Aboriginal Rights and Canadian Sovereignty: An Essay on R. v. Sparrow

Abstract

The authors articulate the basic elements of two competing theories of aboriginal right. The first, a contingent rights approach, requires state action for the existence of aboriginal rights. This approach dominated early judicial pronouncements on the nature of aboriginal rights. The second, an inherent rights approach, views aboriginal rights as inherent in the nature of aboriginality. This approach came to be embraced by the judiciary in cases addressing the nature of aboriginal legal interests prior to the passage of the Constitution Act, 1982. The authors then assess the Supreme Court of Canada's decision in R. v. Sparrow in light of these two competing theories. In Sparrow, the Court addressed the meaning of s. 35(1) of the Constitution Act, 1982 and, despite other laudable aspects of the judgment, relied on a contingent theory of aboriginal right and an unquestioned acceptance of Canadian sovereignty. The authors offer two alternative approaches to s. 35(1) based on the overarching value of equality of peoples. As a result, the Court severely curtailed the possibility that s. 35(1) includes an aboriginal right to sovereignty and rendered fragile s. 35(1)'s embrace of a constitutional right to self-government.

A First Nations-led social innovation: a moose, a gold mining company, and a policy window

“…These lands may be provincial Crown or privately held lands. A number of key decisions of the Supreme Court of Canada, dealing with resource and land management over the past 20 years, have changed the relationship of indigenous peoples living in Canada with both governments and private resource developers (Asch and Macklem 1991, Lawrence and Macklem 2000, Isaac and Knox 2003. For example, in 2004, the Supreme Court clarified that the Crown is required to consult with indigenous peoples "when the Crown has knowledge, real or constructive, of the potential existence of the [indigenous peoples'] right or title and contemplates conduct that might adversely affect it" (Haida Nation v British Columbia 2004).…”

“…There is a broad spectrum of interpretation of the requirements for the Crown's duty to consult in Canada (Asch and Macklem 1991, Lawrence and Macklem 2000, Isaac and Knox 2003. Recognizing that high-level decisions and policy can impact operational-level activities, the Supreme Court clarified that meaningful consultation occurs at the strategic level (Haida Nation v British Columbia 2004).…”

LÉVI‐STRAUSS AND THE POLITICAL:THE ELEMENTARY STRUCTURES OF KINSHIPAND THE RESOLUTION OF RELATIONS BETWEEN INDIGENOUS PEOPLES AND SETTLER STATES

“…To arrive at this presumption, the Canadian state relies on the English legal doctrine of terra nullius , which is a doctrine intended to apply to the acquisition of sovereignty and jurisdiction by the British Crown where authorized colonists settle in previously unoccupied territory (Slattery 1987). The interesting matter, then, is that it is applied in Canada (Asch 1984; 1993; Asch & Macklem 1991; Macklem 2001; McNeil 2001; Russell 1993) as well as in Australia ( Mabo 1992; Patton 1999; 2001; Reynolds 1996), where it is obvious that the territories were occupied when European settlers first arrived.…”

Policy Paradigms and Policy Change

“…By the late 1980s and early 1990s, as Weaver has noted, the Aboriginal position was well-articulated and had received the support of prominent parliamentarians at the same time that court decisions clarifying the 1982 constitutional changes came down in favor of a broad interpretation of Aboriginal rights (Asch & Macklem, 1991;Sanders, 1990;Usher, 1991). However, due to recurrent constitutional setbacks, the new paradigm has not yet fully been institutionalized.…”