands themselves
brought the action. The Crown again argued that this would be inappropriate because the action was
by definition only brought by a subset of each band. The Court rejected the argument:

[I]n my view, the question of whether the band represents all of the band members is
irrelevant, since the bands are not suing in a representative capacity, rather they are
suing in their own right. It is analogous to a band suing one of its members directly.
Since it is already clear that a band is capable of bringing an action, the fact that all
members of the band may not agree is simply irrelevant. Few corporate bodies will at
all times be acting in a way which meets the unanimous approval of all their members
(Sawridge Band v. Canada, 2003 FCT 665, [2003] 3 C.N.L.R. 358 at para. 15
[emphasis added]).

86 I note that, in the liberal democratic tradition, values such as the freedom of expression are
sometimes justified on the basis of such factors. See e.g. Irwin Toy Ltd. v. Qubec (A.G.), [1989] 1
S.C.R. 927 at 968, 58 D.L.R. (4th) 577, Dickson C.J.C.

87 Arguably, in the modern age, the physical aspect of this proximity assumes a lesser importance.
Groups may more easily maintain their connections remotely, owing to communications technology.
To be certain, certain human communities require very little face-to-face contact. But we are not
discussing here the many work- or pastime-related groups to which individuals often belong. The
topic of this article, rather, concerns fundamental human social units, which, although they may
ultimately be sustained over long distance, generally find both their genesis and sustenance in the
relationships created in prolonged physical exposure.

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onethe resulting community, for example, will probably not replicate the physical
togetherness of an actual neighbourhood or village. If the individual members are not
in sufficient proximity to enable regular interaction, it could be difficult for them to
sustain cohesion over time.

Thirdly, opinions are generally changeable and lack the relative permanence of
deeper social connections, such as a commitment to a particular deliberative process.
Bare agreement provides a flimsy foundation for any sort of durable community.
As an additional consideration, the prospect of instability poses a challenge in
terms of inter-group relations. Transitoriness is hardly a quality that is compatible
with the conduct of any sort of ongoing dialogue. It would have a debilitating effect
on the already difficult cut and thrust of negotiations between Aboriginal and non-
Aboriginal parties if the interlocutors themselves were constantly shifting. To the
extent that a breakaway could cause a destructive balkanization, jeopardizing the self-
sustaining capacity of both the splitter and splitee, declarations of rights-holding
status merit some investigation. For this reason, it is often suggested that it is
necessary for claims to be evaluated against some set of criteria. But what sort of
criteria? Who will choose them? Who will apply them? How might such an
evaluation proceed?

C. An Objective Test
It is commonly assertedor implied, as by the Court in Powleythat a

community may be determined through the application of an objective test. Such a
test might result from judicial decision or from legislative action. It would contain a
set of criteria or indicia, intended to capture the relevant connections that bind
individuals together as a community. By measuring the evidence pertaining to a
particular group against these pre-established factors, one would be poised to identify
whether it rose to the level of a constitutional rights-bearing collectivity.

The veneer of objectivity does have superficial attractiveness, but it cannot stand
up to the weather. Broadly, there are two major flaws endemic in an objective
approach: one relates to the initial selection of the criteria, and the other to the
difficulties in applying them to a given set of facts. I shall tackle these in order.

1. Who Is to Choose the Criteria?

Objective criteria do not emerge from the ether. Some person or persons must
evaluate prospective factors as indicators of community and come up with a list they
believe appropriate to the task. This undertaking is one of tremendous responsibility.
It is also one that inevitably occurs from a particular cultural vantage point. Criteria
choosers will fix on what appear to be the core indicators of togetherness from their
perspective. And community is largely a matter of perspective. If asked to pinpoint

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the key element of its collectiveness, one group might emphasize common ancestral
or racial bonds.88 Another group might stress tangible elements of culture
(language, style of music or dress, religion, or way of life89) as the collective glue,
de-emphasizing ancestry to the point where it allows for adult naturalization through
marriage or other means.90 There may also be a tendency to incorporate some notion
of exclusivity, leaving no room for the sort of layered approach discussed above,
which recognizes that individuals may belong to multiple groups at once.
Yet there are more culturally specific (or subjective) ways of understanding
groupness that do not necessarily produce these sorts of signposts, and may
completely escape the imagination of someone who does not belong to that group.91
For instance, groups might trace aspects of collective consciousness to shared legends
or to a particular creation story. These might not only describe the groups putative
genesis, but also its relation to the world and to other peoples (i.e., defining the
community as against what it is not).92

88 Very recently, in Kapp, the Supreme Court accepted with little analysis the view that an
ameliorative program for First Nations fisheries amounted to differential treatment on the basis of
race (supra note 28 at para. 29). With respect, such a conclusion mandates a fuller discussion, given
as it appears to represent an overly facile view of Aboriginal collectivities.

89 Each of these was present in the Powley trial record (supra note 2). Among the various factors
supporting Metis peoplehood put forward by the lay and expert witnesses were: ancestry, language
(Michif), religion (Roman Catholicism), musical tradition (featuring a distinctive style of fiddling),
dress (particularly the sash), cuisine, traditional games, and economic way of life.

90 This is another of the many examples of the interdependence between peoplehood and group
membership. In a case where naturalization is permitted (e.g. Deer v. Okpik, [1980] 4 C.N.L.R. 93
(Que. Sup. Ct.) (acceptance of a non-Inuk (Cree) man into Inuit society through marriage to an Inuk
woman); R. v. Meshake, 2007 ONCA 337, 85 O.R. (3d), 575, 155 C.R.R. (2d) 85 (member of Treaty 9
First Nation accepted by Treaty 3 First Nation upon marriage)), this cannot be treated simply as an
extension of membership, since it also provides a specific understanding of family and communicates
a particular conception of the groups nature.

91 This point introduces another interdependence: namely, that between (1) the factors that may
suffice to indicate that a group is a people, and, once peoplehood is recognized, (2) the elements of the
particular society that may be described as central and significant or things that truly made the
society what it was (in the words of Lamer C.J.C. in Van der Peet, supra note 29 at para. 55
[emphasis in original]). In both cases, the indicators may be inescapably subjective to the
collectivity in question, and that which is most dear to a society may be overlooked or regarded as
incidental by others: Russel Lawrence Barsh & James Youngblood Henderson, The Supreme
Courts Van der Peet Trilogy: Naive Imperialism and Ropes of Sand (1997) 42 McGill L.J. 993 at
1000.

92 A creation story might provide positive substance to a peoples collective world view, sense of
morality, or understanding of its purpose (not to mention important context in its appreciation of the
wrongs it may have suffered at the hands of others). Thomas King states perspicaciously that a
creation story, a story that recounts how the world was formed, how things came to be, [contains]
relationships that help to define the nature of the universe and how cultures understand the world in
which they exist (The Truth About Stories: A Native Narrative (Toronto: House of Anansi Press,
2003) at 10).

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Whatever indicia are taken to represent community, one can say with near
certainty that they will not be capable of accurately reflecting the self-conceptions of
all Aboriginal groups. This failing is crucial for two reasons. First, where the selected
criteria clash with a communitys self-conception, there is a possibility that
application of the test could produce skewed results, as I shall discuss below. But
even prior to that, groups seeking recognition under section 35 will, in light of the
stakes involved, be pressured to show conformity to the test. Along the way, the
collective might be irreversibly contorted into quite a different form.
On both the intimate and social planes, in Charles Taylors words:

[O]ur identity is partly shaped by recognition or its absence, often by the
misrecognition of others, and so a person or group of people can suffer real
damage, real distortion, if the people or society around them mirror back to
them a confining or demeaning or contemptible picture of themselves.93

To this I would add that the pernicious effects of misrecognitionthe distortions
reach their maximum when, by virtue of the prevailing power structure, the once-
inaccurate reflection comes to dominate, and the group loses something irreplaceable.
The commitment made by section 35 must represent an exit from that state of affairs,
not its entrenchment.94

2. How Are the Criteria to Be Applied?

An objective test can never be just that. Even if it were possible to compile an
exhaustive list of relevant criteria, the application of these criteria would prove
impossible in practice. In certain cases, any one or all of the factors might well be
indicators of a rights-holding community. But they would not, globally or
individually, assume uniform importance across all communities. An element of
subjective judgment will enter the equation whenever the party charged with deciding
the matter has to weigh the evidence and determine, for instance, whether the absence
of a given criterion is fatal, or whether a particular mix achieves the critical mass
necessary to prove rights-holding status. I am not suggesting that such judgments
cannot be made; they are made all the time. But the party making them cannot, in
these particular circumstances, claim to be truly objective.

93 Charles Taylor, Multiculturalism and The Politics of Recognition: An Essay (Princeton, NJ:
Princeton University Press, 1992) at 25 [emphasis in original]. For works devoted more generally to
the newcomers superimposition of their own versions of Indianness on Aboriginal communities,
see Robert F. Berkhofer, Jr., The White Mans Indian: Images of the American Indian from Columbus
to the Present (New York: Alfred A. Knopf, 1978); Robert A. Williams, Jr., The American Indian in
Western Legal Thought: The Discourses of Conquest (New York: Oxford University Press, 1990);
Robert A. Williams, Jr., Linking Arms Together: American Indian Treaty Visions of Law and Peace,
1600-1800 (New York: Oxford University Press, 1997) at 14-39 [Williams, Linking Arms].

94 The instances of legislatures having overridden or ignored Aboriginal concerns, which are legion,
are a matter of historical fact that cannot be changed. Canadian society must do its best to ameliorate
the situation, and to ensure that it will not repeat itself.

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Like the party who selects the criteria, the person or body charged with assessing
the evidence and adjudicating the matter under an ostensibly objective approach
wields significant power. Presumably, the decision maker will make every effort to
act fairly and impartially. But bias and closed-mindedness are only the most obvious
threats to an even-handed judgmentthe more insidious threat resides in the
descriptive elusiveness of community. Despite constant exhortations from the
Supreme Court of Canada that it is necessary to consider the Aboriginal perspective
in connection with section 35, it is difficult to do so with community, a concept that is
not easily articulated.95 Adjudicators may be left to rely upon their own impressions,
which will again be rooted in their particular cultural milieux. As impartial as the
adjudicator may strive to be, there can be no compensating for things that lie beyond
his or her comprehension.

III. Another View

The difficulty with each of the above approaches is that community is simply too
elusive a concept, too grounded in the particular and richly subjective connections
that bind individual members together, to be susceptible to these simple reductions.
None of those approaches can replicate what it is that Aboriginal groups doin terms
of the role they play in their members lives and the importance that they bring to
themlet alone get around the blind spots caused by cultural difference.96 I do not
suggest that the issue admits of an easy answer or, what is not necessarily the same,
an easily articulable one.

Certain themes, however, do emerge from the foregoing critiques. As community
is neither purely subjective nor purely objective, the inquiry must go beyond mere
observationby necessity it involves an exercise of interpretation. To paraphrase
anthropologist Clifford Geertz, investigating community in the section 35 context is
like trying to construe the meaning of a ragged and faded manuscript, in a foreign
tongue, full of ellipses and incoherencies.97 Yet it is possible, I believe, to identify
some salient aspects of the type of community that section 35 envisions, in order to
guide the interpretive process. I stress that my comments in this regard are descriptive
rather than conclusory in nature. I do not advance a check-list of a priori elements

95 For example, while their narratives provided more compelling evidence of modern community
than the clinical and document-based evidence of the experts, the Metis lay witnesses testifying at the
Powley trial had an exceedinglybut understandablydifficult time describing the X factor that
enabled them to say with certainty that a Metis people existed in the Sault Ste. Marie area.

96 I do not suggest that this difficulty is unique to the Aboriginal context. As the Court held in
Syndicat Northcrest v. Amselem, it is difficult for the courts to avoid undue entanglement with, or
interference in, an individuals religious practices and beliefs unless they are prepared to adopt a broad
outer definition of what constitutes religion (2004 SCC 47, [2004] 2 S.C.R. 551, 241 D.L.R. (4th) 1
at paras. 39-56).

97 Clifford Geertz, The Interpretation of Cultures: Selected Essays (New York: Basic Books, 1973)

at 10.

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of community. Rather, I propose something more in the nature of a methodology, or
considerations to focus the inquiry.

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A. The Intensity and Quality of the Groups Social Character

The nub of modern rights-holding status is the continued capacity to generate
norms or customs separate from or in opposition to those imposed or followed by the
non-Aboriginal order. In addition, those norms or customs should be meaningful, in
the sense that they reflect the groups importance to the identities and lives of its
members.98 In a nutshell, we must determine whether the asserted community
represents a sufficiently dense site of interaction to possess its own means of
determining social norms.

Importantly, this is not merely an investigation into the existence of a particular
set of shared customs or traditions. Instead, we should direct our attention to the
groups capacity or aspiration to engage in a process of normative determination.
Obiter dicta found in certain cases, suggesting that the continuance of particular
customs is the central feature of a rights-bearing community, should not be
followed.99 Rather, the inquiry must focus on the communitys concern with
maintaining control over the method(s)whether customary or legislative in
naturethrough which it develops, decides on, or consents to the substance of its
normative order, and on the communitys ability to act on that concern.
This is not entirely dissimilar from the approach suggested in RCAP:

Restructuring the Relationship.100 In discussing the matter of self-determination, the
commissioners presented a vision of Aboriginal nationhood that included what they
termed a collective sense of identity. In the commissioners view, this is usually
grounded in a common heritage, but could also be a product of shared contemporary
situation and outlook.101 As distinct from the approach taken in the RCAP Report,
however, my conception is less concerned with the various factors that might
motivate individuals to come together to begin with, and is more focused on what the
community achieves once it is together.

98 The inquiry mandated by s. 35(2) must search for communities of meaningful connection. Our
concern is therefore not with simple observable habits but rather with what H.L.A. Hart terms the
internal aspect of the conduct in question: a reflective critical attitude, in the group members, about
its propriety (The Concept of Law, 2d ed. (Oxford: Oxford University Press, 1994) at 56-57).

99 For instance, in Mabo v. Queensland (No. 2), Brennan J. (as he then was) stated: [W]hen the tide
of history has washed away any real acknowledgment of traditional law and any real observance of
traditional customs, the foundation of native title has disappeared ((1992), 175 C.L.R. 1 at 60, 107
A.L.R. 1 (H.C.A.) [Mabo (No. 2) cited to C.L.R.]).

100 Supra note 22 at 177ff.
101 Ibid. at 178.

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B. OLTHUIS COMMUNITY IN THE CONTEXT OF SECTION 35

B. The Importance of a Distinct Normative Process
The party charged with making the recognition decision must carefully and

sensitively evaluate the record for any indication of a distinct normative process. In
many cases, the inquiry is bound to be led by impressions rather than hard facts.
There may be objective facts capable of revealing the contours of an Aboriginal
legal orderpatterns of behaviour that provide strong hintsor the relevant indicia
could be entirely subjective, discernable only in the first-hand accounts of the
members of the would-be group. Regardless, one might best structure the inquiry by
adopting a simple and pragmatic approach: decision makers ought to review and
interpret the evidence in an attempt to discern whether it reveals the particular type of
norm-generating community with which section 35 is concerned. They must attempt
to immerse themselves in the subjective links of the alleged community, not merely
taking into account, but doing their best to absorb the claimants perspective on the
matter.
In both Van der Peet102 and Delgamuukw,103 Chief Justice Lamer exhorted trial

courts to approach the rules of evidence in Aboriginal law cases with a modicum of
flexibility. Powley provides a good example of the challenges courts may face, and of
the necessity for a more open approach to both admissibility and evaluation of
evidence. The lay witnesses at the Powley trial struggled to express what it was that
made the Metis persons in Sault Ste. Marie a community. This sort of evidence is
unlikely to take the form of an expert treatise. It may be presented in vignette or
anecdotal form. A decision maker faced with such evidence must do his or her best to
evaluate whether it provides support for the existence of a community with its own
norm-generating process.

It may be that, practically speaking, it is difficult to find evidence that speaks to
anything other than conflict between the actual normative content of Aboriginal and
non-Aboriginal societies. However, as the existence of temporary harmony between
the specific norms prevailing in two different societies does not end their respective
capacity for normative determination,104 the decision maker should diligently evaluate
all testimony provided by the members of the would-be community, even if
descriptions of particular norms appear to differ little in substance from those in the
dominant legal order.

This analysis must not be a judgment of the worth or value of the community,
merely an inquiry into its existence. Moreover, since the decision makers are by
definition seeking something that is foreign to dominant conceptions of community,

102 Supra note 29 at para. 68.
103 Supra note 39 at paras. 80-88.
104 For instance, in the federal context, the existence of substantially similar laws in neighbouring
provincessay, the Negligence Act, R.S.B.C. 1996, c. 333, s. 1 and the Contributory Negligence Act,
R.S.A. 2000, c. C-27, s. 1does not impair either provinces ability to amend or repeal its own
provision in the future.

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they must not view themselves as slavishly bound to follow the line of jurisprudence
that would require Aboriginal claims to find analogues in the common law
tradition.105 On the contrary, the goal is first to find whether there is an Aboriginal
collectivity with a normative tradition distinct from the relevant common law or
statutory rules, and then to fashion a suitable result.

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C. Membership in Multiple Rights-holding Groups

Individuals may be members of multiple rights-holding groups in a federal
relationship. In some cases, a relatively small group will be a constituent (or
federal) part of a larger one. It may be that the constituents are the ultimate
authorities for determining particular aspects of the normative order.106 For instance,
where a community traditionally breaks into smaller units for certain seasons of the
year, it may be that the wintering community is the one to which members look for
certain customs (for example, those related to hunting), but the larger summering
community is the one to which they look for certain others (for example, those related
to fishing).
An individual member of both groups may conceivably be able to claim different
Aboriginal rights under each. Indeed, the MFN example possibly furnishes one such
illustration.107 In a situation like this, it is crucial for the evidence to show distinct
spheres of normative engagement. This would lend support to the conclusion that the
constituent group represents the appropriate determining authority for some
normative aspects, and the larger group for other aspects.

D. The Situs of the Right

A group might be a rights-holding entity for one purpose, but not for others. It
follows that one individual might belong to a number of different Aboriginal
collectivities, exercising a species of site-specific rights in the name of one group and
participating in another groups more traditionally national rights (such as self-

105 Lamer C.J.C. held in Van der Peet that: [T]he only fair and just reconciliation is … one which
takes into account the aboriginal perspective while at the same time taking into account the
perspective of the common law. True reconciliation will, equally, place weight on each (supra note
29 at para. 50). See also Delgamuukw, supra note 39 at para. 112, Lamer C.J.C. Recently, in a
substantial gloss, McLachlin C.J.C. held in R. v. Marshall; R. v. Bernard that this reconciliatory
process requires Aboriginal claimants to seek a corresponding common law right (2005 SCC 43,
[2005] 2 S.C.R. 220 at para. 51) and to prove that their practice corresponds to the core concepts of
the legal right claimed (ibid. at para. 48).

106 This, again, is similar to what is described in RCAP: Restructuring the Relationship, where the
commissioners state that local communities in an Aboriginal nation will have to come together for the
purposes of exercising the right of self-determination, but that it would be natural for a reconstituted
Aboriginal nation to adopt a federal style of constitution that ensures that a considerable measure of
authority rests with local communities (supra note 22 at 179).

107 See Part II.B.2, above.

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government,108 Aboriginal title, or the right to enter into a comprehensive treaty with
the Crown). For this reason, I have deliberately used a variety of terms to describe the
rights-holding entities under section 35 throughout this paper. The term people in the
actual constitutional text should not be interpreted as setting the bar for rights-
holding status in accordance with that words usage or meaning in other legal
contexts. Likewise, and notwithstanding certain prosecutorial submissions to the
contrary,109 the recognition that smaller Aboriginal communities may hold their own
site-specific rights is in no way a negation of the broader rights held by larger
communities. The particular legal lexicon is not important. Rather, the key issue is
whether the collectivity in question meets the norm-generating criterion. If it does, it
may be a rights-holding entity.

E. A Tailored Focus
The analysis should be focused on the particular kind of normative order

implicated in the instance. By necessity, the exercise is entirely fact specific. In a
prosecution under fish or game legislation, the rights claimant ought not to be called
upon to prove the existence of (and his or her membership in) anything more than an
Aboriginal collectivity with a normative system governing the conduct of individual
members engaged in the particular pursuit. Likewise, in respect of Aboriginal title
negotiations, the claimant group ought to establish that it is an Aboriginal community
of sufficient density to engender relations to the land and the environment of the sort
that would conflict with competing assertions of the Crown.

For example, if the evidence shows that (1) there were historically a number of
Aboriginal persons in a region, (2) who hunted with a certain intensity, and (3) who
did so in a manner that did not fully resemble that of the European populace of the
region, or that suggested that the persons were not merely conforming to European
norms, then this may indicate that they were operating in concert or obeying a
common Aboriginal custom. It would then be open to the decision maker to conclude
that the individuals formed, at least for the limited purposes of hunting, an Aboriginal
rights-bearing collectivity. The inquiry would then turn to whether the modern group
had a relationship of continuity with this historical group.

This should not, however, be taken to preclude a modern claim of a right to fish
where it can only be shown that the historical group engaged in hunting. In keeping

108 The commissioners in RCAP: Restructuring the Relationship (supra note 22 at 179) defined the
nation (in part) as the level of social organization that could exercise a right of self-government.
They then recommended that Parliament adopt legislation to enable Aboriginal communities to come
together as nations and seek governmental recognition.

109 In R. v. Laviolette (2005 SKPC 70, 267 Sask.R. 291), for example, the Crown argued
(unsuccessfully) that the Courts decision in Powley (supra note 2) provided authority for the
proposition that no unit larger than a village, town, or city could hold Aboriginal rights. A similar
argument was, however, accepted in R. v. Belhumeur (2007 SKPC 114, 301 Sask. R. 292, [2008] 2
C.N.L.R. 311 at paras. 200-207).

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with the rejection of frozen rights and the rather expansive approach taken in
Powley (the Court preferred the characterization that members of the Metis
community earned a substantial part of their livelihood off of the land, over the
Crowns much narrower assertion that the right was limited to hunting and, further, to
individual species110), it ought to be sufficient for the claimant to show that the forms
of conduct governed by the historical communitys normative order correspond in a
rough and general way to that currently in question. If changes in location or
environment resulted in an evolution of the groups food-gathering pursuits, there is
every reason to allow the modern claimant to exercise the right as it is relevant to
todays conditions.

F. The Historical Reference Point

The historical inquiry should focus on the time when European legal systems
truly began to obtain in the region. It was the introduction of effective European legal
ordersnot the mere arrival of explorers or missionaries, or the establishment of a
few scattered and isolated settlementsthat provided occasion for the emergence of
the doctrine of Aboriginal rights. It follows that the communities of interest in this
inquiry are those whose normative orders came, or could have come, into conflict
with those of the newcomers. The modern rights-claiming community should be
placed under no greater burden of proof than to show that it is the successor (or one
of the successors) to a historic community that existed at the time when the
competing European legal order was established in the region.

G. Evidence of a Community

There must be evidence that the contemporary claimant is an actual community.
At points in its judgment in Powley, the Court seemed to emphasize continued
individual practice of customs linked to the historic Sault Ste. Marie Metis
community.111 This may be attributed to the fact that the trial record contained scant
direct evidence concerning the contemporary community, other than the testimony
concerning the role played by the MNO. It would have no doubt been helpful if the
Powleys had adduced further evidence at trial to support, directly or indirectly, the
proposition that the MNO (or OMAA) actually functions as or otherwise represents a
contemporary right-bearing community. However, even absent such evidence, I
suggest that it was incumbent upon the Court to analyze more closely the record as it

110 See Powley, supra note 2 at para. 43, citing the expert report of Dr. Arthur Ray, tendered at the

Powleys trial.

111 Ibid. at paras. 24-27. For instance, the Court indicated that the required degree of continuity and
stability is met by evidence of the historical communitys persistence, although the focus [is] on the
continuing practices of members of the community, rather than more generally on the community
itself … The Court held that individual claimants must demonstrate the continuity between their
customs and traditions and those of their Mtis predecessors (ibid. at para. 29).

B. OLTHUIS COMMUNITY IN THE CONTEXT OF SECTION 35

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existed, to determine whether there was any evidence that could reasonably support
such a conclusion. Otherwise, one risks losing sight of the fundamentally collective
nature of Aboriginal rights and, potentially, vesting these rights in a scattering of
individuals who can claim biological descent from a former norm-generating
community. In this connection, once the decision maker recognizes a historic
community, the inquiry should turn to the matter of continuity.

H. Continuity Between the Historical and Modern Groups

Continuity between the historical and modern groups need not be absolute. As
already stated, there is no reason to require that the rights-holding group remain today
in its exact historical form. An Indian Act band may be the proper successor to a First
Nation. Indeed, in some circumstances, even a recently established body might be a
legitimate successor to an Aboriginal group that pre-existed and survived the
dominance of the European legal order. Alternatively, it might represent another
phase of community, a conglomeration of smaller bodies into a rights-bearing
federal whole. The NTC, discussed above, provides an example where this appears
to be the case.

The central issue, again, is with the continuity of norm-generating capacity;
institutional continuity is a concept distinct from this. Although the latter can
undeniably play a role in the continuity of the communitys normative order, it cannot
be said to lie at the core of the matter. As section 35 does not involve the freezing
of particular rules, it likewise does not restrict the community to one institutional
form.

I. The Potential Revival of a Dormant Group

There is nothing automatically barring a dormant group from reviving. Case
law refers to the possibility that an Aboriginal collectivitys national fire112 might be
extinguished, or that the tides of history might wash away its rights-holding
status.113 There is no question that a long-dormant group can reach a point of no
return whereafter it cannot be revived. For example, one cannot assert that the
Beothuk people who disappeared from Newfoundland in the early nineteenth-century
can re-emerge as a rights-holding people.114 Nonetheless, there does not appear to be
any compelling reason in principle why the continuity requirement would necessarily
bar a dormant Aboriginal community from reviving and once again claiming
Aboriginal rights. A group may have temporarily lost its normative hold on its

112 Fletcher, supra note 13 at 146, Johnson J., dissenting.
113 Mabo (No. 2), supra note 99 at 60; Members of the Yorta Yorta Aboriginal Community v.

Victoria, [2002] HCA 58, 214 C.L.R. 422.

114 The Beothuk are commonly referred to as extinct, but there are some theories that a number of

Beothuk persons left for Labrador, where they were incorporated into the Innu and Naskapi peoples.

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members, yet may attempt to reclaim its former status later, upon its re-establishment
as a fundamental social and cultural medium in a subsequent generation.

Presume, for instance, that members of the dormant community are absorbed into
other Aboriginal collectivities or non-Aboriginal society. Years later, individuals who
were youths at the time the group dissipated decide to introduce their children or
grandchildren to the old community traditions. There is no reason to peremptorily
deny a community like this the ability to hold section 35 rights. There should be no
obligation for the group to show an unbroken line of continuity, provided that it
passes the test of Aboriginality. That is, the community must show that it is the
successor to a social order that took hold prior to the effective imposition of that of
the newcomers, and that it exists today as a norm-generating unit and, accordingly, a
fundamental source of individual and collective identity for its members.
Again, it has been in large part owing to wrong-headed assimilatory policies of
the Canadian government that some Aboriginal societies were weakened, and it does
not accord with the constitutionalization of Aboriginal rights to deny the reach of
section 35 to groups that are only now rebuilding a dignified sense of community.115
Where the record indicates that the modern group has a close connection to the
dormant group and that the modern group represents to its members roughly what the
dormant group represented to its members, we ought to recognize this as sufficient
continuity for the purposes of section 35.

IV. A Note on the Decision Maker

I have throughout this discussion used the generic term decision maker. It
deserves mention that, if the perpetually large volume of Aboriginal rights court cases
is any guide, the parties will likely petition a judicial forum for resolution where
recognition is likely to be an issue (i.e., where the situation is in any way
exceptional). As the Powley case again illustrates, the judicial review process
facilitated by the Constitution Act, 1982 is an attractive avenue for previously
marginalized individuals and collectivities in their attempts to contest the dominant

115 In Simon v. R., Dickson C.J.C. cautioned against imposing a substantial evidentiary burden on
First Nation claimants ([1985] 2 S.C.R. 387 at 407-08, 24 D.L.R. (4th) 390). Recently, there have
been several matters before the courts where descendants of dispersed bands have brought suits to
address allegations of historical wrongs. The Supreme Court of Canada recently dismissed such a
claim on a limitations basis, assuming for the purposes of analysis that the plaintiffs had standing to
bring the claim: Canada (A.G.) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372 at para. 12, 292
D.L.R. (4th) 49, revg 2006 ABCA 392, 404 A.R. 349, 78 Alta. L.R. (4th) 24. See also Kingfisher v.
Canada, 2001 FCT 858, 209 F.T.R. 211, affd 2002 FCA 221, 291 N.R. 314, leave to appeal to S.C.C.
refused (sub nom. Kingfisher v. The Queen) [2003] 1 S.C.R. xii. Litigation has also been launched in
British Columbia over the Sinixt people, which the federal government had declared defunct in the
1950s: Anna Mehler Paperny, Extinct Tribe Claims Swath of Kootenays The Globe and Mail,
B.C. ed. (2 August 2008) S2.

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order.116 In spite of the courts frequent admonitions that Aboriginal rights claims are
best solved through negotiation, not litigation,117 the decision in Powley appears to
have ushered in a veritable explosion in Metis rights court cases rather than the
desired move to the bargaining table.118 Indeed, the Court might now be accepting this
reality, as on two recent occasions it appeared resigned to the fact that litigation is
bound to play a significant role in the future delineation of Aboriginal rights.119

If questions such as these are to be addressed in the courtroom (in spite of its
institutional weaknesses), the parties involvedmost obviously the judges, but also
the lawyers, the witnesses, and the consultantsall bear responsibilities to facilitate
the interpretive process.

116 For instance, relatively early in the Powley litigation, the accused were offered the opportunity to
end the legal battle through a judicial stay of charges, but declined in order to present a test case for
the vindication of Metis rights: (1998), 58 C.R.R. (2d) 149, [1999] 1 C.N.L.R. 153 (Ont. Ct. J. (Prov.
Div.)) at para. 141.

117 In the Supreme Court of Canada alone, see e.g. Sparrow, supra note 17 at 1105; Van der Peet,
supra note 29 at paras. 311, 313, McLachlin J., dissenting, but not on this point; Delgamuukw, supra
note 39 at para. 186, Lamer C.J.C.; R. v. Marshall, [1999] 3 S.C.R. 533, 179 N.S.R. (2d) 1 at para. 22;
Mitchell v. M.N.R., 2001 SCC 33, [2001] 1 S.C.R. 911 at para. 20, 199 D.L.R. (4th) 385, McLachlin
C.J.C.; British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3
S.C.R. 371 at para. 47, 233 D.L.R. (4th) 577, LeBel J.; Haida, supra note 44 at para. 14; Taku, supra
note 44 at para. 24.

118 See e.g. R. v. Willison, 2005 BCPC 131, [2005] 3 C.N.L.R. 278, revd 2006 BCSC 985, [2006] 4
C.N.L.R. 253; R. v. Norton, supra note 61; R. v. Laviolette, supra note 109; R. v. Manners, supra note
28; R. v. Burns, supra note 28; Guay, supra note 28; Fortin, supra note 28; R. v. Beaudry, supra note
28; R. v. Chiasson (No. 1), supra note 64; R. v. Castonguay (J.-D.), supra note 64; R. v. Castonguay
(R.), supra note 64; R. v. Daigle, supra note 64; R. v. Castonguay (D.), supra note 64; R. v. Chiasson
(No. 2), supra note 64; R. v. Hopper, supra note 64. See also R. v. Nunn, [2003] B.C.J. No. 3229 (Prov.
Ct.) (QL), decided after the Ontario Court of Appeal decision in Powley, but before the Supreme
Court of Canada judgment.

119 See Powley, supra note 2 (a combination of negotiation and judicial settlement will more
clearly define the contours of the Mtis right to hunt at para. 50) and R. v. Marshall; R. v. Bernard,
supra note 105 at para. 144, LeBel J., concurring:

The question of aboriginal title and access to resources in New Brunswick and Nova
Scotia is a complex issue that is of great importance to all the residents and
communities of the provinces. The determination of these issues deserves careful
consideration, and all interested parties should have the opportunity to participate in
any litigation or negotiations. Accordingly, when issues of aboriginal title or other
aboriginal rights claims arise in the context of summary conviction proceedings, it may
be most beneficial to all concerned to seek a temporary stay of the charges so that the
aboriginal claim can be properly litigated in the civil courts. Once the aboriginal rights
claim to the area in question is settled, the Crown could decide whether or not to
proceed with the criminal charges.

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Conclusion: Membership and Beyond
It is impossible to grapple with the scope and nature of community under

section 35 without confronting certain sequelae. In closing, I make brief mention of
two.

First, there can be little justification for demanding that an individual prove a
strong ancestral link in order to benefit from Aboriginal rights. A court-imposed
ancestral or genealogical requirement declares, in my view erroneously, that
Aboriginal rights descend by way of the individual members, rather than by way of
the communities themselves. It also suggests that Aboriginal groupness has an
inherent genetic component.120 Indeed, an ancestral requirement predetermines the
communitys nature and correspondingly fetters its ability to self-define, resulting in a
loss of the flexibility needed to adjust to the constantly changing world.
Doubtless, ancestry may play a roleeven a substantial rolein binding
individuals to groups that are fundamental to their identity, but it is only one factor
and it is not truly a requisite one. It may be a sufficient connector in a given case, but
it is not, by definition, necessary. To the extent that the Supreme Court of Canadas
decision in Powley imposes ancestral connection as a condition precedent to a
successful claim of Metis rights, it reflects a reductionist version of Aboriginal society
that cannot assist in fulfilling the promise of section 35. These comments apply a
fortiori to the extent that the decision might be taken to impose the same criterion for
section 35 rights generally.

In my view, an Aboriginal community holding site-specific section 35 rights must
have the ability to determine which individuals may exercise those rights. Consider
briefly the instrument of the treaty. From the earliest instances of diplomacy between
Europeans and indigenous peoples, the treaty functioned as an agreement between the
respective societies. Moreover, [t]he hallmark of a treaty is the fact that it deals with

120 In addition to all of the above discussion on this point, see Paul L.A.H. Chartrand, The
Aboriginal Peoples in Canada and Renewal of the Federation in K. Knop et al., eds., Rethinking
Federalism: Citizens, Markets, and Governments in a Changing World (Vancouver: UBC Press, 1995)
119 at 122-23 [footnotes omitted]:

Aboriginal rights are by their nature group rights, in the sense that they inhere in the
individual not as a result of his or her personal existence, but as a result of his or her
membership in the group. The widespread failure to appreciate this point is evidenced
by the common reference in Canada to persons of Aboriginal ancestry. This
terminology fails to acknowledge that it is not personal antecedents per se which
determine the present identity of any particular individual. …
One of the most pervasive notions in Canada is that Aboriginal peoples comprise a
racial minority, and that they are not distinct peoples entitled to political liberty and
equality with other peoples. … [But] Aboriginal peoples are not arguing in favour of
maintaining biological purity, but in favour of maintaining cultures.

B. OLTHUIS COMMUNITY IN THE CONTEXT OF SECTION 35

2009]

the rights of the whole nation concerned.121 Why should the successor of the
European side of these bargainsall of modern non-Aboriginal Canadabe
permitted to naturalize members while the successors to the indigenous sidetodays
Aboriginal peoplesare not? Intuitively, this makes little sense. To make use of
personal example, I was born in Edmonton, which is situated on lands that were the
subject of Treaty 6 in 1876. At the time the treaty was concluded, none of my
ancestors were yet in the area and, in fact, none even lived in Canada. Yet when I was
born, I was automatically entitled, as a subject of the Crown, to benefit from the then
nearly hundred-year-old treaty. Why could I do so? Bluntly, because Canadian
citizenship is not simply an heirloomthe state grants it to persons it deems worthy,
in accordance with its naturalization laws.
Any approach that would put the onus on Aboriginal groups to adduce evidence
that their forebears observed a given naturalization practice or custom is one that
begins from a presumption of frozen rights. The better view is to respect Aboriginal
peoples as peoples, accepting that a necessary incident of community is its fluidity.
As a society, Canada must not allow red herrings such as the concern that
Aboriginal communities will grant membership to a host of new individuals, thus
taxing already scarce resources, to deter it from making this recognition.122

121 Sbastien Grammond, Aboriginal Treaties and Canadian Law (1994) 20 Queens L.J. 57 at 61.
Also highly relevant to the discussion in this paper is Williams, Linking Arms (supra note 93 at 47-48),
where Professor Williams presents the treaty as a normative universe of shared meanings created by
two different peoples in order to commit them to live according to a shared legal tradition.

122 In Chevrier (supra note 10 at 130-31), after holding that a mixed-blood descendant of a
Robinson Treaty signatory (who was not recognized under the Indian Act, supra note 8) had inherited
the treaty right to hunt, Justice Wright took pains to state:

To those who are concerned that this decision may lead to the destruction of our
wildlife resources I can only say:
1. This decision will not lead to unrestricted hunting by everyone claming to have
an Indian ancestor because relatively few, other than status Indians, will be able
to prove their descent from a signatory tribe,

2. The whites who rely upon these resources must do so recognizing that these

resources have come to them subject to prior claims,

3. Although provincial law cannot negate these treaty rights the federal
government may still retain the power to regulate the exercise of these rights for
the good of everyone,
In the final analysis, everyone with a legitimate interest in the continuation of
our wildlife resources must agree upon the proper management of these
resources. If this is not done we may see animals such as the moose melt from
our forests as has the woodland caribou.

I would echo this sentiment in respect of another concern that one sometimes hears voiced,
particularly in the Indian Act context: namely, that increased numbers of recognized Aboriginal
persons will lead to increased fiscal burdens on the federal government. Among other things, this
unjustifiably and wrongfully presumes that Aboriginal peoples are unwilling or unable to seek self-

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Aboriginal and non-Aboriginal peoples undoubtedly have a joint interest in
conservation of land and resources. There will almost certainly be tension if a large
number of individuals become accepted as members of Aboriginal communities, but
our approach to this issue should not be determined by ex ante and uninformed
presumptions that the Aboriginal peoples will exercise their power in error. If
anything, communities that have shown strength and resilience in the face of
prolonged assimilatory efforts are likely to be extremely judicious in selecting only
members who can demonstrate commitment to the indigenous social order, thus
maintaining the inter-societal nature of Aboriginal rights.123

The second concluding point implicates the substantive test for recognizing
section 35 rights themselves. Much has been written regarding the weaknesses in the
Courts approach in Van der Peet.124 In my view, however, the primary error in Chief
Justice Lamers methodology is that he moved away from the fact that Aboriginal
rights arise from Aboriginal peoples being peoples. Rather, he held, [s]ection 35(1),
it is true, recognizes and affirms existing aboriginal rights, but it must not be
forgotten that the rights it recognizes and affirms are aboriginal.125

The remainder of the Chief Justices reasons are best understood as an attempt to
place a definition on the term Aboriginal, and to craft an approach to section 35 in
which all that falls outside the set of presumed Aboriginal characteristics also falls
outside of constitutional protection.126 That is, his conclusion as to the appropriate test
for proving an Aboriginal right, and his elaboration of some ten factors to be
considered in application of the test, were but incidents of the initial determination
that section 35 protects some core of Aboriginality. The culmination of all this was
the Chief Justices declaration that, in order to be an aboriginal right an activity must
be an element of a practice, custom or tradition integral to the distinctive culture of
the aboriginal group claiming the right,127 these practices, customs, and traditions

sufficiency, and ignores the fact that with increased numbers come increased strains on the Aboriginal
communitys resources as well (i.e., it does not automatically follow from Aboriginal peoples
controlling their own membership that there would be an incentive towards unrestrained growth).

123 I leave for another day the more difficult question of whether Canadian law ought to recognize

any fetters on an Aboriginal communitys ability to deny membership to any individual persons.

124 See e.g. Barsh & Henderson, supra note 91; John Borrows, Frozen Rights in Canada:

Constitutional Interpretation and the Trickster (1997) 22 Am. Indian L. Rev. 37.
125 Van der Peet, supra note 29 at para. 17, Lamer C.J.C. [emphasis in original].
126 See also Borrows critique of Van der Peet in Recovering Canada, supra note 13 at 56ff.
127 Van der Peet, supra note 29 at para. 46, Lamer C.J.C. Over the course of his reasons, the Chief
Justice begins to use the word distinctive not in reference to the culture of the Aboriginal society
under consideration, but rather in reference to the specific constituent practices, customs, and
traditions (see e.g. para. 71). Thus, his conception of Aboriginal rights is further narrowed: not only
must the particular practice, custom or tradition be integral to the distinctive Aboriginal culture, but it
must be a central and significant part of the culture (at para. 55), and distinctive unto itself. It must
be one of the things that truly made the society what it was (ibid. [emphasis in original]).

B. OLTHUIS COMMUNITY IN THE CONTEXT OF SECTION 35

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requiring continuity with those that existed prior to contact between aboriginal and
European societies.128

Inevitably, and with respect, this caricatures Aboriginal societies. In the judicial
context, at least, it involves a (usually) non-Aboriginal decision maker identifying
superficial differences between Aboriginal and non-Aboriginal societies. It also
downplays the manner and extent of things that human communities represent for
their members.
Had the Chief Justices approach commenced instead from the collective nature
of Aboriginal rights, the recognition of the same might have fallen to be determined
on the more defensible ground of whether there was a genuine conflict between
Aboriginal and non-Aboriginal legal ordersone that required resort to the sui
generis body of inter-societal law for its resolution.
I suggest that there is reason to reconsiderand, ultimately, to rejectthe Van

der Peet integral to the distinctive culture test. Aboriginal rights, after all, are about
much more than the preservation of cultural customs as a device to encourage
individual or collective flourishing. They are the means by which the peoples who
arrived in Canada over the course of the past 500 years relate to and interact with the
peoples who were already here. The doctrine provides a process towards inter-societal
accommodation. It should surely attempt this on as broad and robust a basis as
possible if it is to function effectively and nobly as the vehicle through which an
accommodating future with the First Peoples is to be achieved.

128 Ibid. at para. 60, Lamer C.J.C.

The Constitution's Peoples: Approaching Community in the Context of Section 35 of the Constitution Act, 1982

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