The “Golden Thread” of Continuity:
Aboriginal Customs at Common Law and
Under the Constitution Act, 1982
Mark D. Walters*
In this article, the author considers the relation-
ship between the common law status of Aboriginal
customs and the constitutional status of Aboriginal
rights under section 35(l) of the Constitution Act,
1982. It is argued that British imperial and colonial le-
gal precedent provides a basis for a modem interpreta-
tion of Aboriginal rights that recognizes Aboriginal
customary laws and government. The common law
“principle of continuity” under which Aboriginal cus-
toms were recognized was employed by judges in order
to respect the separation of powers, the rule of law, and
fairness, and was not primarily concerned with pre-
serving distinctive cultures. Although Australian courts
have re-interpreted common law history to secure a
modern theory of Native title, the Supreme Court of
Canada in recent cases has chosen to reject the com-
mon law foundation of Aboriginal rights, choosing in-
stead to develop a theory of Aboriginal rights from first
principles. While the Court’s rejection of restrictive im-
perialcolonial legal precedent is admirable, the author
argues that the Court’s “integral to a distinctive culture”
test actually secures a narrower range of Aboriginal
customs than that secured by common law.
Dans cet article, ‘auteur examine la relation entre
le statut des coutumes aboriganes sous la common law
et le statut constitutionnel des droits aboriganes sous
l’article 35(1) de la Loi constitutionnelle de 1982. I1 est
soumis que le prdcdent anglais imrp&ial et colonial
fournit un fondement pour une interpretation moderne
des droits aboriganes qui reconnaltrait les lois coutu-
miares et le gouvernement aborigines. Le <
aboriganes ont 66 reconnues a 6t6 employ6 par les ju-
ges afin de respecter la s6paration de pouvoirs, la pri-
maut6 du droit et l’6quit6. I1 n’avait pas pour but pri-
maire de prdserver des cultures distinctes. Bien que les
tribunaux australiens aient reconnu, dans l’histoire de la
common law, l’intention d’assurer une throrie moderne
de titres indiganes, la Cour Supreme du Canada, dans
des arrats racents, a choisi de rejeter le fondement en
common law des droits aboriganes, pour d~velopper
une th~orie de droits aboriganes A partir de principes
primaires. Alors que ce rejet du prdcedent impdrial et
colonial soit admirable, l’auteur soumet qu’en exami-
nant si une coutume fait ,partie intrgrante de ]a culture
distinctive>), la Cour assure une catdgorie de coutumes
aboriganes qui est plus 6troite que celle assure par la
common law.
“Faculty of Law, Queen’s University. This article is a based upon a paper given by the author at the
“Empires, Colonies, Legal Cultures” conference organized by the Australian and New Zealand Law
and History Society and the Canadian Law and Society Association, held in Melbourne, Australia on
July 3-5, 1998. The author would like to thank participants in the conference for their helpful
comments.
McGill Law Journal 1999
Revue de droit de McGill 1999
To be cited as: (1999) 44 McGill L.J. 711
Mode de rrf&ence : (1999) 44 R.D. McGill 711
712
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 44
Introduction
1. The British Imperial Common Law Principle of Continuity: Its Forms
and Justifications
Inclusive and Exclusive Common Law Continuity
A.
B. Imperial and Municipal Common Law Continuity
C. Discontinuity
D. Common Law Justifications for Continuity
1. Precedent and Past Practice
2. The Separation of Powers
3. The Rule of Law (or Necessity)
4. Fairness and Humanity
II. Articulating a Modern Theory of Aboriginal Rights-Judicial
Invention or (Re)lnterpretation?
A. Mabo and the “Normative Common Law” Interpretative Method
B. Recent Canadian Cases: Detaching Constitutional Aboriginal Rights
from Common Law History
1. The Theory of Continuity in Van der Peet
2. The Theory of Continuity in Delgamuukw
3.
Identifying the Jurisprudential Basis of the Van der Peet Concept
of Continuity
4. Reconciling the Imperial Common Law Principle of Continuity with
the Van der Peet Concept of Continuity
Conclusion
1999]
M.D. WALTERS – ABORIGINAL CUSTOMS
The history of the interface of Europeans and the com-
mon law with aboriginal peoples is a long one. As
might be expected of such a long history, the principles
by which the interface has been governed have not al-
ways been consistently applied. Yet running through
this history, from its earliest beginnings to the present
time is a golden thread-the recognition by the com-
mon law of the ancestral laws and customs [of] the
aboriginal peoples who occupied the land prior to
European settlement.
McLachlin J., from her dissenting opinion
in R. v. Van der Peet.
Introduction
For historians interested in law and lawyers interested in history, the recent re-
emergence and revitalization of the common law doctrine of Aboriginal rights in
Canada, Australia, and New Zealand is significant.’ In each of these jurisdictions,
judges have sought to accommodate appropriate modem-day responses to Aboriginal
claims-which are largely historical in nature-within the common law-which is
(paradoxically) both historical and ahistorical in orientation. The resulting doctrine of
“common law Aboriginal rights” is itself a paradox: it involves, among other things,
judicial (re)interpretation and (re)application of imperial and colonial legal precedents
in a post-imperial and post-colonial setting to secure Aboriginal rights that were often
denied by imperialism and colonialism
Playing a central but ambiguous part in this reinvigorated common law doctrine
of Aboriginal rights is the idea of “continuity”. At least three different and distinct
sorts of continuity can be identified within the doctrine. First, the law is concerned in
some way with the continuity of Aboriginal “identities”. These identities (national,
cultural, political, and/or legal), and their concomitant territorial foundations (the
lands and resources upon which they were based) pre-dated colonialism, survived (de
facto at least) colonialism and, it is argued, ought to be recognized and protected to-
day. Second, judges seek to achieve a sense of continuity of “legal rules and princi-
ples”: true to the common law tradition, they prefer to locate the legal genesis of to-
‘The landmark decisions confirming the common law foundation of Aboriginal rights are: in Can-
ada, Calder v. British Columbia (A.G.), [1973] S.C.R. 313, 34 D.L.R. (3d) 145 [hereinafter Calder
cited to S.C.R.]; in New Zealand, Te Weehi v. Regional Fisheries Officer, [1986] 1 N.Z.L.R. 680
(H.C.), online: LEXIS (NZINZCAS) [hereinafter Te Weehi]; and in Australia, Mabo v. Queensland
(No. 2) (1992), 107 A.L.R. 1, 175 C.L.R. 1 (H.C.) [hereinafter Mabo cited to A.L.R.].
2 See e.g. Williams v. Minister Aboriginal Land Rights Act 1983 (1994), 35 N.S.W.L.R. 497 at 515
(C.A.), online: LEXIS (AUST/AUSMAX), Kirby J.: “The law which has often been an instrument of
injustice to Aboriginal Australians can also, in proper cases, be an instrument of justice in the vindi-
cation of their legal rights”; and J. Borrows & L.I. Rotman, “The Sui Generis Nature of Aboriginal
Rights: Does it Make a Difference?” (1997) 36 Alta. L. Rev. 9 at 27, arguing that the common law
can be “re-forged to accommodate Aboriginal cultures.”
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
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day’s Aboriginal rights in old judicial precedent. Third, the law of Aboriginal rights is
concerned in some way with “inter-systemic” continuity: common law Aboriginal
rights derive, in part, from the continuity of Aboriginal customary legal systems, or at
least elements of them, within non-Aboriginal legal systems.
The purpose of this article is to consider the ways in which judges have attempted
to acknowledge continuity in the first sense-continuity of identities-by recognizing
continuity in the third sense-inter-systemic legal continuity-and the extent to
which, in doing so, they have adopted or rejected continuity in the second sense-in-
ternal continuity of rules and principles within the common law. Part I begins by ex-
amining the general ways in which British law in the seventeenth, eighteenth, and
nineteenth centuries recognized the local laws and customs of nations that, by consent
or force, were added to the British empire, with particular emphasis on the common
law justifications for judicial recognition of local law and custom. Part II considers re-
cent cases from Australia and Canada that illustrate divergent approaches to continu-
ity of Aboriginal customary law and, indeed, divergent ideas about the relationships
between past and present law and between past and present cultural identities. Par-
ticular focus will be placed upon recent Supreme Court of Canada decisions that, ar-
guably, articulate Aboriginal rights as historical-cultural rights by detaching the law
from its historical common law foundations. The conclusion drawn is that there are
good reasons for having regard to “legal” arguments about colonial and imperial legal
history when articulating a theory of Aboriginal rights suitable for the present post-
colonial and post-imperial world.
I. The British Imperial Common Law Principle of Continuity: Its
Forms and Justifications
Imperialist powers were not always interested in exporting their municipal laws to
the nations they subjugated. Indeed, the political hegemony of an empire often de-
pended upon an imperial constitution premised upon legal pluralism. This was the
case for the British empire: under the umbrella of Crown sovereignty, distinct nations
and national institutions, and laws and customs proliferated. Of course, when imperi-
alism was accompanied by colonialism-i.e., the settlement of British peoples within
subjugated territories-English municipal lav was usually introduced, and some set
of principles governing the relationship between local law and English law was
necessary.
Judges did not often distinguish between “imperial” and “municipal” law, but that
distinction was of critical importance to their articulation of these principles. As Coke
C.J. observed in the early seventeenth century, England and its imperial possessions
were governed internally by “several and distinct municipal laws.”‘ The legal rules
governing the relationship between these municipal legal components and the asser-
tion of sovereignty over new components derived not from English municipal law, but
Calvin’s Case (1608), 7 Co. Rep. la at 19b, 77 E.R. 377 (K.B.) [hereinafter cited to Co. Rep.].
1999]
M.D. WALTERS – ABORIGINAL CUSTOMS
from a separate body of law. Seventeenth-century judges were clear in this respect:
“When the question is of the jurisdiction in a dominion or territory belonging to Eng-
land, the way to determine it is by examining the law in dominions” not law “within
the realm [of England] ‘ The law relating to the Crown’s dominions was later called
“the law of empire”‘ or the law of “the British colonial empire'” and can therefore be
called imperial law.
Imperial law often derived from prerogative or parliamentary legislation, but cer-
tain important imperial legal principles were developed by judges and may therefore
be called principles of “imperial common law”. In relation to the substantive content
of the municipal laws governing distinct components of the empire, the imperial
common law provided that: (i) in uninhabited territories acquired by discovery and
occupation or settlement, settlers were presumed to be governed by English municipal
law as their “birthright”, as adjusted to local conditions;7 and (ii) in inhabited territo-
ries acquired by conquest or cession, Parliament or the Crown could abrogate or alter
local law, but until this power was exercised, local laws, institutions, customs, rights,
and possessions remained in force.!
This latter presumption may be called the “principle of continuity”.! It is this prin-
ciple that is said to represent at least one of the pillars supporting the common law
doctrine of Aboriginal rights.'”
4Process
into Wales (1670), [1668-74] Vaugh. 395 at 418, 124 E.R. 1130 (K.B.) [hereinafter cited
to Vaugh.] [emphasis added].
‘ Campbell v. Hall, [1774] Lofft. 655 at 682, 98 E.R. 848 (K.B.) [hereinafter Campbell cited to
Lofft.].
6 The Queen v. Symonds (1847), [1840-1932] N.Z.P.C.C. 387 (S.C.) at 393 [hereinafter Symonds].
7 See Blankard v. Galdy (1693), 4 Mod. 215, 91 E.R. 356 (K.B.) [hereinafter Blankard cited to
Mod.]; Dutton v. Howell (1693), Show. 24 at 31 (per counsel), I E.R. 17 (H.L.) [hereinafter Dutton
cited to Show.]; Anon. (1722), 2 P. Wins. 75 (P.C.); Roberdeau v. Rous (1738), 1 Atk. 543, 26 E.R.
342 (Ch.); and W. Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press,
1765-69) vol. I at 106-107.
8 See Calvin’s Case, supra note 3 at 17b; Case of Tanistry (1608), Davis 28 at 30 (per plaintiff), 80
E.R. 516 [hereinafter cited to Davis]; Craw v. Ramsey (1669), 2 Vent. 1 at 4, 86 E.R. 273; Witrong v.
Blany (1674), 3 Keb. 401 at 402, 84 E.R. 789 [hereinafter Witrong cited to Keb.]; Dawes v. Painter
(1674), 1 Freem. 175 at 176, 89 E.R. 126 [hereinafter Dawes cited to Freem.]; Dutton, supra note 7 at
31 (per plaintiff); Blankard, supra note 7 at 225-26; Anon., supra note 7; and Campbell, supra note 5
at 741.
9 Also labelled the “doctrine of continuity” in B. Slattery, Ancestral Lands, Alien Laws: Judicial
Perspectives on Aboriginal Title (Saskatoon: University of Saskatchewan Native Law Centre, 1983) at
1 [hereinafter Ancestral Lands].
‘0 See generally B. Slattery, The Land Rights of Canadian Indigenous Peoples, As Affected by the
Crown’s Acquisition of Their Territory (D.Phil. Thesis, Oxford University, 1979) [unpublished] at 50-
60; Ancestral Lands, ibid. at 10-15; G. Lester, Inuit Territorial Rights in the Canadian Northwest Ter-
ritories (Ottawa: Tungavik Federation of Nunavut, 1984) at 13-15; R McHugh, The Maori Magna
Carta: New Zealand Law and the Treaty of Waitangi (New York: Oxford University Press, 1991) at c.
4 [hereinafter Maori Magna Carta]; and M.D. Walters, “Mohegan Indians v. Connecticut (1705-
716
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The imperial common law principle of continuity was applied by judges in di-
verse circumstances throughout the world and, not surprisingly, it was applied in
somewhat different ways in relation to different peoples and places. However, some
general principles may be derived from the cases. In particular, the cases may be cate-
gorized according to the legal dimension within which the continuity of indigenous
law and custom was said to occur. Although rarely explicit about these matters, the
cases seemed to distinguish between what may be labelled “inclusive” and “exclu-
sive” continuity, and between what may be labelled “imperial” and “municipal”
continuity.
A. Inclusive and Exclusive Common Law Continuity
British judges applied an inclusive principle of continuity. Unlike rules of private
international law that allow judges to apply foreign laws, the principle of continuity
served to incorporate local law as British law.” Local law continued in force “except-
ing in point of [sovereignty]’-i.e., it gained a new sovereign root or “rule of
recognition”.”
The case of Connolly v. Woolrich” is illustrative of this inclusive principle of con-
tinuity. In 1803, a non-Native trader from Quebec, Connolly, married a Cree woman
in British North American territories that, at the time, lay outside the boundaries of
any local colonial government. Connolly later returned to Quebec and married a non-
Native woman to whom he willed his estate. After his death, children from the first
marriage challenged the will in the Quebec courts, arguing that because the first mar-
riage was valid under Aboriginal customary law, the second marriage was invalid.
Monk J. acknowledged that Cree law was “as regards the jurisdiction of this Court”–
i.e., a Quebec colonial court—“a foreign law of marriage,” and was therefore cogni-
zable under the lex loci contractus rule of private international
law.” However,
Monk J. insisted that there was another reason for Quebec courts to recognize and ap-
ply Cree custom. His Lordship said that since no legislative instrument could be found
“abolishing or changing the customs of the Indians”‘” after Britain had acquired sov-
ereignty in 1763, these customs continued in force, and “so long as they are in force
1773) and the Legal Status of Aboriginal Customary Laws and Government in British North Amer-
ica” (1995) 33 Osgoode Hall L.J. 785 at 791-92 [hereinafter “Mohegan Indians”].
1 There are, of course, similarities between private international law and common law incorporation
of local laws in newly acquired territories: see H.A. Amankwah, “Post-Mabo: The Prospect of the
Recognition of a Regime of Customary (Indigenous) Law in Australia” (1994) 18:1 U. Queensland
L.J. 15 at 16.
‘2 Process into Wales, supra note 4 at 400.
‘3 See H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961) at 144-46.
(1867), 17 R.J.R.Q. 75, 11 L.C. Jur. 197 (Qc. Sup. CL) [hereinafter Connolly cited to R.J.R.Q.],
aff’d (sub non. Johnstone v. Connolly) (1869), 17 R.J.R.Q. 266, 1 C.N.L.C. 151 (Qc. Q.B.) [herein-
after Johnstone cited to R.LR.Q.].
‘ Connolly, ibid. at 138.
‘6 Ibid. at 96.
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M.D. WALTERS – ABORIGINAL CUSTOMS
717
as a law in any part of the British empire'” it was incumbent upon British colonial
courts to “acknowledge and enforce them” 7 Thus, Cree marriage custom was applied
not as foreign law but as part of the law of the British empire-there had been inclu-
sive continuity of Aboriginal custom within British law.
In contrast, the exclusive principle of continuity provides that local laws and in-
stitutions remain in force after the assertion of British sovereignty not as elements of
British law, but as foreign legal systems. The idea of exclusive continuity derives from
American judicial interpretations of Crown practice and policy in North America.
American courts concluded that upon the discovery of North America, the British
Crown acquired property and territorial sovereignty in all lands,” as well as the sole
right as between European states to extinguish-by conquest or cession-Aboriginal
rights to self-government and land.” Although English law was presumed to apply
within settler communities,’ Indians remained distinct, self-governing nations with
limited rights of sovereignty.’ British (and later American) territorial sovereignty and
Native “tribal” sovereignty co-existed.’ Judicial recognition of “tribal sovereignty”
was based on “the general principle that ‘[i]t is only by positive enactments, even in
the case of conquered and subdued nations, that their laws are changed by the con-
queror”‘ — i.e., the common law principle of continuity. However, unlike British im-
perial law, which provided that conquest did not by itself affect existing laws or insti-
‘Ibid.
at 138.
“Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823) at 595-96, online: WL (ALL CASES-
OLD) [hereinafter M’Intosh]; Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810), online: WL (ALL
CASES-OLD) [hereinafter Fletcher]; and Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831) at
22, online: WL (ALL CASES-OLD) [hereinafter Cherokee Nation].
” M’Intosh, ibid. at 573, 589; Fletcher, ibid. at 142-43, 147; and Worcester v. Georgia, 31 U.S. (6
Pet.) 515 (1832) at 544, 580, online: WL (ALL CASES-OLD) [hereinafter Worcester].
20 Commonwealth v. Knowlton, 2 Mass. Rep. 530 (Sup. Ct. 1807) at 534, online: WL (ALL
CASES-OLD); Town of Pawlet v. Clark, 13 U.S. (9 Cranch.) 292 (1815) at 333, online: WL (ALL
CASES-OLD); and Van Ness v. Pacard, 27 U.S. (2 Pet.) 137 (1829) at 144, online: WL (ALL
CASES-OLD).
“‘ Fletcher, supra note 18 at 147; M’Intosh, supra note 18 at 587-89; Cherokee Nation, supra note
18 at 16; and Worcester, supra note 19 at 542-43.
” Cherokee Nation, ibid. at 27, Johnson J.: “Though without land that they can call theirs in the
sense of property, their right of personal self-government has never been taken from them; and such a
form of government may exist though the land occupied be in fact that of another.” See also Goodell
v. Jackson, 20 Johns. 693 (N.Y. Ct. of Errors 1823) at 714,717, Kent J. [hereinafter Goodell]: “[M]ere
territorial jurisdiction” of Britain is not inconsistent with continuity of “Indian sovereignty” [emphasis
in original]; Fletcher, supra note 18 at 147, Johnson J.: “Jrlheir sovereignty” was limited insofar as
Britain (and the United States) had the right to govern others “within their limits except themselves”;
and Worcester, supra note 19 at 580, McLean J.: Natives did not have “sovereignty of the country”
but had “attributes of sovereignty” or “self-government”.
2 N. Margold, Opinions of the Solicitor of the Department of the Interior Relating to Indian Af-
fairs, 1917-1974, vol. 1 (Washington: Government Printing Office, 1974) at 448; and F Cohen,
Handbook of Federal Indian Law (Washington: Department of the Interior, 1945) at 122: both
authors quoting Wall v. Williamson, 8 Ala. 48 (Sup. Ct. 1845) at 51, online: WL (AL-CS).
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 44
tutions that continued in force “excepting in point of [sovereignty],” American law
provided that “[c]onquest … [did] not by itself affect the internal sovereignty of the
tribe:” The reason for this “new and different” rule was that Indians were regarded as
“fierce savages” incapable of being incorporated within British or American legal
systems.26 The new rule, then, regarded Native peoples as aliens, and Native laws as
foreign as long as Indians retained possession of their lands. Neither Natives nor set-
tlers placing themselves “under their protection, and subject to their laws” could com-
plain about the application of Aboriginal customary law in the non-Native courts.”
Even after commencement of treaty relations and settlement of Indian nations within
reservations, the doctrine of tribal sovereignty continued to inform judicial ap-
proaches to Aboriginal customary law. When questions about Native customary law
arose in cases otherwise subject to the jurisdiction of state courts, these courts applied
Aboriginal custom not as elements of American law, but pursuant to private interna-
tional law as elements of foreign legal systems.’
B. Imperial and Municipal Common Law Continuity
In addition to the inclusive/exclusive distinction, a distinction may be drawn be-
tween continuity in the imperial and municipal legal dimensions. Under the exclusive
principle of continuity, local law remained in force as a distinct municipal legal sys-
tem outside the imperial constitution. Under the inclusive principle of continuity, local
law continued in force in one of two legal dimensions: (i) as a distinct municipal legal
system within the imperial constitution, or (ii) as an element of another municipal
system within the imperial constitution. The former sort of continuity is imperial con-
tinuity and the latter, municipal continuity. Thus, when the assertion is made that Na-
tive custom “continued in force at common law,” it is not necessarily the case that
Native custom continued as part of the municipal common law introduced into a col-
ony for settlers; it may have continued in force at imperial common law as a munici-
pal system in its own right.
Inclusive continuity in the imperial dimension was assumed whenever Britain as-
serted sovereignty over another European people. In such a case, British arrivals within
24 Process into Wales, supra note 4 at 400.
Margold, supra note 23 at 449.
26 M’Intosh, supra note 18 at 589-91.
2′ Ibid. at 593-94. See Worcester, supra note 19 at 581, McLean J.: in applying “their own laws”
Natives were “responsible to no earthly tribunal”; and at 546-47, 555, Marshall C.J. See also Goo-
dell, supra note 22 at 710-17; Jackson v. Hudson, 3 Johns. 375 (Ch. 1808) at 384; Jackson v. Wood,
7 Johns. 290 (Ch. 1810) at 295; State v. Ross, 15 Tenn. 44 (1834) at 46; Elk v. Wilkins, 112 U.S. 94
(1884), online: WL (ALL CASES-OLD); and C. Cushing (Attorney-General), “Relation of Indians
to Citizenship” (1856) 7 Ops. Att. Gen. 746.
2 Holland v. Pack, 7 Tenn. 157 (C.A. 1823); Morgan v. M’Ghee, 24 Tenn. 5 (Sup. Ct. 1844) at 6-7;
Johnson v. Johnson’s Administrator, 77 Am. Dec. 598 (Mo. Sup. Ct. 1860) at 603; Earl v. Godley,
44 N.W. 254, 42 Minn. 361 (Sup. Ct. 1890); and McBean v. McBean, 61 Pac. 418, 37 Or. 195 (Sup.
Ct. 1900).
1999]
M.D. WALTERS – ABORIGINAL CUSTOMS
719
the territory lived under the same local municipal legal system that continued in force for
local inhabitants. ‘ However, when Britain asserted sovereignty over non-Christian peo-
ples, nineteenth-century courts concluded that, within their colonial enclaves, settlers
were not subject to the local law that remained in force as the municipal legal system of
Natives within Native communities; rather, English municipal law applied. Thus, cases
from North America 3′ and India3′ suggest that in these circumstances, judges might pre-
sume the existence of two parallel municipal systems in the relevant territory.
The common law presumption of continuity of local law as a distinct municipal
system in the imperial dimension was rebutted once a legislative instrument extended
English municipal law and institutions over the local community. Thereafter, local law
and custom continued (if at all) as elements of local municipal law. The recognition
of Native customs under these conditions was not unlike the recognition by English
common law in England of local or “particular” customs (like Gavel-kind or Bor-
ough-English) practised since time immemorial.3 Indeed, the continuity of Native
customs under newly introduced English municipal law can be explained by reference
to a hybrid principle that combined elements of both the imperial common law prin-
ciple of continuity and the municipal common law particular-custom rule. In essence,
the municipal particular-custom rule applied, but the normal requirement of immemo-
rial usage was replaced by continuity of law from a preceding legal system. Judicial
support for this hybrid rule derives from Wales’ and Ireland.3
Campbell, supra note 5 at 741.
o Connolly, supra note 14 at 84: in general, English law applied as settlers’ birthright in newly dis-
covered uninhabited territories, but in North America, English law would only apply within “trading
posts” and would not serve to abrogate “the territorial rights, political organization … or the laws and
usages of the Indian tribes” See “Mohegan Indians”, supra note 10, in which various imperial courts,
including the Privy Council, suggested that the Mohegan nation within the colony of Connecticut was
a distinct municipal system separate from Connecticut municipal law and courts. See also B. Clark,
Native Liberty, Crown Sovereignty: The Existing Aboriginal Right of Self-Government in Canada
(Montreal & Kingston: McGill-Queen’s University Press, 1990) at c. 1.
“‘ See Freeman v. Fairlie (1828), 1 Moore Ind. App. 305, 18 E.R. 117 (P.C.) [hereinafter Freeman
cited to Moore Ind. App.]; In re Justices of Bombay (1829), 1 Knapp. 1 at 31-32, per counsel, 12 E.R.
222 (PC.); C. Pratt. (Attorney-General) & C. Yorke (Solicitor-General) in G. Chalmers, ed., Opinions
of Eminent Lawyers, on Various Points of English Jurisprudence, Chiefly Concerning the Colonies,
Fisheries, and Commerce of Great Britain, vol. 1 (London: Reed & Hunter, 1814) 195; Sir C.P. Ilbert,
The Government of India, Being a Digest of the Statute Law Relating Thereto, 2d ed. (Oxford:
Clarendon Press, 1905) at 39-59, 490-94, 511,514-15; and Maori Magna Carta, supra note 10 at 83-
97.
3Maori Magna Carta, ibid. at 92-93.
3Blackstone, supra note 7 at 76-79. See e.g. Blankard, supra note 7 at 225: local laws continued
until English law was introduced, but “even then some of their old customs may remain.”
‘ See Anon. (1579), 3 Dyer 363b where Welsh law remained in force as a distinct municipal system
after the English conquest. By Act of Union, 1536 (U.K.), 27 H. VIII, c. 26, however, Wales was uni-
fied with England and English law extended into Wales. Nevertheless, it was held that certain Welsh
customs could continue in force because they were “agreeable to some customs in England” and be-
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Vol. 44
Although the imperial common law principle of continuity forms part of this hy-
brid principle, the dimension within which Native customs are recognized is clearly
municipal, not imperial. Nevertheless, the imperial character of the principle of conti-
nuity continues to inform a custom’s status at the municipal level. Since the custom
derives legitimacy not from immemorial usage but from a preceding legal regime, it
may be capable of alteration by the Native community within which it applies. In
other words, English municipal law, as adjusted to local conditions, may recognize
elements of Native self-government. According to Paul McHugh, the distinction be-
tween Native custom in a colonial setting and particular custom in England is illus-
trated by Hineiti Rirerire Arani v. Public Trustee of New Zealand, in which Lord Phil-
limore stated in relation to Maori adoption custom:
[T]he [Native] Appellate Court said [in a 1906 case]: “It is, however, abun-
dantly clear that Native custom, and especially the Native custom of adoption,
as applied to the title of lands derived through the Court, is not a fixed thing. It
is based upon the old custom as it existed before the arrival of Europeans, but it
has developed, and become adapted to the changed circumstances of the Maori
race of today:’
It may well be that this is a sound view of the law, and that the Maoris as a race
may have some internal power of self-government enabling the tribe or tribes
by common consent to modify their customs, and that the custom of such a
race is not to be put on a level with the custom of an English borough or other
local area which must stand as it always has stood, seeing that there is no quasi-
legislative internal authority which can modify it.’6
In other words, the abrogation of Native law as a distinct municipal system within
the Empire did not necessarily imply the abrogation of Native law as a distinct sys-
tem. Native systems might have gained recognition under English municipal com-
mon law.
cause English law was “to be ministered in like form as in this realm” (Case of Tanistry, supra note 8
at 40).
” In Case of Tanistry, ibid. at 30, the plaintiff argued that the principle of continuity articulated in
Calvin’s Case, supra note 3 at 17b, supported the proposition that the Irish custom of “tanistry” con-
tinued in force after the English conquest .of Ireland, and that this custom could survive the subse-
quent legislative introduction of English municipal law into Ireland, and be recognized by that law, on
the same grounds that the custom of Gavel-kind was recognized in Kent by English common law. In
the end, the plaintiff lost because tanistry was regarded as too uncertain to govern the descent of
property.
16 (1919), [1920] A.C. 198, [1840-1932] N.Z.P.C.C. 1 (P.C.) at 6 [footnotes omitted] [hereinafter
Hineiti cited to N.Z.P.C.C.]. Local legislation did require courts to have regard to Maori customs re-
lating to land, but this does not alter the relevance of the quoted comment to situations where Native
custom only had common law status: see P McHugh, The Aboriginal Rights of the New Zealand
Maori at Common Law (Ph.D. Thesis, Cambridge University, 1987) at 179-80 [unpublished].
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M.D. WALTERS – ABORIGINAL CUSTOMS
C. Discontinuity
Many judges refused to accept that the laws and customs of non-Christian, non-
European peoples could be recognized and applied as British laws by British courts.
At the time when colonists first began heading for North America, Coke C.J. insisted
that upon conquest all “infidel” laws were ipso facto void as contrary to the “deca-
logue” 7 Although the common law attitude to “infidel” law was later modified-Holt
C.J. concluded that only infidel laws contrary to the law of God ceased automati-
cally 3 -a second ground for discontinuity developed. By the nineteenth century, it
became increasingly common for judges to say that the customs of tribal peoples were
“barbarous”, “savage”, or “uncivilized” and incapable of recognition at common law,
and that therefore there was no common law Aboriginal right to lands, resources, or
customs?9 Discontinuity is now regarded as a detour from proper common law princi-
ples that certain judges in Canadae’ and New Zealand,” and all judges in Australia,”
took until fairly recently.
Having examined the ways in which judges acknowledged (and did not acknowl-
edge) local law and custom, it is now necessary to consider in more detail the justifi-
cations for the principle of continuity.
D. Common Law Justifications for Continuity
So common was imperialist recognition of local laws and institutions that the
policy was regarded as a principle of thejus gentium. Citing Roman practice, Grotius
stated that although a conquering power could impose new laws upon a subjected
37 Calvin’s Case, supra note 3 at 17b. See also Witrong, supra note 8 at 402; and East-India Co. v.
Sandys [1683-85] 10 St. Tr. 371 at 374-75, per counsel. Coke C.J.’s dicta were applied to Aboriginal
law in the United States in Cornet v. Winton’s Lessee, 10 Tenn. 129 (Sup. Ct. 1826) at 137, and State
v. Foreman, 16 Tenn. 171 (Sup. Ct. 1835) at 177.
3 Blankard, supra note 7.
31 See R. v. Billy William (Demerara and Essequibo, 183 1), reprinted in U.K. Parliamentary Papers,
vol. 44, No. 617 at 180; MacDonald v. Levy (1833), 1 Legge 39 at 45 (N.S.W. Sup. Ct.); R. v. Jack
Congo Murrell (1836), 1 Legge 72 (N.S.W. Sup. Ct.); G. Grey, “Report Upon the Best Means of
Promoting the Civilization of the Aboriginal Inhabitants of Australia (1840)” in Historical Records of
Australia, vol. 21 (Sydney: Commonwealth Parliament, 1924) 34; Wi Parata v. Bishop of Wellington
(1877), 3 N.Z. Jur. (N.S.) 72 (S.C.) at 77 [hereinafter W Parata]; Cooper v. Stuart (1889), 14 A.C.
286 at 291, 58 L.J.P.C. 93 (P.C.); Milirrpum v. Nabalco Pty Ltd. (1971), 17 F.L.R. 141 (N.T.S.C.) at
201, [1972-73] A.L.R. 65 [hereinafter Milirrpum]; and Coe v. Commonwealth of Australia (1979), 24
A.L.R. 118 at 129 (H.C.), online: LEXIS (AUST/AUSMAX).
40 Whereas Connolly, supra note 14, recognized Aboriginal customary law and institutions, in Do-
dem Sheldon v. Ramsay (1852), 9 U.C.Q.B. 105 at 123, Robinson C.J. appeared in obiter to reject the
possibility of recognition, saying “the common law is not part savage and part civilized.”
“, Whereas Symonds, supra note 6, confirmed common law Maori rights, Wi Parata, supra note 39,
later denied them. See P. McHugh, “Aboriginal Title in New Zealand Courts” (1984) 2 Canterbury L.
Rev. 235.
4 See Milirrpum, supra note 39.
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people, the decision to leave in place their own laws and government was “not only an
act of humanity, but often an act of prudence also.” Although the common law prin-
ciple of continuity was often traced to the jus gentium, ” Grotius’s rationale for conti-
nuity is really one of legislative policy rather than justiciable principle. It is therefore
important to identify the common law juridical foundations for the principle of conti-
nuity-i.e., the reasons behind continuity that would have been compelling to judges
as opposed to legislators. Four general common law justifications for the principle of
continuity may be identified.
1. Precedent and Past Practice
It can be argued that no better reason exists for a common law judge to apply a
particular principle or rule of law than the fact that other judges have done so in simi-
lar cases in the past. If so, then the principle of continuity is on solid common law
footing. Solicitor-General Sir Francis Bacon asserted in 1608 that there were “many
ancient precedents” for the principle of continuity. ‘ Indeed, cases in which it was ap-
plied date from the dawn of the common law itself: the principle was applied to the
status of Saxon rights after the Norman conquest.” Seventeenth-century courts did not
” H. Grotius, “De Jure Belli Ac Pacis Libri Tres” in J.B. Scott, ed., Classics of International Law,
trans. F.W. Kelsey (Oxford: Clarendon Press, 1925) bk. 3 at c. 8, pt. 1, para. 1; see also c. 15, pts. 9,
10, and c. 8, pt. 4.
‘4Case of Tanistry, supra note 8 at 30 (per plaintiff); Campbell, supra note 5 at 698, per defendant;
The King v. Picton (1812), 30 St. Tr. 225 at 906 (P.C.) (per Crown counsel) [hereinafter Picton]; F.
Maseres (Attorney-General of Quebec), ‘A Supplement to the Tract written in the year 1766, and in-
tituled Considerations on the Expediency of Procuring an Act of Parliament for the Settlement of the
Province of Quebec” Public Record Office (London, U.K.), Colonial Office 42/87:91; J. Marriott
(Advocate-General), Plan of A Code of Laws for the Province of Quebec (London, 1774) at 12;
Opinion of E. Thurlow (Attorney-General) (22 January 1773) in A. Shortt & A.G. Doughty, eds.,
Documents Relating to the Constitutional History of Canada, 1759-1791 (Ottawa: The King’s Printer,
1918) 440 at 443; Stuart v. Bowman (1851), 2 L.C.R. 369 (Sup. Ct.) at 408-09, Mondelet J.; and
Johnstone, supra note 14 at 276-78.
‘ The Argument of Sir Francis Bacon, Knight, His Majesty’s Solicitor-General, In the Case of
the Post-Nati of Scotland, In the Exchequer Chamber, before the Lord Chancellor, and all the
Judges of England” in J. Spedding, R.L. Ellis & D.P. Heath, eds., The Works of Francis Bacon, vol.
7 (London: Longman, Green & Co., 1859) 660. See also A.F. McC. Madden, “1066, 1776 and All
That: The Relevance of English Medieval Experience of ‘Empire’ to Later Imperial Constitutional Is-
sues” in J.E. Flint & G. Williams, eds., Perspectives of Empire: Essays Presented to Gerald S. Gra-
hamn (London: Longman, 1973) 9.
6 See Witrong, supra note 8 at 402; Earl of Derby v. Duke of Atholl (1751), 2 Vesey sen. 337, 28
E.R. 217; and Case of Ship-Money (1637), 3 St. Tr. 826 at 1214-15, 1021. For arguments about the
continuity of the Saxon Constitution after the Norman conquest, see M. Hale, The History of the
Common Law, 4th ed. (London: W. Strahan & M. Woodfall, 1779), republished (Littleton, Colo.:
Fred B. Rothman & Co., 1987) at 77, 95; F. Plowden, Jura Anglorum: The Rights of Englishmen
(London: E. & R. Brooke, 1792) at 79; and J. Price, A General View of the Laws, Government, Reve-
rnue, Ecclesiastical, Civil, Military, and Naval Establishments of England, 2d ed. (London: G. Sael,
1799) at 20.
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M.D. WALTERS – ABORIGINAL CUSTOMS
723
limit their inquiries to judicial precedent, they were also interested in Crown practice
and usage.’7 Judicial and Crown practice may have been important for their preceden-
tial weight, but they were likely more important as evidence of reasoned approaches
to difficult issues (of natural law and reason) and of the extent to which the reasoned
analyses of thejus gentium in particular had been adopted in Crown usage.’ In short,
it is necessary to look behind references to judicial and state practice to discover the
true reasons for the principle of continuity.
2. The Separation of Powers
One legal reason for the principle of continuity was the constitutional separa-
tion of powers under the British constitution.9 From the inception of England’s me-
dieval empire, it was recognized that the decision to abrogate or amend local law
was a matter for the legislative branches of the State. As Sanders J. observed in
1554 in relation to local law and custom in Wales after its English conquest:
Edward the first made the Statute of Snowden [in 1284], by which it appears
that he considered and perused all the laws of Wales, and some of them he ut-
terly repealed, some he permitted to stand, some he corrected, and some he
made anew, and to others he made additions, as he well might, for those under
whom the government of Wales was, had always authority to make laws
among them.”
For a judge to presume to apply English (or any other) law instead of local Welsh cus-
tom prior to the above-mentioned statute would have precluded the Crown from decid-
ing, in its legislative capacity and as a matter of policy, which local laws to keep, which
to amend, and which to repeal. Thus, English law could not and did not fully displace
Welsh law and custom until there were “means to effect it”–namely, a statute’ This
general point was made more recently and more clearly by Monk J. in Connolly:
The supreme authority of the empire, in not abolishing or altering the Indian
law, and allowing it to exist for one hundred years, impliedly sanctioned it …
[The custom] obtains within the territories and possessions of the Crown of
England, and until it is altered, I cannot disregard it. It is competent; it has been
competent during the last hundred years, for the parliament of Great Britain to
47 See e.g. Calvin’s Case, supra note 3 at 12b, 18b-23b.
Ibid.
4 9 For a recent statement of the doctrine of separation of powers and the limited role ofjudges under
that doctrine, see M. v. Home Office (1993), [1994] 1 A.C. 377 at 395, [1993] 3 All E.R. 537 (H.L.).
Buckley v. Rice Thomas (1554), 1 Plowden 118 at 126, 75 E.R. 182 (KB.) [hereinafter Buckley
cited to Plowden]. On this statute, see also Witrong, supra note 8 at 402; and Process into Wales, su-
pra note 4 at 398-99.
“‘ Buckley, ibid. at 130.
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abrogate those Indian laws, and to substitute others for them. It has not thought
proper to do so, and I shall not.52
Aside from policy considerations of humanity or political prudence, then, there was a
simple legal reason why judges presumed local law to continue: under the doctrine of
separation of powers, they had no legislative capacity to change or repeal laws. 3
3. The Rule of Law (or Necessity)
The ideal represented by the expression “the rule of law” is one to which common
law judges have traditionally aspired.’ According to Joseph Raz, the extent to which a
legal system embodies the rule of law bears no relationship to the moral worthiness of
the substantive content of its laws-the rule of law may be manifested by evil legal
systems very well.” However, even Raz accepts that because adherence to the rule of
law involves ensuring that power is exercised according to clear, prospective, stable
legal rules that are capable of observance and of guiding human behaviour, human
dignity is enhanced by its observance even if the substantive content of law is morally
repugnant. 6 Whether or not one shares Raz’s jurisprudential views,” it is clear that
judges were forced to confront legal problems arising under an imperial system that
was regarded, even by the standards of the day, as morally suspect.” In responding to
this challenge, they attempted, in so far as feasible within the restricted confines of the
judicial role, to develop the imperial common law consistently with the rule of law.
Like the separation of powers, the rule of law-or as judges often said, the princi-
ple of “necessity”–is a justification for continuity that is uniquely appropriate for ju-
dicial application. The argument is simple: until some alternative law is provided and
” Connolly, supra note 14 at 138 [emphasis added]. In confirming Monk J.’s decision on appeal,
Badgley J. agreed, stating that in these circumstances, the “legislative power alone can change the
local law” (Johnstone, supra note 14 at 333-34).
See generally Dawes, supra note 8 at 175-76, where it was said that imperial possessions
are not governed by the laws of England, unless it were so appointed by Act of Parlia-
ment; and so Callis and Gascoigne were governed by their own laws; and so are
Guernsey and Jersey at this day. … And so Ireland was not governed by our laws, till it
was so specially ordered by King John [emphasis added].
See also Freeman, supra note 31 at 324-25: local laws remain “till changed by the deliberate wisdom
of the new legislative power” [emphasis added].
‘ For a recent example, see Pierson v. Home Office, [1998] A.C. 539, [1997] 3 All E.R. 577 at 605
(H.L.) [hereinafter Pierson cited to All E.R.].
“J. Raz, “The Rule of Law and its Virtue” (1977) 93 L.Q. Rev. 195.
“Ibid. at 202-205.
5 For alternative approaches to the rule of law, see L.L. Fuller, The Morality of Law (New Haven:
Yale University Press, 1964); and T.R.S. Allan, “Legislative Supremacy and the Rule of Law: Democ-
racy and Constitutionalism” (1985) 44 Cambridge L.J. 111.
” Blackstone, supra note 7, vol. 2 at 7, queried whether “seising on countries already peopled, and
driving out or massacring the innocent and defenceless natives … was consonant to nature, to reason,
or to Christianity” (as quoted in Mabo, supra note I at 22).
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M.D. WALTERS- ABORIGINAL CUSTOMS
enforced, it would undermine the rule of law for judges not to recognize the continu-
ity of existing local laws. As Holt C.J. stated in 1693: “IT]hough a conqueror may
make new laws, yet there is a necessity that the former should be in force till new are
obtained “‘”‘ The Attorney-General for Quebec restated the proposition in 1766, argu-
ing that continuity of local law derived from “the necessity of the case, since other-
wise the conquered provinces would be governed by no laws at all*”‘ The common
law simply could not contemplate a legal vacuum-even new subjects of the Crown
could not be left in the state of legal uncertainty and chaos that would result. The ap-
plication of English law was not a viable option. Aside from the separation of powers
problem examined above, judges appreciated that any judicial assumption that there
was a “sudden application” of English law would result in “great inconvenience, and
grievous injustice “‘6′ It would be “highly inconvenient and dangerous immediately to
change” local law. 2 As Monk J. stated in Connolly, persons in “remote wilderness”
could not travel “three or four thousand miles, in canoes and on foof’ to comply with
English marriage law; adherence to local Aboriginal custom was the only practical
option.’ Thus, the only judicial principle that secured a stable, ordered legal system
capable of guiding human conduct was that which recognized continuity of existing
law until alternative legislative provisions were made.
The separation of powers and rule of law justifications for the principle of conti-
nuity overlap to a certain extent. An additional reason for judges to insist that it was
the job of legislators, not judges, to abrogate local law and introduce English law was
that only legislation would meet the requirements of the rule of law as being a clear
and prospective source of law capable of guiding individual conduct. Judges insisted
that the “alteration of an existing law” in a newly acquired territory be accomplished
by legislative instrument the authority of which was clear “on the face of the Act it-
self?”‘ Local law could only be changed by “some public acts” so that those affected
“may be informed under whose dominion and under what laws they are to live?”‘
So powerful was the common law presumption of continuity that legislative
measures introducing English law as the general law of a colony without expressly
abrogating existing local law were occasionally thought to be insufficient to achieve
9 Blankard, supra note 7 at 225-226 [emphasis added].
60 E Maseres (Attomey-General of Quebec), “Considerations on the Expediency of Procuring an
Act of Parliament for the Settlement of the Province of Quebec (1766)” in Shortt & Doughty, supra
note 44 at 261 [emphasis added]. See also Picton, supra note 44 at 946, where Lord Ellenborough
said “the old laws continue till the new are introduced, or they must be positively in a lawless state:’
6, Lyons (Mayor oJ) v. East India Co. (1836), 1 Moore P.C. 175 at 275, 12 E.R. 782.
62Freeman, supra note 31 at 324-25.
63 Connolly, supra note 14 at 108-109.
‘5Cameron v. Kyte (1835), 3 Knapp. 332 at 347, 12 E.R. 678 (P.C.).
‘ Cremidi v. Powell (1857), 11 Moore PC. 88 at 97. See also Advocate General (Bengal) v. Ranee
(1863), 2 Moore P.C. (N.S.) 22 at 61, 15 E.R. 808 [hereinafter Ranee cited to Moore P.C.]: local laws
must be changed by “express enactment”.
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abrogation. The Royal Proclamation” of 1763 introduced English law into Quebec
after the British conquest of New France; it made no mention of either the abrogation
or continuity of the existing French-Canadian legal system. Nevertheless, it was said
that the Crown could not have intended to abrogate that system. The Secretary of
State for the Colonies invoked the hybrid continuity/particular-custom rule mentioned
above and argued that the courts of Quebec ought to apply the “Laws and Customs of
Canada, with regard to Property” just as English courts recognized “Gavel-kind Bor-
In other words, French-
ough-English and several other particular customs.”‘
Canadian law would have been regarded as continuing in force in certain localities as
an element of the newly introduced English municipal law.
The law officers of the Crown went further. They observed that “[t]here is not a
Maxim of the Common Law more certain than that a Conquer’d people retain their an-
cient Customs till the Conqueror shall declare New Laws”‘ and, they concluded, the
Proclamation’s terms were insufficient to affect this presumption. The “true meaning”
of the Proclamation, they said, was that only English municipal criminal law had
been introduced and that French-Canadian property law continued in force.” In other
words, French-Canadian property law continued in force not as a particular custom
under English municipal law, but as the general law of the province under British im-
perial common law. This became the accepted legal interpretation of the Proclama-
tion7′ and it was eventually confirmed by imperial statute.” Similarly, a general legis-
lative measure introducing English law was held not to displace Aboriginal marriage
custom in western Canada.”2 Thus, the separation of powers and rule of law justifica-
tions required not only that abrogation of local law be by legislative instrument, but
that the abrogation be express.
1763 (U.K.), 3 Geo. III, reprinted in R.S.C. 1985, App. II, No. 1 [hereinafter Proclamation].
67 Letter from Lord Hillsborough (Secretary of State) to G. Carleton (Governor of Quebec) (6
March 1768), reprinted in Short & Doughty, supra note 44, 297.
Letter from C. Yorke (Attorney-General) & W. de Grey (Solicitor-General) to the Board of
Trade (14 April 1766) in Shortt & Doughty, ibid., 255.
69lbid.
7o Additional Instructions to J. Murray (Governor of Quebec) (24 June 1766), Public Record Of-
fice (London, U.K.), Colonial Office 43/1:311; E. Thurlow (Attorney-General) (26 May 1774) in
R.C. Simmonds & P.D.G. Thomas, ed., Proceedings and Debates of the British Parliaments Re-
specting North America, 1754-1783, vol. 4 (White Plains, N.Y: Kraus, 1985) at 53-57; and Mar-
riott, supra note 44 at 17.
“Quebec Act, 1774 (U.K.), 14 Geo. III, c. 83, reprinted in R.S.C. 1985, App. II, No. 2.
2 The Queen v. Nan-E-Quis-A-Ka (1889), 1 Terr. L.R. 211, 2 C.N.L.C. 368 (N.W.T. Sup. Ct.) at
215 [hereinafter Nan-E-Quis-A-Ka cited to Terr. L.R.]: though legislation had introduced English
law into the region, Wetmore J. stated: “I know of no Act of the Parliament of the United Kingdom
or of Canada … which affects in any way these customs or usages.”
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M.D. WALTERS – ABORIGINAL CUSTOMS
727
4. Fairness and Humanity
The separation of powers and rule of law justifications for the principle of conti-
nuity may be seen as morally neutral justifications in so far as judges invoking them
were concerned not so much about the fairness or justice of respecting continuity than
about the procedural steps by which continuity could be lawfully denied. The idea
that it was fair and decent to allow a newly subjected people to retain their own laws
was rarely, if ever, expressly stated by judges in the seventeenth and eighteenth centu-
ries as a reason for the common law principle of continuity. However, the question
about what fairness or humanity required was addressed by writers on the law of na-
tions and must therefore have informed judicial responses. Arguments such as those
made by counsel in Campbell (citing Grotius), that it was “unusual” for a conqueror
to be “harsh and rigorous” and abolish local law and that it was, instead, the practice
to be “indulgent” and “suffer the inhabitants … to possess their own laws;” no doubt
influenced judges in their articulation of the common law and construction of legisla-
tion. By the nineteenth century, at least certain judges were more open about the
moral foundations of the principle. In Symonds, for example, Chapman J. insisted that
the law relating to Native rights was “animated by the humane spirit of modem
times,” and governments and courts alike were bound to respect common law Native
title “for the sake of humanity” Similarly, Marshall C.J. acknowledged that if judges
allowed themselves to be swayed by their “sympathies”, they could not help but be
moved by the dispossession of Indian nations in the United States of their
homelands.”
The dictates of humanity and fairness informed the principle of continuity in at
least two ways. First, it is a general presumption of common law that rights of prop-
erty not be taken away in the absence of express legislation.” Aboriginal title to land
falls within this protective presumption, but so too might “possession” of customs and
powers of self-determination.” These attributes of nationhood are, clearly, things of
value to Native communities, and at least some judges applied the above-mentioned
presumption to ensure that Native peoples were not stripped of these valuable posses-
sions except by express legislative instrument.” In short, it is only fair that judges pre-
sume that things belonging to one people cannot be taken by another.
Fairness and humanity also require respect for cultural differences. By the nine-
teenth century, courts began to refer expressly to cultural pluralism as a reason for le-
7′ Campbell, supra note 5 at 698.
7″ Symonds, supra note 6 at 388, 390.
7- Cherokee Nation, supra note 18 at 15.
76 Cooper v. Wandsworth Board of Works (1863), 14 C.B. (N.S.) 180, 143 E.R. 414 (K.B.) [herein-
after Cooper].
“Indeed the presumption in Cooper, ibid, has been extended to all forms of human rights and fun-
damental constitutional principles: see Pierson, supra note 54 at 604-605.
7′ Thus, said Johnson J. in Cherokee Nation, supra note 18 at 27, “their right of personal self-
government has never been taken from them;’ so they must still have it.
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gal pluralism. Local law was often thought to be “abhorrent to all feelings, and opin-
ions, and habits” of British society, and therefore judges often applied English law
between British settlers even if local law continued to regulate local communities.’
The converse was also acknowledged. Thus, it was stated that English law was “not
applicable to the religious or civil habits of the Mohamedan or Hindoo natives” in In-
they were “allowed to remain under their own laws.”‘
dia and “on that account’
Similarly, one judge held that it would be “monstrous” to construe legislation intro-
ducing English law into western Canada as extending English marriage law to the
“Territories quoad the Indians” for they were “for the most part unchristianized, they
yet adhere to their own peculiar marriage custom and usages.”‘ Especially in relation
to family matters, it was stated elsewhere that the law “treats with tenderness, or at
least toleration, the opinions and usages of a distinct people.”82
There were, however, limits to the common law’s tolerance for the usages of cul-
turally distinct peoples. Since Native laws and customs were incorporated into the
common law, they had to fit within the moral parameters set by the common law, and
any local laws and customs inconsistent with British conceptions of justice or human-
ity-any customs that were mala in se-were considered ipsofacto void.” Indeed, be-
fore applying Aboriginal marriage customs in North America, courts ensured that
they reflected the sort of rules that the common law itself would impose on marriages
conducted in remote places without civil and religious institutions. In Connolly,
Monk J. concluded:
This [marriage] law or custom of the Indian nations is … written in the great
volume of nature as one of the social necessities, one of moral obligations of
our race, through all time and under all circumstances, binding, essential, and
inevitable, and without which neither man, nor even barbarianism itself, could
exist upon earth.”
In other words, notwithstanding cultural difference, Aboriginal nations of North
America followed the same basic customs of marriage as every other human commu-
nity, and for this reason the custom could be enforced.” Those aspects of Aboriginal
“‘ Ruding v. Smith (1821), 2 Hag. Con. 371 at 381, 161 E.R. 774 (K.B.) [hereinafter Ruding cited
to E.R.]. See also The King v. Brampton (1808), 10 East 282 (K.B.).
” The “Indian Chief’ (1801), 3 C. Rob. 12 at 31-32. See also Freeman, supra note 31 at 324-25:
judges expressed concern that “new subjects” might be “unprepared … in civil and political charac-
ter” to receive English laws. See also Ranee, supra note 65 at 60: laws of India are “at variance with
all the principles, feelings and habits of European Christians,” and “European laws and usages are as
little suited” to natives in India “as the laws of the Mahometans and Hindoos are suited to
Europeans:’
S Nan-E-Quis-A-Ka, supra note 72 at 215.
82 Ruding, supra note 79 at 779.
83Anon. (1722), 2 P. Wmns. 75 (P.C.).
,5Ibid.
Connolly, supra note 14 at 115 [emphasis added].
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M.D. WALTERS – ABORIGINAL CUSTOMS
marriage custom, like polygamy, that were (from the British perspective) morally
problematic, were held to be “incidental” to the custom and unenforceable.’
To summarize, judicial acknowledgement of continuity of local law was informed
by considerations of fairness and humanity, though only insofar as judicial office
permitted. Like the doctrines of separation of powers and the rule of law, fairness and
humanity (in this limited sense) were distinctly common law justifications for the im-
perial common law principle of continuity.
II. Articulating a Modern Theory of Aboriginal Rights-Judicial
Invention or (Re)lnterpretation?
A. Mabo and the “Normative Common Law” Interpretative Method
To what extent do imperial legal principles relating to continuity of local laws
provide a doctrinal foundation for common law Aboriginal rights in former British
colonies? A legal historian examining empirical data about what judges actually did
would no doubt question the claim that imperial law formed a foundation for Abo-
riginal rights. In relation to Australia in particular, the expression “common law Abo-
riginal rights” may be regarded as an oxymoron. Even in New Zealand and Canada,
where colonial judges did recognize Aboriginal rights at common law, a historian
surveying the entire historical record would have to conclude that, as a matter of fact,
the colonial courts of these jurisdictions did not recognize in any thorough or mean-
ingful sense Aboriginal customary laws at common law. Few cases involving Abo-
riginal issues reached the courts, and when they did, judges seemed reluctant to ar-
ticulate general doctrineY In short, the adoption of an interpretative approach to
common law history that focused only upon explicit statements of past judges-an
“empirical common law” interpretative method-would yield only a few common
law Aboriginal rights.
However, legal historians and lawyers do not merely collect empirical data about
what past judges did; they subject that data to interpretation and analysis. The histo-
rian explores reasons behind past judicial behaviour, and relationships between past
law and society at the time.’ In contrast, lawyers and judges in common law systems
read past law in order to identify the framework of normative principles within which
present law can be articulated and applied to resolve present legal disputes.” If past
‘Ibid. at 134
8’ M.D. Walters, ‘The Extension of Colonial Criminal Jurisdiction over the Aboriginal Peoples of
Upper Canada: Reconsidering the Shawanakiskie Case (1822-26)” (1996) 46 U.T.L.J. 273 at 273-74.
D.H. Flaherty, “Writing Canadian Legal History” in D.H. Flaherty, ed., Essays in the History of
Canadian Law, vol. 1 (Toronto: The Osgoode Society, 1981) 4.
See e.g. O.W. Holmes, Jr., The Common Law (New York: Dover Publications, 1991) at 1:
The law embodies the story of a nation’s development through many centuries, and it
cannot be dealt with as if it contained only the axioms and corollaries of a book of
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judges did not expressly address a certain question, later judges can infer general
principles from decisions rendered in analogous cases to find answers that may be
said to have been inherent within the common law all along. A legal interpretation of
common law history must give due weight to the explicit statements of past judges,
but with each new case, the authority of former judicial statements can be reconsid-
ered in light of the normative background of the common law as a whole as inter-
preted today. Courts will “reformulate the law” to keep it in step with the common
law’s underlying principles of “common justice”.’ Where a common law rule devel-
oped by past judges is displeasing to judges today, the old cases may be overturned.
When these are measured against the common law’s normative background, it can be
said that past judges got it wrong and that the common law did not actually provide
what they said it provided.”‘ As Kirby J. recently stated in the aftermath of Mabo” and
Wik Peoples v. Queensland, ‘ “sometimes Australian law … is not precisely what
might earlier have been expected or predicated.”‘ In contrast to the empirical common
law interpretative perspective, this approach may be labelled the “normative common
law” interpretative perspective.’
Thus, the conclusion in 1992 in Mabo that the common law of Australia recog-
nized common law Aboriginal title all along, even though judges denied it since the
1830s,
is spurious only on an empirical reading of the law. In his dissent, Dawson J.
takes such an approach, concluding that recognition of common law Aboriginal title
mathematics. In order to know what it is, we must know what it has been, and what it
tends to become.
Woohvich Equitable Building Society v. LR.C. (1992), [1993] A.C. 70 at 171-72, [1992] 3 All
E.R. 737 (H.L.), Lord Goff.
“‘ See e.g. Foakes v. Beer (1884), 9 A.C. 605, [1881-85] All E.R. Rep. 106 (H.L.); West Ham Union
v. Edmonton Union, [1908] A.C. I at 4, 77 L.J.K.B. 85 (H.L.); and Admiralty Commissioners v. S.S.
Valverda, [1938] A.C. 173 at 194, 158 L.T.R. 281 (H.L.).
‘2 Supra note 1.
“(1996), 141 A.L.R. 129, 187 C.L.R. 1 (H.C.) [hereinafter Wik cited to A.L.R.].
9” Thorpe v. Commonwealth of Australia (No. 3) (1997), 144 A.L.R. 677 at 687 (H.C.),
Institute
” See generally R. Dworkin, Law’s Empire (Cambridge: Harvard University Press, 1986) at 238-58
[hereinafter Law’s Empire]. The “normative common law” approach is illustrated by Lord Atkin’s
speech in Donoghue v. Stevenson, [1932] A.C. 562 at 580, 101 L.J.P.C. 119 (H.L.), which identified a
“general conception of relations giving rise to a duty of care [in negligence law] of which the particu-
lar cases … are but instances:’ This general conception could be (and was) extended to novel circum-
stances. In contrast, the dissenting opinion of Lord Buckmaster reflects an “empirical common law”
method, insisting that the categories of negligence liability already recognized in the cases could not
be changed or expanded.
96 Courts in the 1830s (see supra note 39) held that Aboriginal peoples had no laws, but it was not
until Milirrpum, supra note 39, that an Australian court expressly held that there was no common law
Native title: D. Ritter, “The Rejection of Terra Nullius in Mabo: A Critical Analysis” (1996) 18 Syd-
ney L. Rev. 5 at 13.
1999]
M.D. WALTERS – ABORIGINAL CUSTOMS
today would “revise history”.” However, the majority in Mabo reads Australia’s legal
past in a normative light, revising the external face of the common law so that it re-
flects more accurately judicial authority throughout the colonies and former colonies
as well as prevailing moral and political attitudes, but without fracturing the “skele-
ton” of principle (including Crown sovereignty and the doctrine of tenures) that gives
the common law its shape.”
At the heart of Mabo is the imperial common law principle of continuity exam-
ined above: Aboriginal title is held to arise in part from the “traditional laws” and
“traditional customs” of indigenous peoples that continued in force after the assertion
of British sovereignty over Australia.” This principle was part of the common law
well before Britain acquired Australia. Indeed, Brennan J. cites in its support the early
seventeenth-century Case of Tanistry” on the continuity of Irish “brehon” custom.'”
Had colonial judges in Australia adhered to the common law, they would have recog-
nized Aboriginal title. It was only “discriminatory denigration’ of Aboriginal peoples
that led them to conclude erroneously that Aboriginal customary law and land rights
were not cognizable at common law.”0 Of course, the High Court is quick to empha-
size that in a modem context, common law Aboriginal title survives only where Abo-
riginals continue to follow “traditional laws” (as “currently” observed) in relation to
their lands,'”3 and where no inconsistent Crown land grants have been made.'”‘
In one sense, Mabo changes the law; in another sense, it merely changes our un-
derstanding of what the law already was. 5 Mabo is, therefore, a classic example of (in
Dworkin’s terms) Herculean judicial reasoning.” Of course, the normative common
97Mabo, supra note 1 at 111. For similar arguments, see G.A. Moens, “Mabo and Political Policy-
Making by the High Court” in M.A. Stephenson & S. Ratnapala, eds., Mabo: A Judicial Revolution
(St. Lucia: University of Queensland Press, 1993) 49 at 57.
9’ Mabo, ibid. at 118-19. On the interpretive approach taken in Mabo, see F. Wheeler, “Common
Law Native Title in Australia-An Analysis of Mabo v. Queensland (No 2)” (1992) 21 Fed. L. Rev.
271 at 273-74; G. Nettheim, “Judicial Revolution or Cautious Correction?” (1993) 16 U.N.S.W.L.J. 1;
R. Bartlett, “Mabo: Another Triumph for the Common Law” (1993) 15 Syndey L. Rev. 178 [herein-
after “Another Triumph”]; B. Hocking, ‘Aboriginal Law Does Now Run in Australia” (1993) 15
Syndey L. Rev. 187; and J. Webber, “The Jurisprudence of Regret: The Search for Standards of Jus-
tice in Mabo” (1995) 17 Syndey L. Rev. 5 [hereinafter “The Jurisprudence of Regret”].
9 Mabo, ibid. at 141.
” “Supra note 8.
‘o’ Ibid. at 34-35, 39.
” Ibid. at 27-29.
‘0’ Ibid. at 43-44.
0 Ibid. at 49-50.
‘0’ See e.g. “Another Triumph”, supra note 98 at 184-85; and Hocking, supra note 98 at 205. See
also Wik, supra note 93 at 228-29, Gummow J., where it was said that Mabo did not represent the
evolution of legal rules, but the realization that existing rules were misapplied due to a mistake of
fact-i.e., that Aborigines had no law.
1’0 R. Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977) at 105-130;
and Law’s Empire, supra note 95 at 238-58.
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law method compels judges to be progressive and conservative. Mabo vindicates
Aboriginal claims to land and customs, but because it relies upon rather than refutes
the common law, it confirms certain conclusions that are, at least in the Court’s view,
part of the common law. Thus, it acknowledges that: (i) Australia was acquired by
settlement in disregard of Aboriginal sovereignty, (ii) Crown sovereignty and title did
vest without need for conquest or cession, (iii) English law did flow in automatically,
and (iv) Aboriginal title is less worthy of protection than settler titles derived from
Crown grant and (therefore) can be lawfully set aside at will by the Crown. Although
Mabo may be a radical decision in light of Australian legal history, the common law
right it acknowledges is restricted, precarious, and vulnerable.” The Court in Mabo
seems more interested in saving common law history from disgrace than in providing
Aboriginal peoples with justiciable rights for present and future purposes.'” Of
course, Wik remedies this imbalance somewhat by interpreting certain Crown land
grants consistently with common law Aboriginal title.
The “normative common law” approach to common law history in Canada, Aus-
tralia, and New Zealand supports (or could support) a meaningful set of present-day
Native rights, including not only rights to lands and resources, but perhaps also rights
to follow and develop Native laws on other aspects of Native life-in short, rights of
self-determination.” Although a Mabo-like (re)interpretation of common law history
might be necessary, the basic legal materials for constructing a comprehensive com-
mon law theory of Aboriginal rights are already part of the common law itself-they
are found within the imperial common law principle of continuity. However, it does
not necessarily follow that the resulting common law doctrine of Aboriginal rights de-
rives only from a priori rules of imperial common law. As Brian Slattery emphasizes,
the doctrine derives in part from norms that arose from and guided the inter-societal
’07 See M.J. Detmold, “Law and Difference: Reflections on Mabo’s Case” (1993) 15 Syndey L. Rev.
159 at 162; G. Nettheim, “The Consent of the Natives: Mabo and Indigenous Political Rights” (1993)
15 Sydney L. Rev. 223 at 225-27 [hereinafter “Consent of the Natives”]; R. Bartlett, “Native Title:
From Pragmatism to Equality before the Law” (1995) 20 Melbourne U. L. Rev. 282; and N. Bhuta,
“Mabo, Wik and the Art of Paradigm Management” (1998) 22 Melbourne U. L. Rev. 24 at 36.
“‘ Mabo, supra note I at 50, Brennan J.: “Aboriginal rights and interests were not stripped away by
operation of the common law … but by the exercise of a sovereign authority over land exercised recur-
rently by Governments:’
” See e.g. Royal Commission on Aboriginal Peoples, Partners in Confederation: Aboriginal Peo-
ples, Self-Government, and the Constitution (Ottawa: Canada Communications Group, 1993) at 5-27
where it was said that the common law-and therefore the Canadian Constitution-already recog-
nizes Aboriginal customary law and rights of self-government. See also Australian Law Reform
Commission, The Recognition of Aboriginal Customary Law, vol. 1 (Canberra: Australian Law Re-
form Commission, 1986) at c. 6 where it was said before Mabo, the common law does not recognize
Aboriginal customary law; Aboriginal customs relating to a broad range of areas ought therefore to be
recgonized by statute. See also Amankwah, supra note 11 at 32-37; and C. McLachlan, “The Recog-
nition of Aboriginal Customary Law: Pluralism Beyond the Colonial Paradigm-A Review Article”
(1988) 37 Int’l & Comp. L.Q. 368. On the extension of Mabo to rights of Aboriginal self-government,
see “Consent of the Natives”, supra note 107 at 231; and K.E. Mulqueeny, “Folk-law or Folklore:
When a Law is Not a Law. Or is it?” in Stephenson & Ratnapala, supra note 97, 168.
1999]
M.D. WALTERS – ABORIGINAL CUSTOMS
733
practices of imperial officials and local peoples at times and places where power was
more or less evenly balanced. In this sense, then, common law Aboriginal rights are a
form of “inter-societal law”. 10
Once it is accepted that the common law did recognize local customary legal
systems in full, the next step in developing a comprehensive modem theory of com-
mon law Aboriginal rights would be to explain the legal survival of those systems, or
at least elements of them, after centuries’ worth of external legislative incursion. In-
deed, it is this requirement that may provide the stumbling block. Nevertheless, legal
materials for reconciling continuity of local custom with apparently conflicting legis-
lation exists in older precedents.”‘ More recently, cases like R. v. Sparrow,”‘ Wik,”
and Te Weehi.” indicate judicial willingness to read instruments of positive law con-
sistently with the continuity of underlying common law Aboriginal rights.
The articulation of a theory of common law Aboriginal rights through the adop-
tion of a “normative common law” interpretative perspective is not without its theo-
retical and practical objections. If it requires judges to accept the skeletal framework
of the common law, it may be argued to affirm an unequal relationship between Abo-
riginal and non-Aboriginal law. Notwithstanding talk of the “inter-societal” character
of the law, if Aboriginal custom only survives within the common law subject to its
terms, then the oppressive conditions of imperialism and colonialism may be said to
be replicated.”5 It may therefore be argued that judges should discard the “normative
common law” method and create a foundation for Aboriginal rights that is not de-
pendent upon Herculean efforts to reconcile modem Aboriginal aspirations with cen-
“o B. Slattery, “Aboriginal Sovereignty and Imperial Claims” (1991) 29 Osgoode Hall L.J. 681 at
691 [hereinafter “Aboriginal Sovereignty”]. See also B. Slattery, “The Legal Basis of Aboriginal Ti-
tle” in F. Cassidy, ed., Aboriginal Title in British Columbia: Delgamuukw v. The Queen (Lantzville,
B.C.: Oolichan Books, 1992) 120 [hereinafter “Aboriginal Title”], quoted in R. v. Van derPeet, [1996]
2 S.C.R. 507 at 547, 137 D.L.R. (4th) 289 [hereinafter Van der Peet cited to S.C.R.]; and B. Slattery,
“Understanding Aboriginal Rights” (1987) 66 Can. Bar. Rev. 727 at 736-39 [hereinafter “Under-
standing Aboriginal”]. For similar arguments, see J. 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 [hereinafter “Relations”]. Unlike Slattery, however, Webber places empha-
sis on norms derived from cross-cultural practice alone and denies that a priori common law rules are
relevant at all. Without reference to common law precedent, however, what is the basis for Aboriginal
rights in Australia, where settlers and Natives did not create a “normative community” through com-
mon experience from which legal rules may be derived? Webber says in “The Jurisprudence of Re-
gret”, supra note 98, that Mabo is really based on arguments about morality involving regret for past
wrongs and desire for reconciliation.
. See supra notes 66-72.
“2 [1990] 1 S.C.R. 1075,70 D.L.R. (4th) 385 [hereinafter Sparrow cited to S.C.R.].
“‘ Supra note 93. See K. McNeil, “Co-Existence of Indigenous Rights and Other Interests in Land
in Australia and Canada” [1997] C.N.L.R. 1.
“‘ Supra note 1.
“. See Borrows & Rotman, supra note 2; “Aboriginal Sovereignty”, supra note 110 at 691; Det-
mold, supra note 107 at 163; and McLachlan, supra note 109 at 378-81.
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turies’ worth of legal precedent and statute law. A brand new common law foundation
for Aboriginal rights could be articulated that focused upon what rights Aboriginal
peoples ought to have in light of modem moral and political values and realities.
Thus, judges might seek to compensate Aboriginal peoples by redistributing to them
rights that place them in the position they would have been in today had their rights
not been initially denied.”6 Alternatively, judges might de-emphasize history alto-
gether and simply allocate to Aboriginal peoples the rights necessary to protect their
identities today.”‘ This sort of judicial interpretative perspective may be labelled the
“normative political” interpretative method.”‘
The normative political method is not often adopted (openly at least) by common
law judges. Indeed, many judges would deny its validity as a judicial method of legal
reform. To sever today’s common law from the common law past is to eliminate the
legitimizing force which that past provides to present-day judicial creativity. Although
the common law is “judge-made law”, judicial law-making is (supposedly) secondary
or derivative-it is confined to interpreting and thereby developing the law by analogy
to decided cases.”9 Perhaps, then, it is inappropriate for judges to give themselves the
power to act like legislators who may develop laws unanchored in existing common
law. Of course, it might be different if judges are granted this power by legislative or
constitutional instrument. If, for example, Aboriginal rights were entrenched in a con-
stitution and left undefined, perhaps judges would be at liberty to discard common
law fetters and start fresh, articulating a theory of Aboriginal rights free from imperial
and colonial legal pasts. Indeed, this is (arguably) the position in which judges in
Canada find themselves. The entrenchment in section 35(1) of the Constitution Act,
1982 ‘ of existing Aboriginal rights, which are undefined in the Constitution, provides
16 See e.g. P. Macklem, “Distributing Sovereignty: Indian Nations and Equality of Peoples” (1993)
45 Stan. L. Rev. 1311.
“‘ For a defence of special rights for Aboriginal peoples based on liberal theory that does not rely
upon historical arguments, see W. Kymlicka, Liberalism, Community and Culture (Oxford: Clarendon
Press, 1989) [hereinafter Liberalism]. See also W. Kymlicka, Multicultural Citizenship: A Liberal
Theory of Minority Rights (Oxford: Clarendon Press, 1995) at 116-120 [hereinafter Multicultural
Citizenship] where the author recognizes that historical arguments have some, albeit minor, role to
play in the defence of national minority rights. See also R. Spaulding, “Peoples as National Minori-
ties: A Review of Will Kymlicka’s Arguments for Aboriginal Rights from a Self-Determination Per-
spective” (1997) 47 U.T.L.J. 35.
‘ It should be noted that Macklem, supra note 116 at 1367, suggests that the idea of redistributing
sovereignty should inform judicial interpretation of constitutional law, and Kymlicka does not purport
to identify justiciable principles at all: see Liberalism, ibid; and Multicultural Citizenship, ibid.
” C.K. Allen, Law in the Making, 5th ed. (Oxford: Oxford University Press, 1951) at 341. See e.g.
Myers v. D.P.R (1964), [1965] A.C. 1001 at 1021-22, [1964] 3 W.L.R. 145 (H.L.), Lord Reid: “The
common lav must be developed to meet changing economic conditions and habits of thought. … But
there are limits…. If we are to extend the law it must be by the development and application of fun-
damental principles:’ See also Council of the Shire of Sutherland v. Heyman (1985), 60 A.L.R. I at
43, 157 C.L.R. 424 (H.C.), Brennan J.: “[T]he law should develop novel categories incrementally and
by analogy with established categories’
“o Being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
1999]
M.D. WALTERS – ABORIGINAL CUSTOMS
735
a potentially new foundation for Aboriginal rights law in Canada. The ways in which
the Supreme Court of Canada has interpreted section 35(1) will now be considered,
with a view to determining the extent to which common law history-especially the
imperial common law principle of continuity-continues to inform the idea of what
Aboriginal rights are in Canada.
B, Recent Canadian Cases: Detaching Constitutional Aboriginal
Rights from Common Law History
Section 35(1) of Canada’s Constitution Act, 1982 provides that “existing aborigi-
nal and treaty rights” are entrenched constitutionally. “Aboriginal rights” are not de-
fined. The entrenchment of existing Aboriginal rights may imply the entrenchment of:
(i) those rights that had been explicitly recognized as Aboriginal rights in the case law
as of 1982; (ii) in addition to or instead of rights identified in (i), those rights that
might have been, and ought to have been, recognized-i.e., rights that existed implic-
itly-as Aboriginal rights at common law as of 1982; or (iii) those rights that, al-
though not existing at common law as defined by either (i) or (ii), existed in a politi-
cal, moral, or defacto sense in 1982.2 ‘ These three approaches to interpreting “Abo-
riginal rights” in section 35(1) correspond with the above-mentioned empirical com-
mon law, normative common law, and normative political interpretative methods re-
spectively. Which approach to section 35(1) has the Supreme Court of Canada taken?
The Court has clearly rejected the empirical common law method. In Sparrow,
the Court said (quoting Noel Lyon) that the entrenchment of Aboriginal rights in 1982
was “not just a codification of the case law on aboriginal rights that had accumulated
by 1982″” ‘2 It also held that to be “existing”, Aboriginal rights had to be “in actual-
ity”, so that rights legislatively extinguished before 1982 were not “revived”.’ How-
ever, the Court in that case did not need to address whether constitutional rights were
limited to rights inherent in the common law as of 1982 (a normative common law
approach) or whether they extended as well to rights never before–either explicitly
or implicitly-part of the common law (a normative political approach). Further light
has been cast upon this issue by a series of cases rendered in 1996 and 1997. A line of
cases beginning with Van der Peet defines the Court’s approach to Aboriginal rights
other than title to land, 2′ and the Court’s decision in Delgamuukw v. British Colum-
bia’23 defines the Court’s approach to Aboriginal title to land.
… For academic commentary, see K. McNeil, “The Constitutional Rights of Aboriginal People of
Canada” (1982) 4 Supreme Court L.R. 255; “Understanding Aboriginal”, supra note 110; and W.
Pentney, “The Rights of the Aboriginal Peoples of Canada in the Constitution Act, 1982, Part II-
Section 35: The Substantive Guarantee” (1988) 22 U.B.C. L. Rev. 207.
‘ Sparrow, supra note 112 at 1106, Dickson C.J.C. and La Forest J., quoting N. Lyon, “An Essay
on Constitutional Interpretation” (1988) 26 Osgoode Hall L.J. 95 at 100.
121 Sparrow, ibid. at 1091.
124 Van der Peet, supra note 110, applied in: R. v. N.TC. Smokehouse Ltd., [1996] 2 S.C.R. 672, 137
D.L.R. (4th) 528; R. v. Gladstone, [1996] 2 S.C.R. 723, 137 D.L.R. (4th) 648; R. v. Adams, [1996] 3
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[Vol. 44
1. The Theory of Continuity in Van der Peet
In Van der Peet, a member of the Sto:lo First Nation in British Columbia claimed
that provincial fishing regulations violated her Aboriginal right to fish on a commer-
cial basis. The Court adopted a general four-stage test derived from Sparrow for sec-
tion 35(1). For an Aboriginal group to assert an Aboriginal right against inconsistent
governmental or legislative measures, it has to show that (i) it has an Aboriginal right
to undertake the relevant activity; (ii) the right was not extinguished prior to 1982; (iii)
the impugned governmental measure infringes the right; and (iv) the infringement
cannot be justified by some more important public interest (like conservation of en-
dangered natural resources). Van der Peet was the Court’s first opportunity to articu-
late principles for defining “Aboriginal rights” at stage (i). Writing on behalf of the
majority, Lamer C.J.C. held that for an Aboriginal custom, practice, or tradition to
qualify as an Aboriginal right protected by section 35(1), the claimant Aboriginal
people had to show: (a) “continuity” between the custom, practice, or tradition at is-
sue and a custom, practice, or tradition that was followed by their ancestors prior to
contact with Europeans, and (b) the pre-contact custom, practice, or tradition was in-
tegral to the distinctive Aboriginal culture of the people.’6 To meet this “integral to a
distinctive culture” test, a custom cannot have originated after European contact
(though customs may evolve into “modem forms”).’27 The custom cannot be some-
thing “true of every human society (e.g. eating to survive)””” but it need not be “dis-
tinct to the Aboriginal culture” in the sense of being unique to that culture alone.
Rather, it must be “distinctive” in that, when considered without reference to other
cultures, it can be said to be central to making the culture “what it is”.'” Only integral
customs qualify; customs “merely incidental” to integral customs are not protected.'”
Although Lamer C.J.C. says that this test is premised upon a “concept of continu-
the test is not related to the imperial common law principle of continuity.’ 2 Van
ity”,’
der Peet focuses on the continuity of pre-contact cultures and identities; the imperial
common law focuses upon the continuity of one legal system upon the assertion of
sovereignty by another system. As seen, according to the imperial common law,
judges presumed that all local laws and institutions (that were not mala in se or incon-
sistent with British sovereignty) remained in force as British laws upon the assertion
of British sovereignty. Continuity was not limited to customs “integral” to local cul-
ture as it existed prior to “contact” with other cultures.
S.C.R. 101, 138 D.L.R. (4th) 657 [hereinafter Adams cited to S.C.R.]; and R. v. Ct6, [1996] 3 S.C.R.
139, 138 D.L.R. (4th) 385 [hereinafter Ctt cited to S.C.R.].
[1997] 3 S.C.R. 1010, 153 D.L.R. (4th) 193 [hereinafter Delgamuukw cited to S.C.R.].
16 Van der Peet, supra note 110 at 554-57.
‘7 Ibid. at 561-62, 556-57.
1 Ibid. at 554.
‘.. Ibid. at 560-61 [emphasis in original]; see also L’Heureux-Dub6 J.’s reasoning at 591-92.
‘”o Ibid. at 560.
‘3’ Ibid.
‘” R.L. Barsh & J.Y Henderson, “The Supreme Court’s Van der Peet Trilogy: Naive Imperialism
and Ropes of Sand” (1997) 42 McGill L. 993 at 1007.
1999]
M.D. WALTERS- ABORIGINAL CUSTOMS
737
Lamer C.J.C. does not expressly refer to, let alone contrast his theory with, the
imperial common law principle of continuity. However, he implicitly acknowledges
the difference in approaches in Cti,’3 which addresses the status of Aboriginal rights
in territories Britain acquired from France. In Cbtj, Lamer C.J.C. observes in passing
the “pre-existing laws governing
that “under the legal principles of British conquest,’
the acquired territory of New France were received and continued in the absence of
subsequent legislative modification,” and that this was one of the foundations for
Quebec’s “distinct civilian system of private law” today.'” In applying the imperial
common law principle of continuity to French-Canadian law, however, he does not
say that only French laws integral to the distinctive culture of les habitants of New
France continued in force-indeed, their legal system could not have continued in
force as a coherent “system” had this been the case. Clearly, the “concept of continu-
ity” that Lamer C.J.C. develops to explain the status of Aboriginal customary law is
fundamentally different from the imperial common law principle of continuity he uses
to explain the status of civil law in Quebec.
In their dissenting judgments, L’Heureux-Dub6 and McLachlin JJ. do expressly
refer to, and contrast Lamer C.J.C.’s test with, the imperial common law principle of
continuity. L’Heureux-Dub6 J. agrees that Aboriginal rights are customs integral to
distinctive Aboriginal cultures, but rejects the need for pre-contact continuity. In her
view, Aboriginal rights should be “dynamic” and “evolve” in response to modem
concerns; therefore, integral customs followed for considerable periods of time qual-
ify for constitutional protection even if they developed post-contact.”‘ Says
L’Heureux-Dub6 J., this approach “relates to the ‘doctrine of continuity’, founded in
British imperial constitutional law,” according to which the local law in newly ac-
quired territories “continues at common law.” ‘3 Indeed, her approach is somewhat
closer to imperial common law than that adopted by Lamer C.J.C. because it focuses
on the date of sovereignty rather than contact and it recognizes-much as the Privy
Council did in 1919’ 37-that what continues in force is a legal system that contains
within itself the ability to change and add new features to accommodate wholly new
circumstances. However, it is not identical to imperial law. Like Lamer C.J.C.’s test, it
insists that only culturally integral customs are recognized.”‘
Unlike Lamer C.J.C. and L’Heureux-Dub6 J., McLachlin L in her dissenting
opinion both cites and purports to apply the imperial common law principle of conti-
nuity. Although she agrees that “history is important”, she rejects the idea that only
customs linked to pre-contact times qualify as Aboriginal rights.’ 9 Although she ac-
‘3 Supra note 124.
‘ Ibid. at 172-73.
‘s Van der Peet, supra note 110 at 599-601. See also L.I. Rotman, “Creating a Still-Life out of Dy-
namic Objects: Rights Reductionism at the Supreme Court of Canada” (1997) 36 Alta. L. Rev. 1.
,36 Van der Peet, ibid. at 600.
117 Hineiti, supra note 36.
138 Van derPeet, supra note 110 at 601.
,39 Ibid. at 633-34.
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cepts that Aboriginal rights are invariably central to distinctive Aboriginal cultures,
she rejects the application of an “integral to a distinctive culture” test for identifying
what Aboriginal rights are.'” Citing Brennan J. from Mabo, McLachlin J. concludes
that Aboriginal rights derive from the “traditional laws and customs of the aboriginal
people in question.””‘ Because they derive from traditional law and custom, Aborigi-
nal rights will likely have some connection to pre-contact customs and will, almost by
definition, be integral to Aboriginal cultures (in her view, few customs would fail to
be culturally integral). However, she says there is simply no authority in the decided
cases for using contact and cultural integrity as definitive tests.’ 2
McLachlin J. therefore looks to “the common law and Canadian history”‘4 3 to find
the appropriate test. There, she finds the imperial common law principle of continuity.
Citing, inter alia, the Case of Tanistry and Mabo, she concludes that the long history
of interaction between Europeans and the common law with Aboriginal peoples is
connected by a “golden thread”–namely, “the recognition by the common law of the
ancestral laws and customs of the aboriginal peoples who occupied the land prior to
European settlement.”” According to this principle, the “Crown in Canada must be
taken as having accepted existing native laws and customs”‘ 5 and (barring extin-
guishment or treaty) an Aboriginal right will be established once “continuity” can be
shown between a modem practice and the Native laws that “held sway before super-
imposition of European laws and customs.'”” This principle, she says, is consistent
with historical reality in Canada, even if it was largely ignored by settlers in British
Columbia.”‘ McLachlin J. has therefore applied the imperial common law principle of
continuity. Her version of the principle is, however, arguably a restrictive one: at least
in relation to natural resources, the right cannot be enlarged by (using the Privy Coun-
cil’s expression) “quasi-legislative” means,'” for in her view, the level of resources se-
cured by the right is defined as being the modem equivalent of resources taken under
traditional law.’9
2. The Theory of Continuity in Delgamuukw
Van der Peet’s “integral to a distinctive culture” test defines Aboriginal rights that
are “activities”, including rights to use natural resources on lands not subject to Abo-
riginal title. In Delganuukw,'” the Court held that this test does not apply to the defi-
‘, Ibid. at 637-38.
“‘ Ibid. at 634.
Ibid. at 637-38.
“4 Ibid. at 641-42.
‘”Ibid. at 642-43. See Case of Tanistry, supra note 8; and Mabo, supra note 1.
“45 Van der Peet, ibid. at 645.
“6 Ibid. at 634-35.
“, Ibid. at 646-47.
8 Hineiti, supra note 36.
“‘ Van der Peet, supra note 110 at 665-66.
“o Supra note 125.
1999]
M.D. WALTERS – ABORIGINAL CUSTOMS
nition of Aboriginal title, which is an exclusive proprietary interest in land itself. Del-
gamuukw may be said to represent a return by the Court to the more solid ground of
common law principle and, hence, a more familiar form of legal continuity.5 ‘ Writing
for the majority, Lamer C.J.C. held that Aboriginal title is an exclusive right to occupy
and use land for a variety of purposes that may or may not be linked to uses integral to
distinctive pre-contact Aboriginal cultures (so long as these uses do not destroy the
nature of the group’s “attachment” to their lands).’52 Aboriginal title derives from two
sources: the physical fact of prior occupation, and “the relationship between common
law and pre-existing systems of aboriginal law” ‘3 Because Aboriginal title is a sui
generis interest in land that burdens the Crown’s underlying, or radical, title, it vests
when the Crown’s title vests-i.e., at the point Britain asserts sovereignty.” So al-
though the relevant date of inquiry for determining Aboriginal rights is the date of
European contact, the relevant date for determining Aboriginal title is the date Britain
asserts sovereignty: any exclusive Aboriginal possessory rights asserted at that date
continue thereafter (barring extinguishment or cession) as a burden upon the Crown’s
title. The requirement in Van der Peet that the Aboriginal right be central to a distinc-
tive culture remains, but in relation to Aboriginal title, it is deemed to have been met
once exclusive possession is established.” In defining which territories a particular
group possessed exclusively, Lamer C.J.C. insists that both Aboriginal and non-
Aboriginal perspectives be taken into account, and the Aboriginal perspective “can be
gleaned, in part, but not exclusively, from their traditional laws.”” Thus, reference
may be made to the “pattern of land holdings under aboriginal law”5
including laws
on trespass and joint occupation.’59 However, there seems to be no need to show that
these laws were culturally integral.”9 Thus, Aboriginal land laws under Delgamuukw
gain recognition, at least insofar as they are relevant to defining Aboriginal title, on a
basis similar to that found in the imperial common law. In theory, then, culturally non-
integral Aboriginal land laws might be relevant to defining Aboriginal title under Del-
gamuukw even though, on their own, they could not be Aboriginal rights under Van
der Peet.
“‘ For arguments anticipating the return to common law principle in Delgamuukw, see K. McNeil,
“Aboriginal Title and Aboriginal Rights: What’s the Connection?” (1997) 36 Alta. L. Rev. 117 at 129-
30, 133 [hereinafter “What’s the Connection?”].
‘5 Delgamuukw, supra note 125 at 1080, 1083-84.
’53Ibid at 1082, 1095-96.
‘ Ibid. at 1097-98.
“‘Ibid. at 1097, 1101.
56Ibid. at I100.
‘5 Ibid. at 1099-1100.
’58Ibd at 1105.
59 Ibi& at 1097-98.
‘
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3.
Identifying the Jurisprudential Basis of the Van der Peet Concept
of Continuity
If the Van der Peet “integral to a distinctive culture” test is not related to the impe-
rial common law, where did it come from? Is the test the result of a radical reinter-
pretation of common law, or is it a wholly new conceptual foundation for Aboriginal
rights? In other words, is it the result of a “normative common law” or a “normative
political” method of interpretation? In her dissenting judgment in Van der Peet,
McLachlin J. concludes that her colleagues attempted to “describe a priori what an
aboriginal right is” by “reasoning from first principles” when they ought to have fol-
lowed the “time-honoured methodology of the common law” by looking “to history”
and inferring from past judicial precedent what present rights ought to be.”w In other
words, she claims the other judges adopted what has been labelled here a “normative
political” interpretative method when they ought to have taken what she calls the
“empirical” approach, but which (because it involves interpretation of old cases in
new contexts) has been labelled here the “normative common law” interpretative
method. Whatever the label, if McLachlin J. is right, then it would appear that Abo-
riginal rights law in Canada has become detached from its common law roots. It is
important to determine if this is true and, if it is, what the implications are.
In fact, Lamer C.J.C. begins his articulation of the “integral to a distinctive cul-
ture” test by going straight to the common law. To interpret section 35(1), he says, its
purpose must be known, and since section 35(1) entrenched a pre-existing “common
law” doctrine, its purpose is found by examining the purpose behind the common law
doctrine of Aboriginal rights.”‘ He then quotes from leading Canadian, American, and
Australian cases, including Calder,” Guerin v. The Queen,'” M’Intosh,'” Worcester,'”
‘ Van der Peet, supra note 110 at 641-42.
161 Ibid. at 538: Lamer C.J.C. denies that the purpose can be found by looking at the reasons behind
the constitutionalization of common law rights. See also L’Heureux-Dub6 J.’s reasoning, ibid. at 594.
62 Ibid. at 539-40. The passage quoted from Calder, supra note 1 at 375, includes Judson J.’s
statement that Indian title derives from “the fact … that when the settlers came, the Indians were
there, organized in societies and occupying the land as their forefathers had done for centuries.”
,63 Van der Peet, ibid. at 540. The passage quoted from Guerin v. The Queen, [1984] 2 S.C.R. 335
at 376, 13 D.L.R. (4th) 321, includes Dickson C.J.C.’s statement that characterized Aboriginal title
as “a legal right derived from the Indians’ historic occupation and possession of their tribal lands.”
” Van der Peet, ibid. at 541. The passage quoted from M’Intosh, supra note 18 at 572-74, includes
Marshall C.J.’s statement that the “original inhabitants” were recognized as “rightful occupants of
the soil, with a legal as well as just claim to retain possession of it … but their rights to complete
sovereignty, as independent nations, were necessarily diminished.”
165 Van der Peet, ibid. at 543. The passage quoted from Worcester, supra note 19 at 542-43, 559,
includes Marshall C.J.’s statements that Natives were “distinct people, divided into separate nations,
… having institutions of their own, and governing themselves by their own laws” and they were
“distinct, independent political communities, retaining their original natural rights, as the undisputed
possessors of the soil:’
1999]
M.D. WALTERS – ABORIGINAL CUSTOMS
and Mabo.” He puts particular emphasis on Brennan J.’s statement from Mabo that
Aboriginal rights derive from “[t]raditional laws” and “traditional customs”. In his
view, these expressions confirm that Aboriginal rights derive from the “pre-existing
culture” of Aboriginal peoples. 7 Citing academic commentary, Lamer C.J.C. then
concludes that the doctrine of Aboriginal rights serves to reconcile Aboriginal and
non-Aboriginal legal cultures, taking both perspectives into account within the context
of Crown sovereignty.'” From this analysis of cases and commentary, Lamer C.J.C.
concludes that the basis of the common law doctrine of Aboriginal rights is the recog-
nition of the fact that, prior to the arrival of Europeans, North America was already
occupied by peoples “participating in distinctive cultures,” or “distinctive aboriginal
societies,” with their own “practices, traditions and cultures,” and that this fact had to
be reconciled with the assertion of sovereignty by the Crown.'” Section 35(1) pro-
vides a constitutional framework for this reconciliation.’
To this point, Lamer C.J.C.’s analysis is consistent with imperial common law
principles. However, it is here where he makes a conceptual leap that (arguably) de-
taches Van der Peet from the common law. Lamer C.J.C. states:
In order to fulfill the purpose underlying s. 35(l)-i.e., the protection and rec-
onciliation of the interests which arise from the fact that prior to the arrival of
Europeans in North America aboriginal peoples lived on the land in distinctive
societies, with their own practices, customs and traditions—the test for identi-
fying the aboriginal rights recognized and affirmed by s. 35(1) must be directed
at identifying the crucial elements of those pre-existing distinctive societies. It
must, in other words, aim at identifying the practices, traditions and customs
central to the aboriginal societies that existed in North America prior to con-
tact with the Europeans.’
Thus, the “integral to a distinctive culture” test emerges. Lamer C.J.C.’s reasoning
seems to be this: (a) Aboriginal rights arise from prior occupation of territory by dis-
tinctive Aboriginal societies having their own customary laws; therefore, (b) Aborigi-
nal rights are limited to customs that made their societies distinctive. The cases he
cites support (a) but do not support (b). Furthermore, (b) does not follow inexorably
‘6 Van der Peet, ibid. at 545-46. The passage quoted from Mabo, supra note 1 at 58, includes
Brennan J,’s statement that Native title derives from “traditional laws acknowledged by and the tra-
ditional customs observed by the indigenous inhabitants of a territory.”
167 Van der Peet, ibid.
‘6’ Ibid. at 547. Lamer C.J.C. cites P. Macklem, “Normative Dimensions of an Aboriginal Right to
Self-Government” (1995) 21 Queen’s L.J. 173 at 180: fights of prior occupants prevail over subse-
quent newcomers; Pentney, supra note 121 at 258: the common law recognizes prior social organi-
zation; M. Walters, “British Imperial Constitutional Law and Aboriginal Rights: A Comment on
Delgamuukw v. British Columbia” (1992) 17 Queen’s L.J. 350 at 412-413: Aboriginal rights arise
out of the meeting of two dissimilar “legal cultures”, and both perspectives must be considered; and
“Aboriginal Title”, supra note 110: Aboriginal rights derive from “inter-societal” law.
‘”9 Van der Peet, ibid. at 538-39.
170 Ibid. at 547-48.
. Ibid. at 548 [emphasis added].
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from (a). Although the cases mention that Aboriginal peoples were “distinct”, there is
no suggestion that the distinctiveness of their cultures was the reason for the recogni-
tion of their rights. Indeed, the passages quoted from M’Intosh and Worcester describe
Indians as distinct political entities with some degree of sovereignty.'” Two distinct
political entities can be culturally identical. Indeed, the Cherokee Nation, whose rights
of self-government were acknowledged in Worcester, had, by the date of that case,
adopted many of the cultural and legal attributes of the surrounding settler society.'”
The only real judicial support for the Van der Peet test is a passing comment in Spar-
row in which it is observed that the anthropological evidence relied upon to establish
the right to fish in that case established that, for the relevant Aboriginal people, fishing
had always constituted “an integral part of their distinctive culture”” But, as
McLachlin J. observes in her dissenting opinion, nothing in Sparrow suggests that
only customs integral to distinctive cultures qualify as constitutional Aboriginal rights.
Aside from the cases Lamer C.J.C. cites, the many other cases on the imperial
common law examined above in Part I confirm that the point of the common law
principle of continuity was not to protect distinctive cultures. The common law justi-
fications for continuity were the separation of powers, the rule of law, and fairness. Of
course, being fair involved tolerating and respecting cultural difference by respecting
local laws. However, fairness also required that a people’s possessions and powers be
respected because, regardless of culture, these pdssessions and powers belong to them
and the taking of belongings of others without their consent is unfair. In fact, no case
can be cited where only laws integral to distinctive cultures were recognized. Indeed,
no such case exists because such an approach to continuity of laws would have been
inconsistent with the other two justifications for the principle. It would have violated
the separation of powers by allowing judicial intrusion into the sphere of legislative
policy so as to pre-empt and preclude the legislature’s decision about the status of lo-
cal law. Also, it would have violated the rule of law by undermining civil order, sta-
bility, and legal certainty in the territory by introducing a confusing and (from the lo-
cal perspective) arbitrary rule that deprived culturally non-integral parts of the legal
system of any force. Even if culturally unimportant laws could be identified by judges
swiftly, rationally, and comprehensively so as to avoid chaos (which, given the piece-
meal character of judicial decision-making, is highly unlikely), the sudden invalidity
of these laws might have deprived the legal order of rules that, in practical terms, were
indispensable to its continued functioning.
Although Lamer C.J.C.’s test finds no direct support in the common law, he pur-
ports to rely, at least in part, upon the common law. One might therefore argue, con-
‘ Supra notes 164, 165. This point is emphasized by B.W. Morse in “Permafrost Rights: Aborigi-
nal Self-Government and the Supreme Court in R. v. Pamajewon” (1997) 42 McGill L.J. 1011 at
1031.
‘” See R. Strickland, Fire and the Spirits: Cherokee Law from Clan to Court (Norman: University
of Oklahoma Press, 1975); and W.L. Anderson, ed., Cherokee Removal: Before and After (London:
University of Georgia Press, 1991).
17 Van der Peet, supra note 110 at 548-49, quoting from Sparrow, supra note 112 at 1099.
1999]
M.D. WALTERS – ABORIGINAL CUSTOMS
trary to McLachlin J., that the majority’s opinion in Van der Peet represents a mod-
ernized interpretation of the common law rather than a new test derived from first
principles. Subsequent cases, however, confirm the extent to which Van der Peet de-
taches Aboriginal rights from the common law. In Cbtd and Adams,'” the Court ad-
dressed the status of Aboriginal rights in territories gained by Britain from France.
Prior to these cases, doubts persisted as to whether French law denied Aboriginal
rights, whether this law continued after Britain acquired sovereignty, and whether pre-
rogative legislation in 1763 acknowledging Aboriginal title extended into Quebec.
Although Lamer C.J.C. acknowledges that there are convincing legal-historical argu-
ments explaining the existence of Aboriginal rights in French and British colonial and
imperial law, he chooses instead to avoid “murky historical waters” ‘ 6 altogether. In his
view, section 35(1) “changed the landscape of aboriginal rights in Canada” and if as a
matter of fact an integral pre-contact Aboriginal custom was followed after contact
without being expressly extinguished, then it simply did not matter that it lacked the
“formal gloss of legal recognition” by colonial law or the “legal approval of British
and French colonizers”” Even in those circumstances, the custom qualifies for con-
stitutional protection under section 35(1) today.’7″ To insist upon demonstrating that
Aboriginal rights had some legal status at colonial common law would be a “static
and retrospective” approach inconsistent with section 35(1)’s “noble and prospective”
purposes, one which would “perpetuat[e] the historical injustice suffered by aborigi-
nal peoples at the hands of colonizers who failed to respect the distinctive cultures of
pre-existing aboriginal societies ” ’79 Lamer C.J.C. quotes as support for his approach
Brennan J.’s statement in Mabo that past justifications for denying indigenous land
rights were “unjust and discriminatory” and can no longer be accepted.”w
Lamer C.J.C. and Brennan J. clearly agree that the common law, as applied in the
colonies, was morally repugnant in relation to its treatment of Aboriginal peoples;
however, Lamer C.J.C.’s response to this problem is very different from Brennan J.’s.
Whereas Brennan J. retains his allegiance to the common law, purging it of errors
through (what may be called) a “normative common law” interpretation, Lamer C.J.C.
seems to adopt an “empirical common law” perspective, assuming that the common
law is “static” and irredeemable. So whereas Brennan J. confronts the common law’s
chequered past and refashions it to obtain an internally coherent and morally defensi-
ble theory of common law, Lamer C.J.C. forsakes the common law and creates, using
section 35(1), an independent constitutional foundation for Aboriginal rights.”‘
“‘ Cbtg, supra note 124; and Adams, supra note 124.
176 Ctj, ibid. at 167-68.
n” Ibid. at 174-75.
‘7 IbicL; and Adams, supra note 124 at 121.
‘”Ctd, ibid. at 175.
18o IbiL
… Barsh & Henderson, supra note 132 at 1008: “[The Court has discarded the traditional British
Commonwealth framework.”
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Lamer C.J.C.’s statements from Delgamuukw are, however, somewhat more am-
biguous than those in C6td and Adams. On the one hand, he says that the existence of
an Aboriginal right at common law is “sufficient, but not necessary” for the existence
‘ suggesting that section
of a constitutional Aboriginal right under section 35(l),
35(1) extends Aboriginal rights law into territory uncharted by the common law. On
the other hand, Lamer C.JC., when discussing the relationship between Aboriginal ti-
tle and Aboriginal rights, states:
TIhe common law should develop to recognize aboriginal rights (and title,
when necessary) as they were recognized by either de facto practice or by the
aboriginal system of governance. It also allows sufficient flexibility to deal with
this highly complex and rapidly evolving area of the law.”‘
This statement suggests that, in Lamer C.J.C.’s view, the common law is less “static”
and “retrospective” than he initially suggested.
Reconciling these various statements from Van der Peet, Cbtd, Adams, and Del-
gamuukw, it can be said that Lamer C.J.C. is willing to acknowledge that the “com-
mon law content” of section 35(1) is capable of some (perhaps limited) development
and expansion beyond the Aboriginal rights explicitly recognized in the case law up
to 1982. However, Lamer C.J.C. considers that there is no real need to enter into com-
plex debates about legal history in order to revise centuries’ worth of colonial law in
order to find an acceptable updated version of the common law, since Aboriginal
rights that existed defacto can now be recognized under the “integral to a distinctive
culture” test of section 35(1). This test, though associated with the common law doc-
trine of Aboriginal rights, and perhaps capable of description as “evolved” common
law, is really a wholly new legal foundation for Aboriginal rights designed to achieve
the “noble” purpose of expanding Aboriginal rights beyond the scope of common law
rules that, historically, denied or limited Aboriginal rights. At its heart, then, the “inte-
gral to a distinctive culture” test is the result of a normative political interpretation, not
a normative common law interpretation. It is, as McLachlin J. argues, derived from
“first principles”.
To characterize the Van der Peet test as the result of a “normative political” inter-
pretative method is not to imply that the Court exceeded its proper judicial function,
or that the test is legally indefensible. Indeed, this is the sort of interpretive approach
that judges confronted with vague constitutional texts must adopt. In many respects,
Lamer C.J.C.’s conclusions are textually based. He puts considerable emphasis on the
fact that Aboriginal rights–or (in the French version) “droits ancestral”-are pro-
tected. This language confirms, in his view, that the rights must be “temporally rooted
in the historical presence-the ancestry-of Aboriginal peoples in North America.”‘ ”
Furthermore, he observes that giving “special constitutional protection” to certain
group-based rights in a Constitution which is otherwise informed by “liberal” values
B2 Delganuuliv, supra note 125 at 1091-93.
at 1106-107 [emphasis added].
”Ibid
8 Van der Peet, supra note 110 at 534, 539.
1999]
M.D. WALTERS- ABORIGINAL CUSTOMS
745
emphasizing individual rights requires some special justification.”‘ Although one may
argue that Lamer C.J.C.’s assumptions about liberalism are wrong or that the test de-
veloped is unworkable, it must be accepted that his basic interpretive approach to the
Constitution is hardly novel or unprecedented.
4. Reconciling the Imperial Common Law Principle of Continuity with
the Van der Peet Concept of Continuity
It is now necessary to consider the implications of the Van der Peet approach to
Aboriginal rights. Lamer C.J.C. must be applauded for seeking to uphold the “noble”
ends of section 35(1) by adopting the judicially courageous step of casting aside colo-
nial and imperial law in entirety as unacceptable in modem terms. However, in de-
clining the challenge of reconciling modem and historical legal realities, Lamer C.J.C.
may have cast out the good parts of the common law with the bad. What if a fair
reading of imperial common law reveals a larger category of rights than that secured
by Van der Peet? By avoiding “murky historical waters”, the Court may be depriving
Aboriginal peoples of the opportunity to show that, on a correct interpretation of the
colonizers’ law, they had (and arguably still have) a larger bundle of rights than the
“integral to a distinctive culture” test allows them. If this were the case, then section
35(1), as interpreted by Van der Peet, would not be so “noble” after all.
To illustrate this point, reference to Connolly”‘ is helpful. In that case, Cree mar-
riage law was held to continue in force after the assertion of British sovereignty. It
was applied as a British law because, inter alia, it resembled marriage practices fol-
lowed by other societies at “all times and under all circumstances”; “barbarous” as-
pects of the custom, like polygamy, were “incidental” and could therefore be ig-
nored.” However, if Cree marriage custom embodied an approach to marriage that
was essentially universal in all human societies, it would have failed the “integral to a
distinctive culture” test, for customs that are “true of every human society” are neces-
sarily excluded by that test.”‘ Might polygamy qualify on the grounds that it is not
universal? Likely not, for the integral to a distinctive culture test also says that cus-
toms “incidental” to integral customs are excluded. A fortiori, customs like polygamy
incidental to non-integral customs would probably not qualify either. In short, had
Monk J. applied the “integral to a distinctive culture” test in 1867, he would have re-
fused to apply Cree custom in this case (though he might have recognized the validity
of the marriage for some reason independent of Native custom).
The implications of this result are startling. Not only would Native marriages
throughout British North America have been deprived of their assumed legal founda-
tion but so would every other aspect of Aboriginal life regulated by customs that were
“5Ibid. at 534-35.
“6Supra note 14.
“‘ Ibid. at 115,134.
” Van der Peet, supra note 110 at 554.
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not culturally integral. Assuming that they could have been identified, non-integral
customary laws would have been woven into the fabric of Aboriginal customary sys-
tems. To deny their continued legal validity would have led to the disintegration of
Aboriginal systems as functioning normative systems capable of regulating and
guiding human behaviour.” These culturally “incidental” customs might have been
dispensable individually, but the sudden abrogation of all such customs would have
stripped Aboriginal customary systems of their subtlety and richness, transforming
multi-dimensional, sophisticated systems into flat, one-dimensional sets of culturally
core norms standing isolated and unworkable on an otherwise deserted legal land-
scape. The common law would not have produced such a result. Judges would not
have presumed to exercise the legislative function of picking and choosing which
customs qualified as integral and which did not; nor would they have applied a con-
cept of continuity that deprived local people of functioning legal systems. In other
words, the “integral to a distinctive culture” test is inconsistent with the separation of
powers, the rule of law, and the dictates of fairness-the three justifications for the
imperial common law’s principle of continuity.
This analysis confirms that the Van der Peet concept of continuity cannot provide
a legal explanation of the historical meeting of Aboriginal and non-Aboriginal legal
systems. It also confirms that the common law recognized a broader range of Abo-
riginal customs than the “integral to a distinctive culture” test. This conclusion and its
implications can be illustrated by the following series of formulae. The Van der Peet
test implies severing customary law into two categories, such that the totality of a na-
tion’s law at the time of European contact can be expressed by this formula:
preCCL = ICL + -ICL
Where “preCCL” represents pre-contact customary law, “ICL” represents integral
customary law, and “-ICL” represents non-integral customary law. If “CAW’ repre-
sents constitutional Aboriginal rights under section 35(1), then under Van der Peet the
following formulae are true:
and
CAR = ICL
CAR = preCCL – -ICL
The Aboriginal customary laws recognized by the imperial common law principle
of continuity, on the other hand, are captured by the following formula:
CLAR = preCCL + postCCL
Where “CLAW’ represents common law Aboriginal rights, “preCCL” represents pre-
contact customary law and “postCCL” represents new customary laws (if any) arising
after European contact (whether it includes or excludes customs adopted after the as-
sertion of British sovereignty depends on whether the nation retains some “quasi-
“‘ For a similar argument, see Barsh & Henderson, supra note 132 at 1001.
1999]
M.D. WALTERS – ABORIGINAL CUSTOMS
legislative” power). In the above formula, both “preCCL” and “postCCL” are as-
sumed to exclude any customs that are mala in se or inconsistent with British sover-
eignty. The following conclusions can therefore be drawn:
and, indeed,
and therefore,
preCCL > ICL
preCCL + postCCL > ICL
CLAR > CAR
In short, it can be said that constitutional Aboriginal rights under section 35(1) are
those customs selected as deserving of constitutional protection from a larger body of
common law Aboriginal rights. The selection criteria, the “integral to a distinctive
culture” test, therefore narrows the range of Aboriginal rights otherwise recognized
by common law. What happens to the unselected common law Aboriginal rights after
1982? Since it would be contrary to the general spirit behind the entrenchment of
Aboriginal rights in 1982 to conclude that section 35(1) extinguished certain common
law Aboriginal rights,'” it must be concluded that there remains a set of non-
constitutional Aboriginal rights at common law (or “-CAR’), defined by the follow-
ing formula:
or
-CAR = (preCCL – ICL) + postCCL
-CAR = -ICL + postCCL
First Nations in Canada should therefore consider, when constructing their litiga-
tion strategies, whether it is worth arguing that non-integral and/or post-contact cus-
tomary laws (if unextinguished) still have common law status outside the protective
boundaries of section 35(1). The only difference between constitutional Aboriginal
rights and non-constitutional Aboriginal rights is that post-1982, the latter can be lim-
ited or extinguished by any clear and plain legislative instrument, but the former can
only be limited by measures that meet the strict standards of the Sparrow justification
test.
The value of the above argument is that it reconciles the imperial common law
continuity principle with the Van der Peet “integral to a distinctive culture” test: the
former defines common law Aboriginal customs, the latter defines constitutional Abo-
riginal customs. It also explains why Lamer C.J.C. can apply the imperial common
law principle of continuity to define the continuity of French civil law in Quebec, but
a narrower theory of continuity to define Aboriginal rights under section 35(1). The
difference in approaches is due not to discriminatory treatment but to the different le-
’90 See generally Barsh & Henderson, ibid. at 1009: by rejecting the common law principle of conti-
nuity, Van der Peet represents “a doctrine of ex post facto judicial extinguishment.’
748
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gal status of the laws at issue: the imperial common law principle of continuity is used
to explain the survival of French civil law in Quebec in circumstances in which that
law is not constitutionally protected from legislative infringement. In contrast, the
“integral to a distinctive culture” test is used to define the status of Aboriginal rights
today in light of the fact that they are constitutionally protected from legislative in-
fringement. If a Quebec “distinct society” clause were entrenched in a justiciable con-
stitutional provision, then perhaps the Court would have to develop a similar sort of
test to determine which aspects of the civil law system that survived (initially at least)
under the imperial common law would qualify for special constitutional protection.’92
The idea that the Van der Peet test serves to identify constitutional Aboriginal
rights from a larger pool of common law Aboriginal rights is, however, not without
problems. The text of section 35(1) suggests that all “existing” Aboriginal rights were
entrenched. Furthermore, Lamer C.J.C. insists not only that section 35(1) includes all
common law Aboriginal rights but that the “integral to a distinctive culture” test ex-
tends protection to rights not acknowledged at common law. Whether one considers
Van der Peet as expanding or restricting Aboriginal rights as defined at common law
will therefore depend on how one interprets common law history.
The reason for the narrow view of common law rights by the Court may be the
desire to reconcile two conflicting aims: (i) that all common law Aboriginal rights
should be regarded as entrenched, and (ii) that the entrenchment of such group rights
in a largely “liberal” Constitution emphasizing individual rights should be limited to
certain “special” rights.’92 If it is accepted that constitutional Aboriginal rights must be
truly “special”, then it would have been preferable to give the common law its proper
interpretation and then to consider why common law rights were elevated to constitu-
tional status. This approach would have exposed, and allowed a rational discussion
about, the real issue underlying Van der Peet: why certain Aboriginal common law
rights might be deserving of constitutionalization and others not.
Of course, once this issue is exposed as the real concern arising from the Court’s
decision in Van der Peet, the question that Lamer C.J.C. wanted to avoid addressing-
i.e., why common law rights were elevated to constitutional status’9 –can be exam-
ined. Although it is beyond the scope of this article to develop an argument about the
true purpose of entrenchment of common law Aboriginal rights, it is suggested that
the protection of distinctive Aboriginal cultures was at best only one of the reasons.
Another, more important reason why Aboriginal rights deserve “special constitutional
status” in a liberal-democratic Constitution is that it is inconsistent with a true sense
of equality and democracy to allow one political entity, i.e., non-Aboriginal peoples
(through the federal Parliament), to extinguish unilaterally the rights, laws, and cus-
toms of other political entities, i.e., the First Nations. If this is a purpose of section
,’ For a satirical comparison of the “integral to a distinctive culture” test for Aboriginal rights and
the potential effects of a “distinct society” clause for Quebec, see Barsh & Henderson, ibid. at 995-97.
1 A similar critique of Van der Peet is made in “What’s the Connection?”, supra note 151 at 131.
‘ See supra note 161.
1999]
M.D. WALTERS – ABORIGINAL CUSTOMS
749
35(1), it does not seem at all inappropriate to include within its protective boundaries
all Aboriginal rights, laws, and customs inherent in the common law whether integral
to pre-contact Aboriginal culture or not.
Conclusion
When articulating a modem theory of Aboriginal rights in former British colo-
nies, is it better to save common law history from disgrace, as Brennan J. did in Aus-
tralia, or to discard common law history as irredeemable and argue from first princi-
ples, like Lamer C.J.C. did in Canada? Both approaches are concerned with achieving
the “noble” end of protecting the continuity of Aboriginal identities. Both accept that
this end involves the recognition by the non-Aboriginal legal system of at least certain
Aboriginal laws and customs. However, the former secures this end through internal
continuity of common law rules and principles, whereas the latter secures it through
discontinuity between past and present law.
It may be argued that there is something compelling about a conscious judicial
break with the imperial and colonial legal pasts. A break of this nature might be re-
garded by citizens of Canada, Australia, and New Zealand as an indication that their
respective legal systems had, on this issue, developed genuinely indigenous sources
untainted by distasteful associations with shameful aspects of imperialism and coloni-
alism. It might even be interpreted as another long overdue chapter in the decoloniali-
zation story, confirming (like the debates about patriation of the Constitution in Can-
ada in the early 1980s and republicanism in Australia today) the insignificance of
British links for present and future constitutional development.
A conscious break might be an attractive solution to Aboriginal peoples in par-
ticular. This is especially so if the break signalled the birth of new legal orders in
which their laws and customs were no longer seen as inferior to the “legally alien'””
common law and subjected to its many limitations (like Crown sovereignty), but were
instead accorded equal status with the common law so as to produce separate sets of
distinctly local and non-derivative Canadian, Australian, or New Zealand legal sys-
tems. Finally, the conscious break option might appeal to the legal historian. It would
let judges, who may be untrained in and unaccustomed to historical analysis, avoid
“murky historical waters”. Legal history would then focus on the work of professional
historians and not be diverted by the revisionist, ahistorical tendencies of legal meth-
odology. The disgrace of the common law, if any, would then be apparent for all to
see, not interpreted away retrospectively by well-meaning judges.
Is there a case, then, for basing modern Aboriginal rights law on imperial legal
doctrine? Can a vigorous (re)interpretation of common law history-using traditional
common law methodology-produce a suitable foundation for Aboriginal rights to-
day? There are grounds for answering these questions affirmatively. To begin with,
” Borrows & Rotman, supra note 2 at 28.
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the “imperial” label is used throughout this article to describe the common law princi-
ple of continuity in order to emphasize that it is a principle deeply embedded within
British legal history and that it is distinguishable from “municipal common law”. It is,
however, symbolically unfortunate and substantively misleading. It suggests that the
hierarchical structure of empire continues to inform the law, not only as between “na-
tive” and “settler” but also between colonial periphery and imperial centre. A modem
legal interpretation of common law history in Canada, New Zealand, and Australia
would begin with the imperial common law principles that pre-existed particular local
experiences of colonialism, but these a priori principles would be given full substan-
tive content in each jurisdiction only after consideration of those customs and usages
arising from Aboriginal-British relationships from which norms regulating their be-
haviour can be inferred.’9’ The resulting doctrine of Aboriginal rights may derive in
part from a priori imperial legal principles, but it is ultimately a form of “inter-
societal” law bridging Aboriginal and non-Aboriginal legal orders.”‘ Interpreting our
legal pasts in this manner would, says Slattery, allow the focus to shift from “imperial
history” to “local history, tradition and perspectives.””‘ 7 If so, then the outdated “impe-
rial” label can be dropped and the body of inter-societal law that emerges can simply
be regarded as a distinct element of “local” common law. The only danger in doing so
would be that this “local” law might be confused with local municipal law and, as
seen, Aboriginal law might exist in Native municipal systems distinct from local mu-
nicipal systems. Indeed, it is partly to draw attention to this possibility that the expres-
sion “imperial” is used in this article.’9 ‘ The solution, then, is to select a less pejorative
term than “imperial” to describe the legal dimension within which such Native mu-
nicipal systems exist-like, for example, “federal”.” Thus, Native and settler munici-
pal systems would be said to coexist not under an overarching imperial constitution,
but within common law federal constitutions (that arose long before the statutory fed-
erations of Canada and Australia were created), comprising distinct Native and settler
units.
Other aspects of the common law might also be reconsidered under the normative
common law method. Even the most sacred principles of the common law-e.g.
Crown sovereignty and parliamentary supremacy-could be revisited. In recent years,
the meanings of these concepts have been revised-but not rejected outright-by
“‘ See “Aboriginal Sovereignty”, supra note 110; “Aboriginal Title”, supra note 110; “Understand-
ing Aboriginal”, supra note 110; and “Relations”, supra note 110.
196 See “Aboriginal Title”, ibid.; and “Understanding Aboriginal”, ibid. See also J. Borrows, “With
or Without You: First Nations Law (in Canada)” (1996) 41 McGill L.J. 629 at 634.
“‘ B. Slattery, “The Organic Constitution: Aboriginal Peoples and the Evolution of Canada” (1996)
34 Osgoode Hall L.J. 101 at 107.
,’ For an example of why this distinction may be important, see M.D. Walters, ‘Aboriginal Rights,
Magna Carta and Exclusive Rights to Fisheries in the Waters of Upper Canada” (1998) 23 Queen’s
L.J. 301 at 352-67.
‘” On Aboriginal rights as part of “federal common law”, see Roberts v. Canada, [1989] 1 S.C.R.
322 at 340, 57 D.L.R. (4th) 197; and the commentary by Clark, supra note 30 at 30-32, and by Slat-
tery in “Aboriginal Sovereignty”, supra note 110 at 702.
1999]
M.D. WALTERS – ABORIGINAL CUSTOMS
courts in the United Kingdom to reflect the political reality of that country’s member-
ship within the European Union.’ It would be ironic indeed if courts in former British
colonies clung to outdated interpretations of Crown sovereignty and parliamentary
supremacy long after they had ceased to be followed by British judges. Finally, there
remains the practical and theoretical problems associated with having non-Aboriginal
judges defining culturally distinct Aboriginal customs. If this is one of the legacies of
imperialism and colonialism, it is not one that can be remedied by a conscious judicial
break with imperial and colonial legal history. Until more Aboriginal judges are ap-
pointed, the very same problems will exist under the new test for Aboriginal rights
that is adopted to replace the common law. Whatever the test, then, non-Aboriginal
judges can do no better than remember Lamer C.J.C.’s assertion that Aboriginal rights
represent the “bridging of aboriginal and non-aboriginal cultures” and to make genu-
ine efforts to understand and give equal weight to the Aboriginal perspective.?’
In short, refusal to break with common law history does not imply adherence to
outdated imperial legal assumptions and attitudes. As Borrows and Rotman have said,
constructing a common law doctrine of Aboriginal rights involves “[c]learing a site in
the common law” for Aboriginal peoples for the limited purpose of “providing a toe-
hold to bridge out of colonial territory into one they can call their own.”‘ The exploi-
tation by Aboriginal peoples of the common law for this purpose is not “consent to
colonialism “‘
Indeed, most of the ends achieved by the “conscious break” resulting from a nor-
mative political interpretation of Aboriginal rights could also be achieved by main-
taining continuity between past and present legal principles under a normative com-
mon law interpretation. If the content of Aboriginal rights could be the same under
either approach, is one better than the other? In pragmatic terms, the normative com-
mon law method may be better: it allows Aboriginal peoples to say: “We claim right x
because it is our legal right” whereas the normative political method allows them
merely to say: “We claim right x because it ought to be our legal right” The former is,
of course, more persuasive. It is persuasive not because “our sense of justice is of-
fended by the violation of an obscure law of the seventeenth or eighteenth century”‘2 ‘
but because our sense of justice is offended by the violation of legal norms that, al-
though articulated in obscure cases of past centuries, are so fundamental to the com-
mon law that they transcend their initial imperial and historical contexts.
‘m R. v. Secretary of State for Transport, ex parte Factortame, [1991] 1 A.C. 603, 1 All E.R. 70
(H.L.); H.W.R. Wade, “What Has Happened to the Sovereignty of Parliament?” (1991) 107 L.Q. Rev.
1; J. Eekelaar, “The Death of Parliamentary Sovereignty-A Comment” (1997) 113 L.Q. Rev. 185;
and T.R.S. Allan, “Parliamentary Sovereignty: Law, Politics and Revolution” (1997) 113 L.Q. Rev.
443.
‘O’Delgamuukw, supra note 125 at 1065-66.
’02 Supra note 2 at 28.
203 ibid
“Relations”, supra note 110 at 626. Webber argues that it is “wrong” to base Aboriginal rights on
case law that pre-existed the colonialization of North America.
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Aside from this pragmatic concern, however, the argument about the continued
role of the common law is like many arguments about how constitutional reform
should address the legacy of imperialism: the answer ultimately depends upon what
sort of symbolic gestures we want to make. But even if judges do decide, for symbolic
reasons, to give up on imperial and colonial common law history as a doctrinal foun-
dation for modem Aboriginal rights, the above discussion of the Canadian experience
suggests that they should first read that common law in its best legal light and then en-
sure that the new foundation for Aboriginal rights they create expands rather than nar-
rows rights otherwise secured by such a “normative common law” interpretation of
imperial and colonial legal pasts.
Will securing continuity of Aboriginal identities through continuity of Aboriginal
custom at common law as interpreted by judges committed to the continuity of pres-
ent and past common law rules and principles produce convincing interpretations of
legal history? The common law lawyer’s sense of order is violated if the reinterpretive
process is not undertaken; the historian’s sense of order is violated if reinterpretation
obscures the realities (whether good or bad) of past law. In the end, the options are not
mutually exclusive. We can, and should, read the law in a historical sense, as part of
understanding our national histories. This process, however, need not preclude us
from looking at law as a normative system for purposes of legal discourse-for the
purpose of litigating real issues affecting living peoples. In a common law system,
reinvention of the law by judges is a continuous process in which legal history is re-
interpreted with each new case.
