Legal Pluralism: Reflections On The Role Of Law In Providing Justice For Indigenous Peoples – A Canadian Context

 Professor Paul L.A.H. Chartrand, Former Commissioner, Royal Commission on Aboriginal Peoples, Canada

 The title of this conference is ‘Indigenous Peoples and Justice’, and the aim of The F.I.R.S.T. Foundation which sponsors it, is to promote research and informed discussion on the issues facing indigenous communities both nationally and internationally.  I hope to be able to contribute in a small way to this goal in respect to indigenous peoples and justice.

 In 1996 the Royal Commission on Aboriginal Peoples released a special report on criminal justice which contained this statement; 

‘The Canadian criminal justice system has failed the Aboriginal peoples of Canada - First Nations, Inuit and Metis people, on-reserve and off reserve, urban and rural - in all territorial and governmental jurisdictions.  The principal reason for this crushing failure is the fundamentally different world views of Aboriginal and non-Aboriginal people with respect to such elemental issues as the substantive content of Justice and the process of achieving Justice.” 1 

On April 23, 1999, in a sentencing decision of the Supreme Court of Canada quoted this statement when deciding on the interpretation of the Criminal Code of Canada which pertains to Aboriginal people and incarceration, and added that... 

‘[n]ot surprisingly, the excessive imprisonment of Aboriginal people is only the tip of the iceberg insofar as the estrangement of the Aboriginal peoples from the Canadian criminal justice system is concerned. 2

It will be agreed that the substantive criminal law, by proscribing particular behaviour, reflects a society’s broad consensus on basic social values.  Not only did the substantive criminal law of Canada fail to accommodate the distinct cultural values of indigenous peoples, it also served a process of social engineering to change those values, and also advanced Canadian political objectives in asserting political control over indigenous communities.

In this address I shall first briefly illustrate how the law helped to destroy, fragment and dispossess the Aboriginal peoples of Canada. They have been left today marginalized and disillusioned as individuals in cities or little communities, plagued by the social, economic, and political effects of the taking of their homelands by newcomers. These new-comers did not respect their ways of life, their community structures, or their inherent dignity as human beings.

 I hope to contribute to the discussion of the actual and potential role of the law in offering substantive remedial solutions to the injustices the law was used to create. My comments will draw upon developments in the judicial Doctrine of Aboriginal Rights in Canadian Courts, and upon the developments in international law, which relate to the obligations of ‘nation states’ to respect the presence of indigenous peoples.

 The historical failure of the substantive criminal law to deal with conflicting worldviews and cultures may be dramatically illustrated by the Wehtigo murder cases.3   The Wehtigo was one of the non-human beings in the world of several Woodland indigenous peoples in Canada.  An evil spirit who took possession of people who would then kill and devour their families and companions, the Wehtigo was much feared, especially during periods of isolation and hunger in the winter time, and had to be ritually slain for the protection of the community.  A person under the influence of the Wehtigo possessed remarkable physical strength and powers of resurrection.  In the case of Moostoos, a Wehtigo killed in 1899 near Lesser Slave Lake, the evidence at the trial showed that Moostoos was aware of his impending Wehtigo possession and declared his preference to be killed rather than hurt his own children.  He was killed with axe blows, his heart pierced with a wooden stake and hot tea was poured into it since the heart of a Wehtigo turns to ice.  As in all other Wehtigo cases, the belief that the victim was a Wehtigo and there was no intention to kill a human being was not accepted.  Wehtigo killers were convicted of murder or manslaughter.  The manifest injustice of forcing foreign values into indigenous communities was dealt with only after conviction, by executive clemency or through the sentencing process.

 Other examples may illustrate the intolerance of conflicting cultural values.  These include the application of the Criminal Code prohibition against bigamy to polygamous Plains cultures, and the prohibitions of the Indian Act against social institutions such as the Potlatch and against religious practices including various dances, some of which are now enjoying a resurgence in contemporary Canada.

 The law’s support for Canadian political objectives may be illustrated by the 1884 Indian Act amendments which prohibited meetings of three or more Metis or Indian persons, at a time when armed insurrection was apprehended.  A companion amendment prohibited the sale of ball ammunition to Aboriginal people.  At the fall of Batoche in May 1885, in what has been called the Riel Rebellion, old Metis men were found in rifle pits, using nails as ammunition against Canadian troops.

 The unconscionable taking of the lands of the indigenous peoples, and the law’s justification by means of written treaty provisions and a theory of aboriginal title, would require comprehensive treatment in a separate address.

 Both the educative and political functions of the law were identified clearly by Crown counsel in one of the Inuit show trials held in the Canadian far North at the beginning of the 20^th century; 

 ‘... these remote savages, really cannibals ... have got to be taught to recognize the authority of the British Crown, and that the authority of the Crown and of the Dominion of Canada, of which these countries are a part, extends to the furthermost limits of the frozen North ... for the first time in history, these people ... will be brought in contact with and will be taught what is the white man’s justice... 4 

The current Canadian Criminal Code Sentencing Provision in the Gladue case typifies the way in which the law dealt with indigenous accused, making no concessions in the substantive law, but some accommodation, (as required in the interests of the State), after conviction.  More recently, initiatives have begun to focus on interventions, at what may be called the front end of the system, i.e. prior to the actual trial.  It is on these accommodations, I perceive, that much of the discussion at this conference will focus. 

The Law’s Accommodation of Indigenous Peoples

 I have tried to illustrate that Canada and its predecessor imperial colonies in asserting their political power over the Aboriginal peoples in Canada, have done significant damage to the values and cultural practices of them.  They have (all but) destroyed the social viability of the political and social relations that once defined and governed distinct Aboriginal societies.  The law and legal system, unfortunately, have helped in these injustices.  Today, as the world community develops standards of human rights for individuals and communities, the legitimacy of States is measured increasingly by their adherence to these standards and their protection of fundamental human rights.  In Canada, there are weak and begrudging policy shifts towards recognition of the proprietary rights of the Aboriginal owners of Canadian territory, mostly by means of modern treaty making and devolution of administrative authority to small groups of Aboriginal people.  The courts are playing a role in moving this policy shift by the development of a judicial Doctrine of Aboriginal Rights.

 The development of the Doctrine of Aboriginal Rights proceeds in an ad hoc fashion, as is the way of the common law.  The early cases which began the process did not even include arguments from the Aboriginal people whose fundamental interests were at stake.  This exclusion, which could not be contemplated today, reflected the then approach to the political process which constituted Canada, which failed to include Aboriginal people simply because Aboriginal people did not matter.  They matter neither in a political nor in a legal sense. 

 This proposition is best illustrated by the doctrine of terra nullius which attempted to justify the taking of Aboriginal lands by declaring them to be empty of people, that is, empty of people who mattered.  Other public and social institutions took the same approach.  So the history books in the schools taught a history of a country in which the story of the indigenous peoples was worthy of mention only in light of its relevance to the newcomers.  Peoples who do not matter do not have a history that matters.  This of course, reinforced the political aims of subjugating the identity of Aboriginal individuals by submerging their group identity and ‘justifying’ public policies that ‘treat everyone the same...’. The differences of history, of kinship and territorial occupation, of physical and moral presence, were all sacrificed to the aim of building Canada as a pale imitation of Europe.  The preferred social and political relations of the newcomers became firmly institutionalized in the politics and the law of Canada.

Judicial Developments of Aboriginal Rights Doctrine

 The resurgence in judicial activity, beginning in the early 1970s, resulted from challenges to the expansion of Canadian exploitation of lands where the question of Aboriginal title had not been settled.  The principles developed by the court reflected the nature of the conflict of interests over land, and the court moved very cautiously.

 Understanding the basic concept of aboriginal rights requires the recognition of distinct aboriginal societies.  In these societies, there are preferred ways of organizing society around shared values, moral, social and political.  The function of law in such an Aboriginal society would be to formalize these relations with the sanctions of the law through a legal process.  The function is the same within the newcomer society.  The conceptual basis upon which the courts of the newcomers select certain social and political relations within the indigenous society and transform them into legal relations enforceable within Canadian law and society formulates the doctrine of aboriginal rights.  On this view, the courts do not accord an independent validity to indigenous social and political relations, but only as interpreted within the Canadian legal system.  The ‘source’ of the law is said to be within the indigenous social system, but the legal character of the actions that receive the law’s protection are derived from judicial approbation.  This is not legal pluralism.  There is still only one system of law, the newcomer’s system, and the contemporary legal validity of indigenous social and political relations depends upon the substantive content of the Doctrine of Aboriginal Rights.  That explains why recourse to Canadian courts is both a blessing and a curse from the perspective of indigenous peoples.

 Recent cases have expanded the doctrine of aboriginal rights beyond questions of land title.  Cultural and economic activities are now given the protection of the law if they are activities that substantially trace their origins to pre-contact times and have continued until today.  These activities must be judicially characterized as being integral to a distinct Aboriginal group’s identity, from evidence adduced by persons accepted as experts.  The cases to date have focused on economic activities such as fishing and using natural resources for cultural purposes.  Aboriginal title is only one element of aboriginal rights. It is not necessary to prove aboriginal title to succeed on a claim of aboriginal rights.

 When viewed in its proper historical context, this legal protection has serious limitations.  Many cultural practices were effectively discontinued and extinguished by early law and policy may no longer be claimed as aboriginal rights because they do not meet the test of continuity.  Many former economic resources have been destroyed.  A test that would protect buffalo hunting as the main economic activities that defined many indigenous Plains cultures is little comfort now that the buffalo are gone.  This doctrine of aboriginal rights cannot provide remedial justice by substituting access to a modem resource base for an indigenous people to raise its families and build its vision of a happy neighborhood.

 Another fundamental weakness is the decision of the judges themselves to undertake the task of interpreting the substantive content of social and political relations within indigenous societies. If these had been negotiated between political representatives of the indigenous peoples themselves and representatives of the Canadian system there would have been more legitimacy in agreements on the substantive content of aboriginal rights.  The judges of the common law courts are neither singularly nor severally qualified to interpret indigenous identity and social and political relations within the indigenous societies.  A process whereby indigenous spiritual and political leaders come to court to plead their rights before appointed judges can not hope to sustain a great degree of political legitimacy.  It would have been better, in principle, to develop the law of obligations which would have required representatives of the Crown to negotiate the substantive content of aboriginal rights, as determined by indigenous people themselves.  The role of the law in responding to the exercise of political power is exemplified by the recent Quebec Secession Reference in which the Supreme Court of Canada had no difficulty in introducing a theory of Governmental obligation to respond to separatist political initiatives from the Province of Quebec.

 The Court’s undertaking to define the content of aboriginal rights was also done at a cost to traditional legal processes.  Evidence on substantive social relations within indigenous societies is adduced from elders and others and is largely based on oral history and testimony.  Newly developed common law rules for receiving oral evidence have had negative reaction responses which extend beyond the legal profession, and have been used to further weakened public support for the judicial development of aboriginal rights.  The Courts have undertaken a task for which they are not well suited.  Nowhere will this become more evident than in the eventual and necessary judicial definition of the group identity of indigenous people, a topic which I will develop further below.  But first, it will be useful to turn to a brief consideration of the concern of international human rights law, with the rights of indigenous communities within some existing Nation-States.

International Standards for The Protection of Indigenous Identity and Rights

Two major United Nations human rights law instruments establish the right of self-determination in the following terms; 

“All peoples have the right of self-determination.  By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” 

Furthermore, member States of the United Nations are required to respect that right; 

“The States Parties ... shall promote the realization of the right of self determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.” 

The Draft Declaration on the Rights of Indigenous Peoples which is being considered by the UN Commission on Human Rights, includes the same text recognizing the right of self-determination. 

In recent developments, the Supreme Court of Canada has explicitly accepted that the right of self-determination of ‘peoples’ constitutes international law and not merely convention.  The Government of Canada formally accepted in 1996 that the right of self-determination applies to all peoples, including indigenous peoples who do not comprise the majority population within a Nation State.   

In April 1999, however, Canada was criticized by the Committee of the Commission on Human Rights for its failure to explain the elements that make up the concept of self-determination as applied to the Aboriginal peoples in Canada, and urged Canada to report adequately on implementation of the above-cited provision of the International Covenant on Civil and Political Rights.  In its report, the Committee noted Canada’s admission that the situation of the Aboriginal peoples “remains the most pressing human rights issue facing Canadians” and the committee expressed its concern that Canada has not yet implemented the recommendations of the Royal Commission on Aboriginal Peoples.  This is an historic expression by the international community of the view that the right of self-determination comprises substantive law which State Parties are bound to respect and apply within the domestic context.5 

It may be emphasized then, that self-determination is a substantive right vested in indigenous peoples.  The right of self-determination is contained within international human rights law and thus attracts the obligation of States to protect it and make it effective in a domestic context.  This approach is paralleled in the recent judicial development of positive obligations of both Government and Parliament in Canada to respect the law of the constitution by protecting rights and making them effective.  The English doctrine of parliamentary supremacy has given way, in Canada’s constitutional democracy, to a system where the law of the constitution not only limits the exercise of governmental power, but also attaches positive obligations which are judicially enforceable.  This position was elaborated in the Quebec Secession Reference decided in August 1998.

 The right of self-determination has often been resisted by State agents who have described it as an impossible goal, reflecting a preference for homogeneous, independent, often small ‘nation-states’ which would necessarily result in massive social and political disruption.  If self determination is viewed as an aspect of human rights with the objective of promoting preference for democratic and participatory political and economic systems in which the rights of individuals and the identity of minority communities are protected, however, it loses much of its threatening character. 6

 The right of self-determination also loses any threatening character it might have when viewed in the proper context of its exercise by indigenous peoples within modem nation states.  Rights are never absolute and their exercise must respect the equal rights of other groups.  Thus, the exercise of the right of self-determination must respect the same right of other ‘peoples’.  I suppose too, that those representatives of a people responsible for deciding on the substantive public decisions taken pursuant to the exercise of the right of self-determination are bound to make decisions that offer some reasonable prospect of success, such will be measured in terms of reaching the goals behind self-determination, which must include the continued preservation and nurturing of a distinct social and cultural society.  On this basis, the right is not a licence to commit collective cultural suicide by ignoring the presence of powerful neighbours.  Negotiations with the representatives of the representatives of the powerful nation states are warranted.

 The existence of indigenous peoples as enclaves within powerful nation states explains why we need the pressure of international law backed by the international community to oblige nation states to protect human rights and assure the implementation of a domestic application of the human right of self-determination.

 When viewed functionally as a form of dialogue that replaces the assertion of preferences by the exercise of power, rights are in constant evolution.  This is true not only for norms of international law but for the interpretation of constitutional and legal rights.

Policy, Legal and Constitutional Developments concerning Political Rights of Indigenous Peoples of Canada

In this section I will discuss arguments for the recognition of the rights of Aboriginal peoples as distinct societies or ‘nations’ in Canadian law and policy and offer some commentary on the ‘judicial definition of Aboriginal peoples’.

In 1982 the Constitution of Canada was amended to include recognition and affirmation of the existing aboriginal and treaty rights of its Aboriginal peoples.  The Aboriginal peoples include the Indian (First Nations), Inuit and Metis peoples, all historic peoples indigenous to what is now Canadian territory.  A specific provision required the Prime Minister to invite representatives of the Aboriginal peoples to a series of First Ministers’ Conferences (the Prime Minister and the Premier of each Province and the Leader of each Territory) to discuss the elaboration of aboriginal rights.  The need to put an obligation to hold meetings in the Constitution illustrates, the deep sense of mistrust in which these events took place.  Canada may be said to have constitutionalized mistrust between itself and the Aboriginal peoples.  Those meetings ended without any agreement among First Ministers to guarantee any substantive rights beyond the bare recognition provision already in the 1982 amendment.  A series of other events including the armed stand off at Oka in 1990, moved the federal government to establish a Royal Commission to advise it on a comprehensive set of Aboriginal policies.

The Final Report of the Royal Commission on Aboriginal Peoples urged Canada to adopt a twenty year policy strategy based on the formal recognition of Aboriginal ‘nations’, defined as domestic versions of ‘indigenous peoples’ at international law.  Among the ‘aboriginal rights’ protected by the 1982 amendment, the Royal Commission argued, is the domestic common law aboriginal right of ‘self-government’.  Further, it argues that the aboriginal right of self-government is vested in Aboriginal ‘nations’ and not in federally created ‘Indian bands’ or Metis or Inuit communities.  In particular, the report recognized the effect of colonial destruction of Aboriginal social and political community structures and proposed a process of building or ‘constituting’ nations.

The formal response of the Canadian Government, released on 7 January 1998, did not adopt these specific recommendations but offered marginal changes to its existing ‘self-government’ negotiations policies.  The centre piece of the policy response was the creation of a 350 million dollar healing fund to address the legacy of sexual and physical abuse in Indian residential schools.  In the result, the most significant movement towards formal recognition of the political rights of Aboriginal nations may be discerned in the terms of the treaty being formalized with the Nisga’a people in British Columbia.  This treaty is serving as a lightning rod for debates on the issues of Aboriginal group and political rights.  The Canadian Government does not want to shift rapidly on the formal recognition of indigenous peoples nor to develop a domestic application of the right of self-determination, Canada has already attracted criticism from the United Nations for its intransigence.

In this context, the courts will have a significant role in defining the group aboriginal rights which the constitution has put beyond the reach of legislative extinguishment.  The last great open questions in the development of this judicial doctrine are the actual definition of the ‘peoples’ in which the aboriginal rights are vested the right of ‘self-government’, within the category of political rights of communities.

A central reason that might be advanced for Canada’s reluctance to adopt the RCAP’s arguments for the recognition of Aboriginal ‘nations’ is wider public opinion about the underlying issues.  In the context of this brief presentation I will attempt to address two red herrings, thrown into the confused public debate on Aboriginal self-government.  The first one is captured in the false cry of ‘one law for all’.  The second is the idea that Aboriginal self-government is a species of ‘race-based’ legal differentiation that must not be tolerated in a democratic society.

The slogan of ‘one law for all’ neatly avoids the question how the ‘all’ happens to include Aboriginal peoples.  In other words, what is the argument to justify the political boundaries within which political power and legal authority is asserted over distinct peoples?    The exercise of power must always be justified, whether by the State over individual citizens or by a State over distinct ‘peoples’ having the right of self-determination.  Canada, and I suspect other Nation States, are challenged in finding an answer.  If we apply the argument of the Supreme Court of Canada about the legitimacy of the law of the constitution, we find it is based on the democratic principle of the expression of the consent of the governed.  What process then explains the consent of the distinct Aboriginal peoples in respect to Canadian power and authority over them?  Aboriginal peoples have their own arguments to explain the illegitimacy of Canadian rule over them, but it ought not to go unnoticed that Canada’s own standards of legitimacy do not allow the easy cry of ‘one law for all’ to pass scrutiny.

The other bogey man raised by opponents of Aboriginal self-government, for the sole purpose of knocking, it down, is the idea that Aboriginal self-government extends special legal treatment to a ‘racial’ minority . The RCAP Report took pains to explain that Aboriginal nations comprise freely associated social and political communities and not racial minorities.  Given the history and geographical and social circumstances of Aboriginal peoples, it is natural that most individuals within these nations will have a common genetic pool.  But the reason the group has a collective right is not to advance biological cultures but social and political cultures which assert a common social and political vision of a good society. 

The goal of the collective right of self-determination and of self-government is the promotion of distinct cultures or agendas for living.  Each distinct Aboriginal people, like all ‘peoples’, has a right to decide on the nature and scope of its ‘public interest’, based on its preferred social and political values upon which its society is organized and governed.

I will conclude this section by showing how the law of the constitution of Canada might be interpreted to accommodate both the existence of individuals of ‘Aboriginal ancestry’ on one hand, and distinct Aboriginal ‘nations’ with collective rights, on the other hand.

The 1982 Constitutional amendment contains a Charter of Rights and Freedoms which includes not only a guarantee of equal rights for all individuals but also permits affirmative action laws and programmes designed to ameliorate the circumstances of disadvantaged individuals and groups, including those disadvantaged by reason of  ‘race, ethnic or national origin....’.7 This is the proper constitutional locus for debating the merits of remedial justice in the form of affirmative action programmes for disadvantaged ‘racial minorities’, including individuals of biological ‘aboriginal ancestry.’ It is important, however, not to conflate the groups comprised of such individuals with the Aboriginal ‘peoples’ having aboriginal collective rights protected by the aboriginal rights provisions in another Part of the Constitution Act 1982.

The identification of Aboriginal peoples, groups having group rights, must be based upon generally acceptable fundamental principles designed to reach legitimate social and political objectives.  Some objectives of Aboriginal self-government have been introduced above.  The recent Quebec Secession Reference identifies a number of such ‘unwritten principles of the constitution’ of Canada that provide a rich source for informed debate and argument. 8

On the facts of the Reference, the Court considered the following four unwritten principles; federalism, democracy, constitutionalism and the rule law, and respect for minorities. Those are not the only such principles, however.  The Court has identified others in other cases and has explained that however.  The Court has identified the category of judicially found principles is not closed.  The ‘judicial discussion of the principles in the Reference, along with the Court’s introduction of a general theory of Government and Parliamentary obligation, suggests that in time it may prove to be the most significant ‘aboriginal rights’ case in the history of Canadian jurisprudence.  How may some of these principles apply to the definition of Aboriginal peoples and the process of constituting nations’ policy recommended by the Royal Commission on Aboriginal Peoples?

Tentatively, Aboriginal ‘nations’ must constitute themselves in a democratic process that respects the human rights of its members and establishes a process for the free expression of the collective will of the people, including on such issues as the form of self-government and the political representative functions.  Once a ‘people’ has so constituted itself. Canada has a positive obligation to negotiate self-government within Canada, just as Canada was required by the Reference, to respond positively to a desire to negotiate the terms of secession of the Province of Quebec upon the free expression of the collective will of the population of the province by a referendum.

Such a ‘nation’s Constitution’ would include the rules of membership whereby citizenship in an Aboriginal nation would be determined.  Thus it can be emphasized that the constitution of an Aboriginal nation with political rights of governance is based upon the free consent of individuals to associate themselves as members of the nation, on the one hand, and the acceptance by the nation of these members based upon group rules of membership.

Such an approach reflects the element of ‘self-definition’ as an aspect of self-government and ensures that membership in historic social and political communities is not merely a matter of ‘racial ancestry’ but a necessary element of the exercise of democratic rights.  If an ultimate objective of giving legal recognition to group political rights of Aboriginal self-government is the maintenance of distinct identities and cultures by aggregating communities of like-minded individuals, it makes no sense to foist unwilling individuals defined merely by biological ancestry upon the community. The rules of membership themselves would be based upon morally, socially and politically legitimate principles, and not upon accidents of birth.

Given the close ties between blood and belonging, this is not necessarily a recipe for instant social harmony; it is, though, an attempt to proceed with the practical institutionalization of Aboriginal self-government on a principled basis that should have the approbation of both the domestic and international communities.

Expressions like ‘one law for all’ and ‘no special rights for racial minorities’, or ‘special needs not special rights’ are political slogans and not substantive arguments.  When we scratch their surface we find they are empty and they remind us that words ought to convey ideas and not be used as substitutes for ideas.

Conclusion

Through its educative function, and by assisting the political goals of Canada, the law has been an important State instrument of social and political control over indigenous peoples.  The law has rationalized the exercise of power in the unconscionable dispossession of peoples and the subjugation of their collective and personal identity, political and social ideals and economic interests.

Today, as the international community and domestic courts continue to develop and protect the substantive rights of indigenous peoples, that same educative function may be used to resurrect Aboriginal identity and rights and defeat the empty political rhetoric that threatens and stands in the way of justice for indigenous people.

If I may conclude by returning to the ‘tip of the iceberg’ metaphor in the Gladue case, I look forward to the following papers and discussions which will reveal to me whether there is an iceberg in the New Zealand criminal justice system, and if so, how much is exposed to public and scholarly scrutiny.

The question of legal pluralism, whether reflected only in a separate criminal justice system or in a more comprehensive regime of Aboriginal self government, is a legitimate subject for moral, political and legal research and discussion, which are laudable objectives of The F.I.R.S.T. Foundation which has sponsored this Conference.