Case Comment Volume 42:4

The Supreme Court’s Van der Peet Trilogy: Naive Imperialism and Ropes of Sand

Table of Contents

The Supreme Court’s Van der Peet Trilogy:

Naive Imperialism and Ropes of Sand

Russel Lawrence Barsh and James Youngblood Henderson*

In R. v. Van der Peet, a majority of the Supreme
Court of Canada has substantially modified the test for
the existence of Aboriginal rights unanimously adopted
six years earlier in R. v. Sparrow. Under the old test, the
proponent of an Aboriginal right to engage in some ac-
tivity had to show that it was practiced aboriginally and
was never properly extinguished. Under the new test,
the proponent must also establish the centrality of that
activity to the precolonial Aboriginal culture. Even if
this higher threshold is met, the right nonetheless exists
only to the extent that the Justices deem it to be com-
patible with Anglo-Canadian law as a whole. Activities
in which First Nations have engaged continuously for
centuries may therefore be extinguished judicially,
notwithstanding section 35 of the Constitution Act,

The authors question the logic of determining the
centrality of particular activities to a culture, arguing
that cultural elements are interdependent and ever-
changing, and that their cultural significance is com-
pletely subjective. To illustrate this point, the authors
apply the reasoning in Van der Peet to the proposed
recognition of Quebec as a “distinct society”, with ab-
surd results that nullify the federalist aims of such a
provision. As an alternative, it is suggested that the Su-
preme Court follow the reasoning of Australia’s High
Court in Mabo v. Queensland, and rule that Aboriginal
legal systems –
as opposed to particular activities or
rights – were imported intact into the common law.

Dans l’ar&t R. c. Van der Peet, la decision majori-
taire de la Cour supreme a modifi6 de manihre subs-
tantielle le test servant A ddterminer l’existence d’un
droit ancestral. En vertu de l’ancien test, adopt6 A
l’unanimit6 six ans plus t6t dans l’arr& R. c. Sparrow,
toute personne afftirmant l’existence d’un droit ances-
tral devait dtmontrer qu’il avait dt6 exerc6 depuis des
temps ancestraux et qu’il ne s’6tait jamais 6teint. En
vertu du nouveau test, il importe 6galement de ddmon-
trer que l’activit6 en litige jouait un rtle central dans la
culture autochtone avant la conqu~te. De plus, mame si
l’existence d’un droit est 6tablie, il ne peut Etre exerc
que dans Ia mesure oh il est jug6 compatible avec le
droit anglo-canadien. Des activitds auxquelles les peu-
pies autochtones se livrent depuis des si cles pourraient
ainsi se voir interdites, et ce malgr6 I’article 35 de Ia
Loi constitutionnelle de 1982.

Les auteurs remettent en question la logique de Ia
Cour suprame dans la ddtermination du rfle central
d’une activit6 dans la culture autochtone, affinant
pluttt que les 06ments qui forment une culture sont
interddpendants et en constante 6volution. Pour illustrer
cette affirmation, les auteurs appliquent le raisonne-
ment de la Cour dans l’arr& Van der Peet A la proposi-
tion de reconnaissance du statut de socidt6 distincte au
Qudbec. Ce raisonnement mane A des conclusions ab-
surdes, qui viennent nier les buts f~dralistes poursuivis
par une telle provision. Les auteurs proposent plut~t
que la Cour suprame adopte le raisonnement de ]a High
Court d’Australie dans l’arrt Mabo c. Queensland, en
concluant que des systimes juridiques autochtones en-
tiers –
plut&t que des droits spcifiques – ont 6t6 in-
corpords a la common law.

. Russel Lawrence Barsh, J.D. (Harvard), Associate Professor of Native American Studies at the
University of Lethbridge (Alberta); James Youngblood Henderson, Bear Clan of Chickasaw Nation,
J.D. (Harvard), Research Director of the Native Law Centre, College of Law, University of Sas-

McGill Law Journal 1997
Revue de droit de McGill
To be cited as: (1997) 42 McGill LI. 993
Mode de rtfdrence : (1997) 42 R.D. McGill 993



[Vol. 42

I. A Fable

I1. A Critical Analysis of the Trilogy
A. What the Supreme Court Said
B. A Doctrine Plucked from Thin Air
C. Centrality and Paternal Illusion

1. Centrality Cannot Be Objectified
2. The Search for Centrality Presumes the Independence of Cultural


3. Centrality Itself Is Not Static

D. Was “Centrality” a Stillbirth?

Is the Van der Peet Trilogy “Law”?

III. What Is the Alternative?




I. A Fable’

In 1999, a last-ditch effort to save Confederation before the Millennium re-
sulted in the enshrining of a “distinct society” clause in the Canadian constitu-
tion. Scarcely a year had passed when the Supreme Court was confronted with
three related appeals from Quebec invoking this new, and as yet untried constitu-
tional principle. The most sensational case, von Pietat, was brought by a Mont-
real Lutheran challenging Quebec legislation requiring the display of Roman
Catholic messages and Papal symbols in public places. In Frites Nationales, the
defendant Quebec corporation was charged with transporting potatoes into the
province without complying with all applicable federal marketing and inspection
regulations. Lastly, the plaintiff in Hockey Night Promotions Ltd. sought relief
from the restriction of athletic broadcasting and product-endorsement franchises
to Quebec firms.

The carefully reasoned majority opinion of Chief Justice Cipher in Hockey
Night explained that the term “distinct” must not be confused with the term
“distinctive”. While the former term implied a differentiation from all other hu-
man societies, the latter referred to those elements that have characterized a par-
ticular society, and “made it what it was”. It was obvious that the purpose of en-
trenching the “distinct society” clause in the constitution was to reconcile the
distinctness of Quebecois society with the sovereignty of the Crown. Hence the
threshold question for the courts was whether a claim of Quebecois rights was
based on traditions or practices that make Quebec “distinct”. This analysis re-
quired courts to take into account the Quebecois perspective, but Cipher C.J.
warned against attaching rights to everything that the Quebecois themselves
might consider “significant”. Only those things that are absolutely central to
Quebecois identity, and that have distinct historical roots in Quebecois society
prior to the accession of Crown sovereignty, should be considered. Traditions and
practices that are simply “incidental”, or that reflect the shared development of
francophone and anglophone Canada, cannot be elevated to the status of consti-
tutional rights.

Applying these criteria to the facts in Hockey Night, Cipher C.J. acknowl-
edged the argument that the sport of hockey is integral to the contemporary cul-
ture of Quebec, but held that the Province had failed to establish that hockey was
played there in 1763. It was indeed possible, as certain amici curiae contended,
that the seventeenth-century habitants had played a kind of proto-hockey, derived
from the ice sports of First Nations, but the very nature of this argument under-
mined the defendant’s assertion of “distinctness”. Even if it were to be assumed,
arguendo, that the playing of this sport was “distinctly” Quebecois (which any

‘We cheerfully acknowledge the inspiration afforded us by Professor J. Borrows, “The Trickster.
Integral to a Distinctive Culture” (1997) 8:2 Constitutional Forum 27, whose Anishinabe tale per-
suaded us that non-Aboriginal readers should have a fable told within their own distinct (or distinc-
tive?) cultural context.


[Vol. 42

Canadian schoolchild would undoubtedly dispute), the case at bar did not involve
the freedom of Quebecois to play hockey, but the opportunity of non-Quebecois
firms to profit from hockey. We must be very careful, the learned Chief Justice
stressed, to identify with precision the nature of the rights claimed. While the
Provincial Court Judge had found that “playing and watching hockey have long
held a deep and cherished place in Quebec society”, she made no finding with re-
spect to the historical centrality of commercial mass marketing of athletic events.

Douteux J. dissented on the grounds that the mass marketing of athletic con-
tests, far from being “incidental” to the right to observe and participate in such
events, was essential for raising the capital required to build arenas, train and pay
professional athletes, and maintain broadcasting facilities. She also reasoned that
the use of 1763 as a reference point for the distinctness of Quebecois society was
arbitrary, restrictive and a denial of the natural right of cultures to evolve and
change in response to the environment in which they find themselves.

The Supreme Court disposed of the two companion cases within the frame-
work developed by the Chief Justice in Hockey Night. In von Pietat, the majority,
per Cipher C.J., agreed that Catholicism had long formed a “distinctive” element
of Quebecois society, but then reasoned that this Church was nonetheless not an
institution that rendered Quebec “distinct” from the rest of Canada or, for that
matter, from societies elsewhere in the world. The majority referred to the recent
public debate in France over the association of the baptism of King Clovis and
the founding of the French nation. There was plainly no consensus about the
significance of the Church to pre-1763 development of francophone societies.
Douteux J. again dissented, arguing that the majority failed to accord sufficient
weight to the views of the Quebecois themselves.

In Frites Nationales, the Supreme Court unanimously found that poutine is a
“distinct”, as well as distinctive, historical source of sustenance for Quebecois.
Its origins shrouded in antiquity, poutine was obviously impossible without pota-
toes, which clearly had been consumed in Nouvelle France prior to 1763. There
could be no doubt about Quebec’s right to ensure for itself a sufficient supply of
this tuber for its subsistence. Cipher C.J. explained for the Court, however, that
this did not mean that Quebec enjoyed an unlimited constitutional right to import
potatoes with no regard for the interests of Canadians as a whole. Rather, the
“distinct society” clause made it incumbent on Ottawa to exercise its regulatory
jurisdiction in a manner that was “respectful” of Quebec’s appetite for poutine,
and reserved for Quebec a priority in the domestic distribution of potatoes. Since
no evidence had been submitted at trial regarding the extent to which the federal
minister had taken account of the poutine requirements of Quebec, the case was
remanded for further proceedings consistent with the Supreme Court’s rulings.




II. A Critical Analysis of the Trilogy

Ridicule? Bien siir. No more ridiculous, however, than the Supreme Court’s recent
ruminations on “aboriginal rights” in R. v. Van der Peef (and the two companion cases
of the Van der Peet trilogy3 ).

Although we attempted to reproduce the logical structure of the Van der Peet tril-
ogy faithfully in our fable, we do not wish to risk any accusation of distortion. We will
permit the learned Justices to speak for themselves.

A. What the Supreme Court Said
Dorothy Van der Peet, a Sto:lo, was prosecuted for selling ten salmon. The British
Columbia Provincial Court found that Sto:lo trade in salmon was originally “incidental
and occasional only”, and not a part of a “market system”, although a commercial
market did develop by 1846 in connection with Hudsons Bay Company posts! Writing
for a majority of the Supreme Court, Chief Justice Lamer embraced what he character-
ized as a “purposive approach” to the task of defining “aboriginal rights” under section
35(1) of the Constitution Act, 1982’ The purpose of enshrining a reference to
“aboriginal rights” in the constitution, he asserted (without any recourse to learned
treatises or the travaux prdparatoires), was to achieve a “reconciliation of the pre-
existence of Aboriginal societies with the sovereignty of the Crown.”‘ The key terms in
this formula are “pre-existence” and “reconciliation”.

“Aboriginal”, the Chief Justice reasoned, necessarily refers to what existed on this
continent before the Crown arrived.! It is therefore the courts’ task to ascertain “the
crucial elements of those pre-existing distinctive societies”, which is to say those ele-
ments which are “integral” to the identity of each First Nation.’ The significance of a
challenged practice to the First Nation itself is a necessary but insufficient factor;9 to
qualify for section 35(1) protection, the practice must be “a central and significant part
of the society’s distinctive culture”‘” and must not have existed in the past “simply as an
incident” to other cultural elements” or merely as a response to European influences.’2

2 [1996]2 S.C.R. 507,4 C.N.L.R. 177 [hereinafter Van der Peet cited to S.C.R.].
‘R. v. N.TC. Smokehouse Ltd., [1996] 2 S.C.R. 672,4 C.N.L.R. 130 [hereinafter Smokehouse cited
to S.C.R.]; and R. v. Gladstone, [1996] 2 S.C.R. 723, 4 C.N.L.R. 65 [hereinafter Gladstone cited to

‘Van der Peet, supra note 2 at 528.
Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
6 Van der Peet, supra note 2 at 539.
‘ Ibid. For those benighted readers who have difficulty conceiving of the Crown “arriving” any-
where, we recommend W.P. Kinsella, “The Queen’s Hat’ in Moccasin Telegraph (Markham, Ont.:
Penguin, 1983) 141.

‘ Van der Peet, ibi. at 548-49.
9 Ibid. at 552.
“Ibid. at 553, 564 [emphasis added].
“Ibid. at 560.



[Vol. 42

A challenged practice, however, need not distinguish a First Nation from all other hu-
man societies.”

“Reconciliation” implies a judicial balancing process which “takes into account the
Aboriginal perspective while at the same time taking into account the perspective of
the common law,” the Chief Justice explained, adding that “[t]rue reconciliation will,
equally, place weight on each.””‘ Aboriginal perspectives must be rendered “cognizable
to the non-Aboriginal legal system'”‘ through this process of judicial adjustment or ac-

The majority of the Supreme Court thus proposed a two-stage decision-making
process. In the first stage, judges must examine the historical roots of the challenged
practice to determine its centrality to the precolonial indigenous culture. If it passes this
test, the challenged practice must then be adjusted to make it “cognizable” to the im-
ported legal system. Only then can the practice enjoy the status of an “existing right”
under section 35(1).

B. A Doctrine Plucked from Thin Air
As an initial critique, we note that this decision-making process adds two hurdles
to the Supreme Court’s analysis of “existing aboriginal rights” in R. v. Sparrow.'” Ac-
cording to Sparrow, a practice “existed”, and became constitutionally entrenched in
1982, if it had existed prior to the accession of Crown sovereignty, and had not clearly
and properly been extinguished by the Crown before 1982. Van der Peet now requires,
in addition, that the precolonial practice be shown to have been “central” to the First
Nation’s culture (which arguably could result in a far smaller set of eligible practices)
and be further “reconciled” with British law (implying that the right to engage in the
practice may have been circumscribed or extinguished prior to 1982 by the mere exis-
tence of British settlement).”

This second hurdle –

with British law –
“reconciliation” in Sparrow:

extinguishment by the mere implication of inconsistency
is a distortion of the Dickson Court’s use of the term

Rights that are recognized and affirmed are not absolute. Federal legislative
powers continue, including, of course, the right to legislate with respect to In-

‘2 Defenders of a practice must demonstrate “continuity” with pre-contact conditions (ibid. at 554),
although this does not disqualify practices that have evolved or changed as a result of contact with
European cultures (ibid. at 558-59,561-62).

‘” See the Chief Justice’s discussion of “distinctness” as opposed to “distinctiveness”, ibid. at 560-
61. The challenged practice must simply be one of the elements that “made the society what it was,”
the Chief Justice explained.

14Ibid at 55 1.
” Ibid Compare Oyekan v. Adele, [1957] 2 All E.R. 785 at 788 (interests in land under indigenous
legal systems should not be expropriated without compensation, “even though those interests are of a
kind unknown to English law”).

16 [1990] 1 S.C.R. 1075, 3 C.N.L.R. 160 [hereinafter Sparrow cited to S.C.R.].
‘” See supra notes 8-10, which refer to the “centrality” and “integrality” tests.




dians pursuant to s. 91(24) of the Constitution Act, 1867. These powers must,
however, now be read together with s. 35(l). In other words, federal power
must be reconciled with federal duty and the best way to achieve that recon-
ciliation is to demand the justification of any government regulation that in-
fringes upon or denies aboriginal rights!’8

In other words, the Dickson Court used “reconciliation” to refer to a limitation on fed-
eral power, while the Lamer Court uses the same term to limit further the scope of
Aboriginal rights. The result is reminiscent of the United States Supreme Court’s con-
clusion, in Oliphant v. Suquamish Indian Tribe,” that the accession of American sov-
ereignty “implicitly” divested Indian tribes of those powers of self-government that
American courts decide today had been “inconsistent with their status” as Indians a
century ago.

Taken to its logical extreme, the “reconciliation” test has the effect of extinguishing
everything that had not already been judicially recognized prior to 1982. But this does
not reflect accurately the aims of Aboriginal constitutional negotiators, nor even those
of their non-Aboriginal opposites. In the words of one of them, Saskatchewan Premier
Roy Romanow, “[o]ne can argue that the purpose of inserting ‘existing’ might be to
freeze aboriginal rights as defined on 17 April 1982,” but “that view, which is offered
by many credible constitutional lawyers, is one that I do not share.”2 Furthermore,
more than a year before Van der Peet, the Royal Commission on Aboriginal Peoples
issued two reports on the nature of the Crown-Aboriginal relationship which spoke in
terms of “co-existence” and “partnership”, which is to say a sharing of powers and a
division of constitutional authority in furtherance of First Nations’ unextinguished right
to self-government.” The Chief Justice, however, did not refer to the Royal Commis-
sion’s views. “Reconciliation”, then, was pulled from thin air, in defiance of the main
trends in contemporary Canadian constitutional thought.

C. Centrality and Paternal Illusion

Apart from the problem posed by implying the circumscription of Aboriginal
rights by the mere existence of settlers, there are fundamental objections to the Su-
preme Court’s quest for the grail of “centrality”, which we believe is philosophically
hopeless and morally unjust. Three considerations lead us to this conclusion.

,Supra note 16 at 1109.
“435 U.S. 191 at 208ff. (1978). See R.L. Barsh & J.Y. Henderson, “The Betrayal: Oliphant v. Su-

quamish Indian Tribe and the Hunting of the Snark” (1979) 63 Minnesota L. Rev. 609.

20 R. Romanow, “Aboriginal Rights in the Constitutional Process” in M. Boldt & J.A. Long, eds.,
The Quest For Justice: Aboriginal Peoples and Aboriginal Rights (Toronto: University of Toronto
Press, 1985) 73 at 81. See our review and analysis of positions taken by Aboriginal negotiators, R.L.
Barsh & J.Y Henderson, “Aboriginal Rights, Treaty Rights, and Human Rights: Indian Tribes and
‘Constitutional Renewal’

(1982) 17:2 J. Canadian Studies 55.

“1 See Partners in Confederation; Aboriginal People, Self-Govemmen4 and the Constitution
(Ottawa: Minister of Supply & Services, 1993); and Treaty Making in the Spirit of Co-existence: An
Alternative to Extinguishment (Ottawa: Minister of Supply & Services, 1995).



[Vol. 42

1. Centrality Cannot Be Objectified

The extent to which an idea, symbol or practice is central to the cultural identity of
a particular society is inescapably subjective to that society –
or, in the jargon of an-
thropologists, emic (a matter of subjective meaning) rather than etic (a phenomenon
which can be reliably and consistently measured by outsiders).” Hence, that which is
most dear to a society may be overlooked or regarded as “incidental” by others. It may
be argued that non-Aboriginal judges are able to understand the inner meaning of
things from Aboriginal testimony. But we question whether a judge is ordinarily com-
petent to disregard the cultural testimony of an Aboriginal person on the basis that it is
erroneous or self-serving. Either judges possess sufficient expertise to reject any opin-
ion offered by Aboriginal persons about their cultures, or they must accept the opinion
of every Aboriginal witness – which we seriously doubt Canadian judges will do. This
dilemma has already arisen in the United States, where the courts have ruled that
American Indians’ religious practices enjoy constitutional protection only to the extent
that they are “central and indispensible” to the religious beliefs of particular groups.”‘
Determinations of “centrality” have generally been left to the trier of fact, with results
that have attracted substantial scholarly criticism.’ Without referring to the American
experience, Canada’s Supreme Court blithely copies it on an even grander scale, apply-
ing “centrality” to all rights of Aboriginal peoples.

2. The Search for Centrality Presumes the Independence of Cultural


The application of “centrality” to Aboriginal rights on this grander scale exacer-
bates the problem of distinguishing between what is “central” to a culture, and what is
merely “incidental”. Making any such distinction presumes that cultural elements can
exist independently of one another, so that the loss of one element does not compro-
mise the perpetuation or enjoyment of the others. This presumption of independence is,
in and of itself, utterly incompatible with Aboriginal philosophies, which tend to regard
all human activity (and indeed all of existence) as inextricably inter-dependent. At the

22 Compare the critical review of attempts to measure the existence of democracy and freedom in
R.L. Barsh, “Measuring Human Rights: Problems of Methodology and Purpose” (1993) 15:1 Human
Rights Q. 87. For the uninitiated, anthropological methodologists derived the emicetic distinction
from “phonemic” and “phonetic” in linguistics, which refer to the meaning and the sound of words,
respectively. Debates persist over whether there is any possibility of conveying meaning reliably
across cultures. See for example D. Tedlock, “Questions Concerning Dialogical Anthropology”
(1987) 43:4 J. Anthropological Research 325; D. Gewertz & F Errington, “We Think, Therefore
They Are? On Occidentalizing the World” (1991) 64:2 Anthropological Q. 80.

23Sequoyah v. Tennessee Valley Authority, 620 F2d 1159 at 1164 (6th Cir. 1980), certiorari denied
449 U.S. 953 (1980). This line of American decisions is reviewed in R.L. Barsh, “The Illusion of Re-
ligious Freedom for Indigenous Americans” (1986) 65 Oregon L. Rev. 363. Also see, more recently,
Lyng v. Northwest Indian Cemetary Protective Association, 485 U.S. 439 (1988).

2 See e.g. R.S. Michaelsen, “Law and the Limits of Liberty” in C. Vecsey, ed., Handbook of Ameri-
can Indian Religious Freedom (New York: Crossroad, 1991) 116. See also the submissions repro-
duced in Religious Freedom Act: Hearing before the Select Committee on Indian Affairs, United
States Senate, Senate Hearing 102-698 (1992).




same time, we consider that it is empirically fallacious.’ The notion of centrality in
human society is, we contend, as absurd as arguing that an ecosystem remains the same
after the removal of a few “incidental” species.”6 We wonder if the Supreme Court
would dare render an opinion as to what is “central” to modem Canadian society
(hockey? beer? the maple-leaf flag?). Centrality is a judicial fiction, an especially slip-
pery slope, and undermines Aboriginal societies by exposing their purportedly
“incidental” elements to judicial excision notwithstanding section 35 of the Constitu-
tion Act, 1982.

3. Centrality Itself Is Not Static

Cultures continue to change, reorder their priorities and revise their conceptions of
themselves. Indeed, the General Conference of UNESCO declared in 1966 that it is
“the right and the duty” of every people to develop its own culture’ Assuming, argu-
endo, that societies self-consciously identify certain elements of their life-ways as par-
ticularly positive or distinctive achievements, these cultural self-assessments are as
fluid as culture itself. This is as true of Canada as of Aboriginal peoples. We gravely
doubt that Thomas Chandler Haliburton would recognize many of the symbols or
practices that are dear to Canadians today, although his writings were definitive of the
Canadian self-image 150 years ago.’ Change (and arguments over its direction) is not
only essentially human, but essential for survival in a world of changing ecological and
political forces. To presume that Aboriginal societies are less dynamic or creative than
other cultures, or that they must remain stuck in time in order to remain authentic and
deserve to retain their rights, is sociological nonsense recalling the discredited social-
Darwinist conception of “primitivity”. To be sure, Chief Justice Lamer acknowledges
the fact that all cultures change, and calls upon his colleagues to be flexible in deter-
mining what is genuinely Aboriginal.” But his underlying paradigm nonetheless re-
quires the demonstration of precolonial roots, as well as the centrality of the challenged

‘ See, for example, Tewa anthropologist Alfonso Ortiz’s brilliant map of the inter-relationships of
ideas and practices within his own society, The Tewa World: Space, Time, Being, and Becoming in a
Pueblo Society (Chicago: University of Chicago Press, 1969) and sociologist Menno Boldt’s disqui-
sition on the necessity for allowing Aboriginal societies to develop and renew themselves as cultural
wholes, in Surviving As Indians: The Challenge of Self-Government (Toronto: University of Toronto
Press, 1993) at 180-90.

26 We recommend John Donne’s meditation, “For Whom The Bell Tolls”, which comprised an ele-
gant humanistic argument against the belief of some of Donne’s contemporaries that society could be
divided into important and incidential persons (see J. Donne, “Devotions Upon Emergent Occasions
– Meditation 17″, reprinted in H. Gardner & T. Healy, eds., John Donne: Selected Prose (Oxford:
Clarendon Press, 1967) 100 [as No. 7]; see also R.H. Ray, A John Donne Companion (New York:
Garland, 1990) at 94-95).

27 Declaration of the Principles of International Cultural Co-operation, UNESCO, Gen. Conf., 14th
Sess. (4 November 1966), art. 1(2), reprinted in United Nations, Human Rights: A Compilation of In-
ternational Instruments, Volume 1 (Second Part) (New York, 1994) 595 at 596 (UN Doc.
ST/HRII/Rev. 5 (Vol. I/Part 2), Sales No. E.94.XIV.1 (Vol. I, Part 2)).

” See e.g. T.C. Haliburton, Sam Slick (Toronto: McClelland & Stewart, 1941).
29 Van der Peet, supra note 2 at 557.



[Vol. 42

practice to precolonial Aboriginal society. A precolonial practice is permitted to evolve,
but an Aboriginal culture cannot adopt new elements and remain genuine.

Even the concept of “culture” is inherently cultural and, in Van der Peet, “culture”
has implicitly been taken to mean a fixed inventory of traits or characteristics.” An-
thropologists long regarded “culture’ as something that could be observed, counted,
measured and then compared, and tribal societies were routinely characterized as sim-
ple, transparent and static.’ The aim of fieldwork for more than a century was to pro-
duce a comprehensive ethnography –
a book that contained everything that was useful
or interesting about a society. From this conceit –
that a “simple” society could be de-
scribed adequately in one book when European society has not even begun to exhaust
its possibilities (and its ambiguities) in a hundred thousand books –
arises the pre-
sumption that a Euro-Canadian jurist today can sit in judgment of what a Heiltsuk or
Sheshaht once believed or valued most.

The fundamental issue is the identity of the decision-maker. The Van der Peet test
entrenches European paternalism because the courts of the colonizer have assumed the
authority to define the nature and meaning of Aboriginal cultures. The Supreme Court
has declared to Aboriginal peoples, in effect, “We shall decide which of your values
and practices can be reconciled with our culture, and with our vision of Canada.” It has
done so evidently with the best of intentions – but we all know that best intentions
alone can be dangerous.

The Lamer Court’s naive imperialism betrays the efforts of the Dickson Court to
bring a degree of accountability and self-restraint to Crown dealings with Aboriginal
nations. In Guerin v. The Queen,’2 the Dickson Court characterized the Crown as a
“fiduciary”. The fiduciary concept, however, is inherently ambiguous and two-edged.
It can be construed (as it was by then-Chief Justice Dickson in Guerin) by analogy to a
trust relationship in private law, which implies strict accountability to the interests of
the beneficiary. Alternatively, it recalls the “sacred trust of civilization” notion, which
former generations of bureaucrats in London and Ottawa wielded in justification of
paternalism and oppression. Unfortunately, we believe the Lamer Court has embraced
the latter construction, as we demonstrate below in our discussion of R. v. Gladstone.

” We can find no precise equivalent of European concepts of “culture” in Mi’kmaq, for example.
How we maintain contact with our traditions is tan’telo’tlieki-p. How we perpetuate our consciousness
is described as tlilnuo’lti’k. How we maintain our language is tlinuita’sim. Each of these terms con-
notes a process rather than a thing. On the problem of translating Mi’kmaq ideas into European lan-
guages, see JY. Henderson, “Governing the Implicate Order Self-Government and the Linguistic
Development of Aboriginal Communities” in Proceedings of the Conference of the Canadian Centre
for Linguistic Rights (Ottawa: University of Ottawa, 1995) 285.

“‘ See R.E Berkhofer, Jr., The White Man’s Indian: Images of the American Indian from Columbus
to the Present (New York: Knopf, 1978) at 49-69; R.L. Barsh, “Are Anthropologists Hazardous to
Indians’ Health?” (1987) 15:4 J. Ethnic Studies; E. Gellner, “The Politics of Anthropology” (1988)
23:3 Government & Opposition 290.

32 [1984] 2 S.C.R. 335, [1985] 1 C.N.L.R. 120 [hereinafter Guerin cited to S.C.R.].




D. Was “Centrality” a Stillbirth?
These philosophical problems have already produced confusion and back-tracking

in the Supreme Court’s efforts to apply Van der Peet to other facts.

R. v. N.TC. Smokehouse Ltd.3 and R. v. Gladstone,” announced the same day as
Van der Peet, involved more overtly profit-oriented fisheries, also in British Columbia.
In Smokehouse, Sheshaht and Opetchesaht fishers had sold some 119,000 pounds of
salmon to a commercial processor. In Gladstone, two Heiltsuk fishers tried to sell
4,200 pounds of herring spawn on kelp to a Vancouver-area retailer. A majority of the
Supreme Court (per Lamer C.J.) agreed with the findings at trial in Smokehouse that
barter or exchanges of salmon between the Sheshaht and their neighbours prior to 1846
were at best “occasional”, and that the role of salmon in the region’s renowned potlatch
feasts was merely “incidental”.”

In Gladstone, however, a majority of the Supreme Court (per Lamer C.J.) con-
cluded that barter and trade of fish was a “central and defining feature” of Heiltsuk
culture, and that it existed on a large scale comparable to modem-day commercial ex-
ploitation. What is most disturbing about this is the fact that the Sheshaht and Heiltsuk
were neighbours, traditionally living and fishing on the Queen Charlotte Strait within
roughly 250 kilometres of one another, and were members of the same traditional
trading network. ‘ To put this inconsistency into a more familiar context, it is as if the
Justices had declared that baseball was a central element of American culture, but not
Canadian culture, when both countries participate in the same leagues and World Se-
ries. It should be noted that the testimony at both trials was given by academic experts,
rather than by Aboriginal people, and it appeared that European observers recorded
more about Heiltsuk trade than Sheshaht trade during the critical period of the early
nineteenth century.

If the Heiltsuk were indeed a mercantile people who lived by trading fish, should it
not follow that they retain an Aboriginal right to harvest fish commercially without
external interference? According to Gladstone, the Heiltsuks’ right to fish commer-
cially merely entitles them to a “priority” in year-to-year allocations of fish stocks; the
government of the day may continue to manage and divide the resource as long as it is
properly “respectful” of the Heiltsuks’ Aboriginal right.” Hence the discretion of the

“Supra note 3.
Supra note 3.

“Smokehouse, supra note 3 at 689-90. This conclusion was disputed by L’Heureux-Dube J., who
argued in dissent that the trial judge had laboured under a misconception of the applicable standards
of law, and thereby disregarded substantial expert testimony as to the extent and economic impor-
tance of trade in salmon among the Sheshaht and their neighbours (ibid. at 705-11). The classic study
of Coast Salish subsistence and trade (not cited by the majority or dissenters) is “Coping with Abun-
dance: Subsistence on the Northwest Coast’, chapter 4 in W. Suttles, Coast Salish Essays (Vancouver:.
Talonbooks, 1987) 45.

‘6 See the endpaper maps in Suttles, ibid Part of the problem was the majority’s reluctance to re-

consider findings of fact made by the trial courts in these cases.

“7 Gladstone, supra note 3 at 766-67. The Chief Justice acknowledged that this standard was inher-

ently “vague”.



[Vol. 42

“fiduciary” remains paramount over the self-defined interests and needs of the benefi-
ciaries’ The fiduciary’s freedom to share Aboriginal nations’ traditional resources with
immigrants flows logically from the principle in Van der Peet that all Aboriginal rights
must be “reconciled” with the imported legal system, and thereby with the self-interest
of non-Aboriginal people.

It should be recognized that this is yet another new hurdle that Aboriginal peoples
must overcome before they can invoke the protection of section 35(1). If all the hurdles
announced by Sparrow, Van der Peet and Gladstone are assembled, they form a formi-
dable and intimidating barrier: the Aboriginal practice at issue must be shown to be
preexisting and central; it must be shown never to have been extinguished by the
Crown prior to 1982; it must have been infringed by government action after 1982; the
government action must be shown to have lacked adequate justification; and it must be
shown to go beyond the reasonable discretion enjoyed by the Crown as a “fiduciary” to
determine whether the Aboriginal cormnunity concerned has been given an adequate
“priority” in the enjoyment of the resources it has traditionally utilized. All of this
translates into a heavier evidentiary burden at trial, more expense, and greater risk of an
adverse ruling, amounting to a present-day extinguishment of the rights asserted.

The next two fishing-rights cases heard by the Supreme Court were nonetheless
decided in the Aboriginal parties’ favour. R. v. Adams involved a Mohawk food fishery
in Quebec. The Court unanimously concluded that fishing had once been an
“important and significant source of subsistence” for the Mohawks, and the Province
was therefore barred from insisting that Mohawks obtain licenses.” R. v. Cbt involved
an Algonquin food fishery, also in Quebec. The Court unanimously agreed that fresh-
water fishing had been “an important source of sustenance” for the Algonquins, once
again obviating the need to acquire provincial licenses.’ Significantly, the defendant in
Ctd had not been fishing for his own subsistence, but to show young Algonquins how
to fish. Chief Justice Lamer, writing for the unanimous Court, explained that “a sub-
stantive Aboriginal right will normally include the incidental right to teach such a
practice, custom and tradition to a younger generation.””

What is curious about these two cases is that the Court made no finding of
“centrality”, deriving the Aboriginal right to fish from evidence that the practice of
fishing preexisted and was, at least in the past, “important”. The Court retreated from

” The reader should bear in mind that, under the original Sparrow test, reaffirmed by the majority in
Van der Peet, supra note 2 at 526, the Crown is still permitted to encroach upon the exercise of an
“existing aboriginal right” if it can show an acceptable “justification” for so doing. Thus Gladstone
affords the Crown two bites at the apple: even if the Crown cannot come up with a sufficient
“justification” for restricting the right, it is largely free to allocate the resource concerned between the
Aboriginal right-holders and other Canadians.

‘9 [1996] 3 S.C.R. 101 at 128,4 C.N.L.R. I [hereinafterAdams cited to S.C.R.].
40 [1996] 3 S.C.R. 139 at 180-81,4 C.N.L.R. 26 [hereinafter CWtd cited to S.C.R.].
4 IbidL at 176. A collateral issue in the case was whether Quebec could impose its access fees on
motor vehicles driven onto public lands by Algonquin fishers. The Chief Justice reasoned that such
fees did not constitute an infringement of the Algonquin aboriginal right to fish, because the proceeds
had been used to improve road access to fishing areas (ibid. at 187-88).




its blanket rejection of “incidental” practices in Van der Peet, signalling a willingness
to consider arguments that challenged activities are important means of supporting the
continued exercise of “existing aboriginal rights”, and therefore also merit constitu-
tional protection.

The chronology of these decisions suggests a “legal realist” interpretation. The Van
der Peet trilogy divided the Court, with two Justices arguing that the majority was be-
ing too restrictive, both in its preoccupation with “centrality” as a criterion and in its
analysis of the evidence for the aboriginality of challenged practices.’ 2 Two months-
later, the Court was unanimous in Adams and CtJ.”‘ The Chief Justice appears to have
achieved unity in the latter two cases by backpeddling on “centrality”.

It is tempting to take comfort in Adams and CM, and regard them as indicative of
a tendency for the Supreme Court to be more generous and flexible in the future. More
may be involved in the Court’s new unity, however, than the abandonment of
“centrality”. The Court applied a lower threshold for subsistence, as opposed to com-
mercial fishing, suggesting a presumption that “aboriginality” is ordinarily incompati-
ble with profit.” This inference gains support from the cavalier manner in which the
Court unanimously rejected the defendants’ efforts in R. v. Pamewejon” to derive a
contemporary right to control on-reserve gambling houses from the precolonial preva-
lence of games of chance at social events. As in Smokehouse and Gladstone, the Jus-
tices resisted the notion that a traditional practice could be a source of contemporary
wealth. First Nations apparently can eat a tradition, but they cannot market it.

E. Is the Van der Peet Trilogy “Law”?
In Van der Peet, the Chief Justice concluded that the particularity of Aboriginal
practices dictates a case-by-case approach to determining the contents of the constitu-
tional box of existing aboriginal rights.” The Heiltsuk box will contain a different mix
of traditions and practices from the Sheshaht box, and the courts will eventually have
to determine the contents of more than 600 individual First Nation boxes, based on
evidence specific to each group. Historians, anthropologists and lawyers should rejoice
well into the next millennium.

41 Van der Peet, supra note 2 at 592-93 (UHeureux-Dube J.) and 640-41 (McLachlin J.); Smoke-
house, supra note 3 at 710-11 (L’Heureux-Dube J.) and 717 (McLachlin J.); Gladstone, supra note 3
at 803-805 (L’Heureux-Dube J.). In Gladstone, moreover, La Forest J. complained that the Chief Jus-
tice was misapplying his own “centrality” test (ibid. at 783-90).

43 Although L’Heureux-Dube J. concurred in a separate opinion in Adams, supra note 39 at 135. See
also R. v. Pamajewon, [1996] 2 S.C.R. 821, 4 C.N.L.R. 164, discussed below, decided by a unani-
mous Court one day after the Van der Peet trilogy.

“Or, that Aboriginal peoples must remain poor to remain genuine – an especially pernicious way
of being stuck in the past. We find it intriguing, furthermore, that the Justices applied a lower thresh-
old to disputes that arose in Quebec, as opposed to British Columbia or Ontario.

“‘ Supra note 43.
46 Van der Peet, supra note 2 at 559.



[Vol. 42

Does this case-by-case approach to decision-making qualify as “law”? We first
asked ourselves this question shortly after the United States Supreme Court adopted a
similar method for its review of American Indian appeals fifteen years ago.” Sadly, the
Supreme Court of Canada appears once again to have decided to copycat without
admitting the source of its inspiration, thereby distracting Canadians’ attention from the
fact that the American prototypes have already failed utterly.’

In his classic essay, “The Model of Rules”, Professor R. M. Dworkin argued that
Western legal systems are characterized by a combination of rules (black-letter law)
and principles (custom or convention). 9 Principles provide a necessary logical frame-
work for interpolation within the spaces between rules, for resolving conflicts and in-
consistencies among rules, and for clarifying the meaning of ambiguous rules. Princi-
ples may be more flexible than rules, Professor Dworkin explained, but they lend a
consistency and predictability to adjudication that otherwise would not exist.

Van der Peet jettisons principles in favour of an evidence-driven approach to re-
solving Crown-Aboriginal disputes. We think that this abandonment of principles, to-
gether with the complexity and incomprehensibility of the criteria for aboriginality in
Van der Peet, guarantee the proliferation of disputes. As a result, First Nations will bear
even greater uncertainty as to the extent of their resources, and the scope of their politi-
cal authority. More community resources will be devoted to defensive litigation, and
the volatility and unpredictability of First Nations’ rights and jurisdiction will deter in-
vestment on reserves.” Reserves may turn to higher-risk investments, including those
on the edge of legality such as casino gambling, simply because they generate suffi-
ciently large profits to pay the costs of defending the right to pursue them.’ We submit
that this scenario is not what the drafters of section 35(1) contemplated.

Indeed, section 35(1) is not just any law. It forms part of the constitution and, like
the Charter of Rights and Freedoms,2 aims at providing greater security for vulnerable
groups in Canadian society. Rules designed to operate as barricades against oppression

“‘See R.L. Barsh, “Is There any Indian ‘Law’ Left? A Review of the Supreme Court’s 1982 Term”
(1984) 59 Washington L. Rev. 863.
4″ Compare Canada’s current policy of “Indian self-government”, derived from an American prece-
dent which has been criticized for perpetuating dependency. For a review, see R.L. Barsh, “The
Challenge of Indigenous Self-Determination” (1993) 26 U. Mich. J. L. Ref. 277 at 293-307.
41 R.M. Dworkin, “The Model of Rules” (1967) 35 U. Chicago L. Rev. 14. See also his “Social
Rules and Legal Theory” (1972) 81 Yale LJ. 855. (We apologize to students of international law
who, like ourselves, were taught to equate “convention” with what is written, while British practice
equates convention with unwritten customary practices.)

For conceptual models of the relationship between legal complexity, legal certainty and reserve
development, see R.L. Barsh, “Indian Resources and the National Economy: Business Cycles and
Policy Cycles” (1988) 16:4 Policy Studies J. 799, and R.L. Trosper, “American Indian Relative
Ranching Efficiency” (1978) 68:4 Am. Economic Rev. 503.

-‘ See D.A. Cozzetto, “The Economic and Social Implications of Indian Gaming: The Case of Min-
2Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, supra note 5.

nesota” (1995) 19:1 Am. Indian Culture & Research J. 119.




should presumably be applied less flexibly and more consistently than other branches
of our legal system, lest they fail in their purpose.

Ill. What Is the Alternative?

An alternative basis upon which Van der Peet could have been decided, as sug-
gested by both dissenting Justices,” is the “doctrine of continuity”. This doctrine stands
for the proposition that the common law absorbs (or “receives”) the lex loci of a terri-
tory at the moment of its conquest or annexation to the Crown.’ Local law remains in-
tact unless and until it is clearly altered by the Crown in the exercise of its prerogative
jurisdiction or, today, by Parliament. The doctrine of continuity was first expressed by
Lord Coke in a case involving the fate of land rights in Scotland following its annexa-
tion to England, and was subsequently applied generally to overseas territories ac-
quired by the Empire.’ The Chief Justice’s failure to adopt this approach in Van der
Peet is particularly troubling in light of the fact that the Dickson Court relied upon it as
grounds for concluding that the Royal Proclamation of 1763′ had merely confirmed
Native title, rather than creating or conferring Aboriginal rights to unsurrendered

This was precisely the paradigm adopted by the High Court of Australia in Mabo
v. Queensland [No. 2], in which Brennan J. observed that “[n]ative title has its origin in
and is given its content by the traditional laws acknowledged by and the traditional
customs observed by the indigenous inhabitants of a territory.” We do not perceive
any basis for distinguishing in this respect between Aboriginal rights associated with
land and other kinds of claims to Aboriginal rights.

In Van der Peet, Chief Justice Lamer quoted the foregoing passage from Mabo
with approval but completely misconstrued its significance.’ He advanced it as support

‘4Van der Peet, supra note 2 at 599-600 (L’Heureux-Dub6 J.), 642-44 (McLachlin J.).
‘4See Re Southern Rhodesia, [1919] A.C. 211 at 233, affirmed and interpreted in Amodu 7jani v.
Secretary, Southern Nigeria, [1921] 2 A.C. 399 at 407, 90 L.J.P.C. 236, and Oyekan v. Adele, [1957]
2 All E.R. 785 at 788. A similar principle is found in articles 4, 5 and 8 of the Convention on Indige-
nous and Tribal Peoples, 27 June 1989, 28 1.L.M. 1382, and ratified thus far by seven states. Canada
is not among them.

” Calvin’s Case (1608), 7 Co. Rep. la at 17b, 77 E.R. 377 at 398 (K.B.).
14 Campbell v. Hall (1774), 1 Cowp. 204 at 209-10,98 E.R. 1045 at 1047-48 (KB.).
“4 Royal Proclamation, 1763 (U.K.), 3 Geo. 3, reprinted in R.S.C. 1985, App. 11 (Constitutional

Acts and Documents).

” Guerin, supra note 32 at 378. Also, as noted below, the Chief Justice referred with approval to

Mabo v. Queensland [No. 2], infra note 59, which in turn relied on the continuity doctrine.

‘9 Mabo v. Queensland [No. 21 (1992), 175 C.L.R. I at 58, [1992] 5 C.N.L.R. I at 49 [hereinafter
Mabo]. We take it that Brennan J. referred to indigenous law as a “question of fact’ in the same sense
that any issue of the content of foreign law is ordinarily regarded as a question of fact to be adduced
through the testimony of legal scholars who qualify as experts within those legal systems.

‘ Supra note 2 at 545-46. To its credit, the British Columbia Supreme Court concluded that
“aboriginal rights” must be determined in accordance with First Nations’ own legal systems, hence



[V/ol. 42

for the proposition that rights should be regarded as “aboriginal” only if they are rooted
in antiquity, emphasizing the use of the adjective “traditional” by the High Court while
disregarding entirely the noun (“laws”) to which that adjective was attached.

According to the alternative model, however, what section 35(1) entrenched was
the lex loci of Aboriginal nations, to the extent that their own laws had not clearly been
extinguished prior to 1982. To state the proposition somewhat differently, section 35(1)
is a choice-of-law rule. Moreover, under section 52 of the Constitution Act, 1982, this
choice-of-law rule has become part of “the supreme law of Canada” and overrides any
ordinary legislation inconsistent with it.”

We believe that the Dickson Court was groping, tentatively, in this direction, as
were many legal commentators. In Guerin, Chief Justice Dickson observed that past
efforts to characterize “Indian title” had been confounded by a failure to appreciate its
“unique” or sui generis nature, which is to say that its source rests outside general
British or Canadian law.’2 In Sparrow, the Dickson Court extended this analysis to
“aboriginal rights” as a whole.”2 If the source of First Nation rights is not to be found in
the legal system imported from the British Isles, what source could they have other
than the legal systems that are indigenous to North America.V The logical conclusion
of this line of reasoning would be the adoption of a principle of deference to the lex
loci, absent unambiguous evidence of a surrender of the right by treaty, or a legitimate
extinguishment by the Crown.

Rather than deferring to First Nations’ laws, however, the Supreme Court in Van
der Peet has assumed authority to determine from extrinsic evidence –
and centuries
after the fact – what made each Aboriginal society what it was.’ By this means, the
Court has discarded the traditional British Commonwealth framework, whereby Abo-
riginal peoples retained the rights defined by their own laws (unless subsequently ex-

Dorothy Van der Peet was entitled to do whatever lay within her rights in Sto:lo law (R. v. Van der
Peet (1991), 58 B.C.L.R. (2d) 392, [1991] 3 C.N.L.R. 161 (Selbie J.)).
6′ Indeed, sections 35(1) through 52 override any inconsistent provisions of the Charter itself, in ac-
cordance with s. 25 of the Constitution Act, 1982, supra note 5. It escapes us how the Chief Justice
came to the conclusion that the strongest provision in the Constitution Act, 1982 (strong enough to
override the Charter) is to be given the weakest and least consistent application.
‘2 Supra note 32 at 382. See also Canadian Pacific Ltd v. Paul, [1988] 2 S.C.R. 654 at 678, [1989]
1 C.N.L.R. 47; B. Slattery, “The Legal Basis of Aboriginal Title” in F. Cassidy, ed., Aboriginal Ttie in
British Columbia: Delgamuukw v. The Queen (Lantzville, B.C.: Oolichan Books, 1992) 117.

‘3 Supra note 16 at 1111-12.
” See J. Borrows, “Constitutional Law from a First Nation Perspective: Self-Government and the
Royal Proclamation” (1994) 28 U.B.C. L. Rev. 1; J.Y Henderson, “Empowering Treaty Federalism”
(1994) 58:2 Sask. L. Rev. 241. A careful distinction must be made between the scope of “aboriginal
rights” as defined by the Supreme Court and what we refer to here as “First Nation rights”, meaning
what is defined and preserved as part of First Nations’ own legal systems. Compare P Monture-
Angus, Thunder in my Soul: A Mohawk Woman Speaks (Halifax: Femwood, 1995) at 131-168, on the
inadequacy of the term “aboriginal rights” from an Ahoriginal perspective.

” Supra note 2 at 561.




tinguished by Parliament), replacing it with a doctrine of ex post facto judicial extin-

Is this all so much judicial flatulence,” or a dangerous change of direction for Ca-
nadian constitutional law? We fear the latter. A constitution worthy of the name must
entrench the most sacred principles upon which a country is founded, and upon which
its elected representatives dare not trespass. In 1982, Canadian leaders negotiated a
Charter of Rights and Freedoms for the express purpose of clarifying what it means to
be Canadian. A core of shared rights and values was supposed to bind Canadians to-
gether and inoculate them against the centrifugal forces of language and, secondarily,
the bitter legacy of colonialism. In Van der Peet, however, the Supreme Court has
shown First Nations that section 35(1) is not an iron shield but a rope of sand. Can a
constitution made of sand unite a country?

” With apologies to Professor Glanville Williams (“Language and the Law – Ir’ (1945) 61 L.Q.
Rev. 179 at 179: “Philosophy stands out as the striking example of the flatulencies that may gather
round the unacknowledged puns of language”).