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Aboriginal Self-Determination in Canada : Protections Afforded by the Judiciary and Government

Published online by Cambridge University Press:  18 July 2014

Jennifer E. Dalton
Jennifer E. Dalton
Affiliation:
Osgoode Hall Law School, York University, 4700 Keele Street, Toronto, Ontario, Canada M3J 1P3, jenniferdalton@osgoode.yorku.ca
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Abstract

It is commonly thought that the watershed Supreme Court of Canada cases on Aboriginal rights represent a gradual trend wherein Aboriginal peoples have gained increasing protection under Canadian common law. However, this paper argues the contrary. Despite judicial decisions dealing with Aboriginal rights under section 35(1), the rights of Aboriginal peoples in Canada have not gained greater protection and they certainly have not expanded to encompass the right of self-determination. Instead, it is argued that judges have introduced and applied various legal tests which have ultimately resulted in further impediments to the expansion of broad Aboriginal rights under section 35(1). It is interesting to discover that the level of political and governmental recognition of Aboriginal peoples and their rights, including the right of self-determination, has been greater than at the Supreme Court of Canada. This is despite the destructive treatment of Aboriginal peoples by the Canadian state. On the whole, the Government of Canada has been willing to recognise the inherent right of self-determination as applied to Aboriginal peoples. This is due to the changing legal status of who constitutes “peoples” under international law and the role of the Canadian government as a signatory to various relevant international covenants and declarations, alongside more recent government policy statements and developments in comprehensive land claims and self-government negotiations. Ultimately, it is argued that the Canadian government has tended toward higher levels of support for more extensive rights for Aboriginal peoples than has the judiciary, and most notably, the Supreme Court of Canada.

Résumé

On présume en général que les arrêts décisifs de la Cour suprême canadienne représentent une tendance vers une protection croissante des droits des Autochtones en droit canadien. Cet article prend la position inverse. En dépit des décisions judiciaires concernant des droits autochtones sous 35(1), les droits des peuples autochtones du Canada ne sont pas mieux protégés. Les juges ont plutôt développé différents tests juridiques qui ont freiné l'élargissement de droits autochtones. On découvre ainsi que la reconnaissance politique et gouvernementale des peuples autochtones et de leurs droits, incluant le droit à l'autodétermination, fut plus grande que celle par la Cour suprême du Canada, et ceci malgré le traitement destructeur des peuples autochtones par l'État canadien. Le gouvernement du Canada a été prêt à reconnaître leur droit inhérent à l'autodétermination. Ceci est dû au statut légal modifié de qui constitue un «peuple» en droit international et au rôle du gouvernement canadien en tant que signataire de plusieurs conventions et déclarations internationales, tout autant qu'à des déclarations politiques plus récentes et des développements dans les négociations territoriales et d'autonomie plus globales.

Type
Research Article
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 21 , Issue 1: Exceptions, Excuses, Norm(e)s , April 2006 , pp. 11 - 37
Copyright
Copyright © Canadian Law and Society Association 2006

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References

1 Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11Google Scholar.

2 See Berger, Thomas, Fragile Freedoms: Human Rights and Dissent in Canada (Toronto: Irwin Publishing Inc., 1982) at 250Google Scholar, cited in Walkem, Ardith, “Constructing the Constitutional Box: The Supreme Court's Section 35(1) Reasoning” in Walkem, Ardith & Bruce, Halie, eds., Box of Treasures or Empty Box?: Twenty Years of Section 35 (Penticton, British Columbia: Theytus Books Ltd., 2003) 195 at 196–197 [Walkem]Google Scholar; and to a lesser extent, Mark Stevenson, “Section 35 and Métis Aboriginal Rights: Promises Must be Kept” in Walkem & Bruce, ibid. 62 at 63.

3 For example, see Walkem, ibid.; Mildred C. Poplar, “We Were Fighting for Nationhood Not Section 35” in Walkem & Bruce, supra note 2, 23 at 26; Louise Mandell, “Offerings to an Emerging Future” in Walkem & Bruce, ibid., 158 at 168-170.

4 R. v. Sparrow, [1990] 1 S.C.R. 1075 [Sparrow].

5 R. v. Pamajewon, [1996] 2 S.C.R. 821 [Pamajewon].

6 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 [Delgamuukw].

7 Campbell v. British Columbia (Attorney General), [2000] 4 C.N.L.R. 1 (B.C.S.C.) [Campbell].

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11 For further discussion of the relationship between self-determination and self-government, see Turpel, supra note 8 at 593, 595; Canada, Report of the Royal Commission on Aboriginal Peoples: Restructuring the Relationship, vol. 2 (Ottawa: Supply and Services Canada, 1996) at 41–81Google Scholar [RCAP].

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15 Anaya, supra note 9 at 79.

16 ibid. at 78.

17 ibid. at 78-79.

18 R.S.C. 1970, c. F-14. At this point, the Court only had to deal with the issue of federal legislation. In Badger and Côté the Court held that provincial laws were also subject to the Sparrow test. See R. v. Badger, [1996] 1 S.C.R. 771; R. v. Côté, [1996] 3 S.C.R. 139.

19 Sparrow, supra note 4 at 1075, 1083.

20 ibid. at 1076.

21 ibid. at 1102.

22 R. v. Sparrow (1986), 36 D.L.R. (4th) 246 at para. 74.

23 Sparrow, supra note 4 at 1103. The Court stated that “there was from the outset never any doubt that sovereignty and legislative power (…)vested in the Crown” (ibid.).

24 Kent McNeil, “Judicial Approaches to Self-Government since Calder: Searching for Doctrinal Coherence” at 7 [forthcoming] [McNeil, “Judicial Approaches”].

25 ibid.

26 Sparrow, supra note 4 at 1113.

27 ibid. at 1113-1114.

28 ibid. This is in direct contradiction to the ruling of the Court of Appeal, which stated “that regulations could be valid if reasonably justified as ‘necessary for the proper management and conservation of the resource or in the public interest’” (ibid.).

29 ibid. This “special trust relationship” is also known as the fiduciary duty of the Crown towards Aboriginal peoples. For further discussion see infra note 115. While not setting out an exhaustive list of considerations, the Court stated that it must also be determined whether “there has been as little infringement as possible in order to effect the desired result; whether, in a situation of expropriation, fair compensation is available; and whether the aboriginal group in question has been consulted with respect to the (…) measures being implemented.” The Court noted that the key is to ensure that sensitivity and respect for the rights of Aboriginal peoples are maintained, see Sparrow, supra note 4 at 1119.

30 Dorothy Marie Van der Peet, a member of the Sto:lo people, had been charged for selling ten salmon. While Van der Peet was permitted to fish for food under the authority of a food-fish licence, the sale of fish without an “Indian food-fish licence” was prohibited under s.27(5) of the British Columbia Fishery (General) Regulations, SOR/84-248 [British Columbia Fishery Regulations]. The question brought before the Court was whether Van der Peet had an Aboriginal right to sell fish, see R. v. Van der Peet, [1996] 2 S.C.R. 507 at paras. 2, 6 [Van der Peet].

31 Ibid. at para. 46 [emphasis added].

32 Ibid. at para. 55.

33 Ibid. at para. 60. The Van der Peet ruling held that selling fish was not “integral” to Sto:lo culture, but was instead only incidental in nature (ibid. at paras. 84-85).

34 Sparrow, supra note 4 at 1112.

35 Van der Peet, supra note 30 at para. 49.

36 Ibid.

37 R. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672.

38 R. v. Gladstone, [1996] 2 S.C.R. 723 [Gladstone].

39 Ibid. at para. 75.

40 Sparrow, supra note 4 at 1079; Hogg, Peter, Constitutional Law of Canada (Toronto: Carswell, 2003) at 626–627Google Scholar [Hogg].

41 Van der Peet, supra note 30 at paras. 314-316.

42 McNeil, Kent, Defining Aboriginal Title in the 90s: Has the Supreme Court Finally Got it Right? (Toronto: Robarts Centre for Canadian Studies, 1998) at 17Google Scholar. For further discussion, more generally, see McNeil, Kent, “How Can Infringements of the Constitutional Rights of Aboriginal Peoples be Justified?” in McNeil, Kent, Emerging Justice?: Essays on Indigenous Rights in Canada and Australia (Saskatoon: Native Law Centre, University of Saskatchewan, 2001) 281Google Scholar [Kent McNeil, Emerging Justice?].

43 Gladstone, supra note 38 at para. 72.

44 Aboriginal sovereignty could amount to a third order of government, such as that embodied in the failed Charlottetown Accord of 1992. See Charlottetown Accord, Draft Legal Text, October 9, 1992, at 37-38 [Charlottetown Accord]. The argument made here is that Aboriginal jurisdictional authority would be inherent in this regard, rather than merely delegated by parliament.

45 For further discussion, see Kent McNeil, “Envisaging Constitutional Space for Aboriginal Governments” in Kent McNeil, Emerging Justice? supra note 42, 184 at 211-14 [McNeil, “Envisaging”].

46 Pamajewon, supra note 5 at para 6.

47 R.S.C., 1985, c. C-46. This section states: “Every one who keeps a common gaming house or common betting house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.”

48 Van der Peet, supra note 30 at para. 24.

49 Ibid. at para. 27

50 Ibid.

51 Ibid. at para. 26.

52 Ibid. at para. 46.

53 McNeil, “Judicial Approaches” supra note 24 at 11. St. Catherine's Milling and Lumber Company v. The Queen (1888), 14 A.C. 46, distinguished between the right to natural resource rights and jurisdictional authority.

54 Pamajewon, supra note 5 at paras. 28-29. As noted by Hogg, Lamer C. J. “refused to characterize the claimed right as ‘a broad right to manage the use of their reserve lands’(…) which would surely have passed the Van der Peet test.” See Hogg, supra note 40 at 606-607.

55 Hogg, ibid. at 607.

56 Delgamuukw, supra note 6 at para. 7.

57 Delgamuukw v. British Columbia (1991), 79 D.L.R. (4th) 185 at 194.

58 Ibid. at 196-197.

59 Delgamuukw v. British Columbia (1993), 104 D.L.R. (4th) 470 at para. 171.

60 Delgamuukw, supra note 6 at paras. 6-7.

61 Kent McNeil, “The Post-Delgamuukw Nature and Content of Aboriginal Title,” in Kent McNeil, Emerging Justice? supra note 42 at 122 [McNeil, “Post-Delgamuukw”].

62 Delgamuukw, supra note 6 at para. 115. For further discussion, see McNeil, “Post-Delgamuukw” ibid.

63 See Delgamuukw, ibid. at para. 133 and Campbell, supra note 7 at paras. 137-138.

64 See John Borrows, “Sovereignty's Alchemy: An Analysis of Delgamuukw v. British Columbia” (1999) 37:3 O.H.L.J. 537 at 542 for a discussion of these limitations.

65 Delgamuukw, supra note 6 at para. 161.

66 Isaac, Thomas, Aboriginal Law: Commentary, Cases and Materials, 3rd ed. (Saskatoon, Saskatchewan: Purich Publishing Ltd., 2004) at 457, 469Google Scholar.

67 Sections 91 and 92 of the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3Google Scholar, reprinted in R.S.C. 1985, App. II, No. 5.

68 Campbell, supra note 7 at paras. 65, 66-67.

69 Reference Re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 at 75Google Scholar.

70 Reference Re Secession of Quebec1, [1998] 2 S.C.R. 217 at 239Google Scholar.

71 Campbell, supra note 7 at para. 65.

72 ibid. at para. 68.

73 ibid. at para. 69.

74 ibid. at para. 70.

75 ibid. at para. 114.

76 ibid. at para. 130-131.

77 ibid. at paras. 137-138.

78 However, while Campbell provided vital recognition of these expanded rights, can the approach and legal analyses undertaken by Williamson J. be reconciled with the approach of the Supreme Court of Canada towards expanded Aboriginal rights? Kent McNeil argues that Delgamuukw served to limit the “integral to a distinctive culture” test, applied in Pamajewon to Aboriginal self-government, only where a direct claim is made. Conversely, where self-government is incidental to a claim to Aboriginal title, it would appear that, based on Delgamuukw, the communal nature of title includes jurisdictional authority. Therefore, it appears that the ruling of Williamson J. is arguably workable within the confines of the Supreme Court jurisprudence on expanded Aboriginal rights such as self-government, see McNeil, “Judicial Approaches” supra note 24 at 22.

79 In the more recent Supreme Court ruling, Mitchell v. M.N.R., the concurring judgement of Binnie J. provided some important insight into a broader approach to an inherent right of self-government. Along with accepting the conceptions of “merged” sovereignty, outlined by the Royal Commission on Aboriginal Peoples, and “residual Aboriginal sovereignty,” accepted in American law, Binnie J. put forth an internal right of Aboriginal self-government that was workable within the confines of the Canadian federal system. See Mitchell v. M.N.R., [2001] 1 S.C.R. 911 at paras. 129, 165, with reference to RCAP, supra note 11 at 214. In-depth discussion of these details and the concurring judgement of Binnie J. in Mitchell are provided in McNeil, “Judicial Approaches” ibid. at 28-33.

80 Macklem, Patrick, Indigenous Difference and the Constitution of Canada (Toronto: University of Toronto Press, 2001) at 152 [Macklem]Google Scholar.

81 ibid. at 144.

82 ibid. at 156.

83 Customary law finds its source in reasonably consistent state practice. However, in order for a norm of customary international law to be recognised, “the state practice must be accompanied by a belief that the practice is obligatory, rather than merely convenient or habitual” see Joanna Harrington, “Canada's Obligations under International Law in Relation to Aboriginal Rights” (Article presented to the Pacific Business & Law Institute Conference, Ottawa, April 28-29, 2004) at 5 [unpublished] [Harrington]; Kindred, Hugh et al. , International Law: Chiefly as Interpreted and Applied in Canada, 6th ed. (Toronto: Emond Montgomery Publications Limited, 2000) at 5-9, 129–33Google Scholar [Kindred et al.].

84 Scholarly writing is generally given less weight as a “subsidiary source of international law,” with reference given only to those who are most highly qualified in their fields, see Harrington, ibid. at 6-7. For further discussion see Kindred et al., ibid. at 154-57.

85 Harrington, supra note 83 at 19.

86 ibid. at 18.

87 Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 70.

88 International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171Google Scholar (entered into force 23 March 1976).

89 International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 999 U.N.T.S. 3Google Scholar (entered into force 3 January 1976).

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91 Article 27 reads as follows: “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.” As noted by the Human Rights Committee at its fiftieth session in 1994, the exercise of cultural rights “manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. (…) That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law,” see Human Rights Committee, General Comment 23 at para. 7, reproduced in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.6 (2003) at 158. For further discussion, see Harrington, supra note 83 at 14.

92 Harrington, supra note 83 at 8-9.

93 United Nations Committee on Economic, Social and Cultural Rights, Concluding Observations on Canada, 57th Session, UN Doc. E/C.12/1/Add.3.1 (1998).

94 United Nations Human Rights Committee, Concluding Observations on Canada, UN HRCOR, 65th Session, CCPR/C/79/Add.105 (1999) [emphasis added].

95 Orkin, Andrew and Birenbaum, Joanna, “Aboriginal Self-Determination within Canada: Recent Developments in International Human Rights Law” (1999) 10:4Const. Forum Const. 112 at 114Google Scholar.

96 Supra note 94.

97 As alluded to earlier, there is continuing debate over whether Indigenous peoples do indeed constitute “peoples” with a right of self-determination under international law. While various states, including Canada, are gradually supporting some internal form of self-determination powers for Indigenous populations, this right has not yet been formally recognised under international law and a consensus among states has not yet been achieved. For further analysis of this ongoing debate see Daes, Erica-Irene, “The Right of Indigenous Peoples to ‘Self-Determination’ in the Contemporary World Order” in Clark, Donald & Williamson, Robert, eds., Self-Determination: International Perspectives (New York: St. Martin's Press, 1996) 47 at 55Google Scholar [Daes]; Coulter, Robert, “The Possibility of Consensus on the Right of Self-Determination in The UN and OAS Declarations on the Rights of Indigenous Peoples” (18 October 2002)Google Scholar [unpublished, draft discussion paper, Indian Law Resource Center, Helena, Montana] [Coulter].

98 Draft Declaration on the Rights of Indigenous Peoples, UN HCROR, Doc. E/CN-4/Sub.2/1994/2/Add.1, art. 3 [Draft Declaration].

99 OAS, Proposed American Declaration on the Rights of Indigenous Peoples, Reg. Ses. 95 (1997)Google Scholar.

100 Harrington, supra note 83 at 16.

101 Ibid.

102 Draft Declaration, supra note 98.

103 Daes, supra note 97 at 55.

104 Quebec, James Bay and Northern Quebec Agreement and Complementary Agreements (Québec: Les Publications du Québec, 1991)Google Scholar.

105 Calder v. Attorney-General of British Columbia, [1973] S.C.R. 313.

106 Specifically, the Supreme Court ruled that communal Aboriginal title as a legal right could indeed exist in British Columbia apart from the Royal Proclamation of 1763, see George R., Proclamation, 7 October 1763 (3 Geo. III), reprinted in R.S.C. 1985, App. II, No. 1. For further discussion on the importance of Calder in paving the way for contemporary land claims negotiations, see McNeil, “Judicial Approaches” supra note 24 at 1-4. McNeil also asserts that “[a]lthough self-government was not an issue in the Calder case, I am nonetheless of the view that the judicial seeds of an inherent right of self-government were planted by the Supreme Court…” (ibid. at 4). This assertion is based on the argument that in holding communal title, the Aboriginal community itself must have some form of governing mechanism through which to make decisions regarding the community (ibid.).

107 Yukon First Nations Land Claims Settlement Act, S.C., 1994, c. 34Google Scholar.

108 Tlicho Land Claims and Self-Government Act, S.C., 2005, c. 1Google Scholar.

109 Sahtu Dene and Métis Land Claim Settlement Act, S.C., 1994, c. 27Google Scholar.

110 Nunavut Land Claims Agreement, R.S.C., 1993, c.29.

111 Nisga'a Final Agreement Act, S.B.C., 1999, c.2Google Scholar.

112 Indian and Northern Development, Outstanding Business: A Native Claims Policy (Ottawa: Supply and Services, 1982)Google Scholar.

113 Indian Affairs and Northern Development, Federal Policy Guide, Aboriginal Self-Government: The Government of Canada's Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government (Ottawa: Public Works and Government Services, 1995)Google Scholar [Federal Policy Guide].

114 This came into effect on 1 March 1996 with the British Columbia Treaty Commission Act, B.C. 1995, c.45Google Scholar. As of April 1999, 51 First Nations from a total of 197 First Nations in British Columbia were involved in the British Columbia Treaty Commission process; see Wherrett, Jill, Aboriginal Self-Government (Ottawa: Parliamentary Research Branch, Library of Parliament, 1999) at 14Google Scholar.

115 This Office was first established in 1989. Its mandate expired in March 1996, but was re-established in December 1996.

116 There is a large body of literature and case law dealing with the fiduciary obligations of the Crown in negotiations with Aboriginal peoples. This issue is far too large to discuss within the confines of this article. Relevant case law includes R. v. Guerin, [1984] 2 S.C.R. 335; Blueberry River Indian Band v. Canada, [1995] 4 S.C.R. 344; and Kruger v. The Queen (1985), 17 D.L.R. (4th) 591 (Fed. C.A.). Case law regarding potential fiduciary obligations of the provincial governments includes Delgamuukw v. British Columbia (1991), 79 D.L.R. (4th) 185 (B.C.S.C.); Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 95; and Ontario (A.G.) v. Bear Island Foundation, [1991] 2 S.C.R. 570. Further scholarly discussion is found in numerous articles and books, including Kent McNeil, “Fiduciary Obligations and Federal Responsibility for the Aboriginal Peoples” in Kent McNeil, Emerging Justice? supra note 42, 309; Reynolds, James, A Breach of Duty: Fiduciary Obligations and Aboriginal Peoples (Saskatoon: Purich Publishing Ltd., 2005)Google Scholar; Rotman, Leonard, Parallel Paths: Fiduciary Doctrine and the Crown-Native Relationship in Canada (Toronto: University of Toronto Press, 1996)Google Scholar; Rotman, Leonard, “Provincial Fiduciary Obligations to First Nations: The Nexus Between Government Power and Responsibility” (1994) 32:4Osgoode Hall L.J. 735Google Scholar; Rotman, Leonard, “Wewaykum: A New Spin on the Crown's Fiduciary Obligations to Aboriginal Peoples?” (2004) 37:1U.B.C.L. Rev. 219Google Scholar.

117 Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73.

118 Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74.

119 Macklem, supra note 80 at 270-71.

120 Ibid. at 272.

121 Kelowna Agreement, signed November 2005.

122 For Aboriginal peoples, the 2006 Budget provides $450 million for the improvement of water supply, housing, education, and socioeconomic outcome, and up to $300 million each for off-reserve housing and housing in the territories, see The Budget Speech 2006 (2 May 2006) (Hon. Jim Flaherty).

123 The Accord ultimately failed because it was not ratified by 23 June 1990 by all of the required bodies. In the case of the Manitoba legislature, Elijah Harper, a lone Aboriginal MPP, voted against the Accord due to its inattention to Aboriginal rights.

124 The Native Women's Association of Canada (NWAC) was vehemently opposed to the lack of representation of Aboriginal women in the consultations leading up to the Charlottetown agreement. NWAC was not permitted to take part directly in the negotiations, and as a result, it took its case to court, see Native Women's Assn. of Canada v. Canada, [1992] 4 C.N.L.R. (F.C.A.); Native Women's Assn. of Canada v. Canada, [1994] 3 S.C.R. 627.

125 Charlottetown Accord, supra note 44 at 37-38.

126 The Accord was defeated in a “national” referendum—actually two referendums—one held in Quebec and another held in the rest of Canada. Notably, it was also rejected by many Aboriginal communities across Canada who held their own separate referendums as well. For further discussion on the repercussions of the failed Charlottetown Accord for Aboriginal peoples, see McNeil, “Envisaging” supra note 45.

127 The 1995 Inherent Right Policy of the federal government asserted that Aboriginal self-government rights may be provided under s. 35 in new treaties, either by way of comprehensive land agreements or as additions to existing treaties, see Federal Policy Guide, supra note 113.

128 Barsh, Russel Lawrence, “Political Recognition: An Assessment of American Practice” in Chartrand, Paul L. A. H., ed., Who are Canada's Aboriginal Peoples?: Recognition, Definition, and Jurisdiction (Saskatoon, Saskatchewan: Purich Publishing Ltd., 2002) 230 at 232Google Scholar.

129 ibid., quoting from RCAP, supra note 11 at 86.

130 Statements of the Canadian Delegation, UN HRCOR, 53rd Sess., (31 October 1996), Statement on Article 3, the Right to Self-Determination [emphasis added].

131 Coulter, supra note 97 at 4.

132 Minister of Indian Affairs and Northern Development, Gathering Strength: Canada's Aboriginal Action Plan (Ottawa: Public Works and Government Services Canada, 1997)Google Scholar.

133 Ibid. at 4-5 [emphasis added].

134 While there is no formal definition of “peoples” or of who constitutes “peoples,” either under international law or in the Canadian context, a further-developed definition of “peoples” would be useful in clarifying and solidifying the place of Aboriginal peoples in Canadian society as “peoples” and “nations” with a right of self-determination. This task is too large for the purposes of this article, but it is undertaken in part in Jennifer E. Dalton, “International Law and the Right of Indigenous Self-Determination: Should International Norms be Replicated in the Canadian Context?” Institute of Intergovernmental Relations (Queen's University) Working Article Series 1 (2005) at 6-10, and at further length in Dalton, Jennifer E., Aboriginal Self-Determination: Accommodation and Protection under Canadian Constitutional Law (LL.M. Thesis, Osgoode Hall Law School, York University, 2006)Google Scholar.

135 One notable exception that would have infringed the inherent right of Aboriginal self-government was the First Nations Governance Act (then Bill C-61), which proposed altering the band governance provisions of the Indian Act, R.S.C. 1985, c. 1–5Google Scholar. Prior to the contemporary period of governmental recognition of expanded Aboriginal rights, the Indian Act has provided a very limited form of self-government through delegated statutory authority. Of course, this form of self-government is not inherent in nature. Additionally, the fact that its governance provisions are very limited justifies the extensive criticism levelled at the Indian Act by Aboriginal and non-Aboriginal groups alike. Bill C-61, introduced in 2002 in the House of Commons by Robert Nault, at the time Minister of Indian Affairs, would have further restricted the already limited governance provisions of the Indian Act. The proposed bill received strong opposition by many Aboriginal leaders. It died after the Parliamentary session ended, but was revived as Bill C-7 in October 2002. When Paul Martin's new Liberal Government came to power a short time thereafter, the Prime Minister announced that this Act would not be implemented or explored further. For further discussion, see McNeil, Kent, “Aboriginal Rights: Challenging Legislative Infringements of the Inherent Aboriginal Right of Self-Government” (2003) 22 Windsor Y.B. Access Just. 329Google Scholar. One notable exception to the limitations of the Indian Act in this regard was the implementation in 1999 of the First Nations Land Management Act, S.C., 1999Google Scholar [FNLMA]. This Act was initiated by fourteen Indian Act Bands who wanted to manage their own reserve lands and related economic affairs by escaping the land management provisions of the Indian Act. The FNLMA is not a treaty under s. 35 of the Constitution Act, 1982, but it does allow First Nations who sign onto the Framework Agreement on First Nation Land Management, 1996, to actively develop their own land codes in accordance with the Agreement.

136 For example, see the Federal Policy Guide, supra note 113; Indian and Northern Affairs Canada, Federal Policy for the Settlement of Native Claims (Ottawa: Indian and Northern Affairs Canada, 1993); Task Force to Review Comprehensive Claims Policy, Living Treaties, Lasting Agreements: Report of the Task Force to Review Comprehensive Claims Policy (Ottawa: Department of Indian Affairs and Northern Development, 1985)Google Scholar.

137 One central example is the province of British Columbia, where numerous land claims are currently under way. The provincial government of British Columbia has displayed a significant degree of reticence, if not outright defiance, when faced with the serious task of resolving land claims for so many Aboriginal communities whose lands were never covered by treaty. Until more recently, the province has largely avoided negotiating modern-day treaties in most of British Columbia because it would not acknowledge the existence of Aboriginal territorial rights.

138 Some central critiques of “judicial activism” include Manfredi, Christopher, “Judicial Power and the Charter: Reflections on the Activism Debate” (2004) 53 U.N.B.L.J. 185Google Scholar; Martin, Robert, The Most Dangerous Branch: How the Supreme Court of Canada has Undermined Our Law and Our Democracy (Montreal: McGill-Queen's University Press, 2003)Google Scholar; Morton, F.L. & Knopff, Rainer, The Charter Revolution and the Court Party (Peterborough, Ontario: Broadview Press, 2000)Google Scholar. Some responses to these critiques can be found in Howe, Paul & Russell, Peter, Judicial Power and Canadian Democracy (Montreal: McGill-Queen's University Press, 2001)Google Scholar.