4 .The Generative Structure Of Aboriginal Rights (original) (raw)

2016, From Recognition to Reconciliation

Are aboriginal rights historical rights-rights that gained their basic form in the distant past? Or are they generative rights-rights that, although rooted in the past, have the capacity to renew themselves, as organic entities that grow and change? Section 35(1) of the Constitution Act, 1982 1 provides little guidance on the point, referring ambiguously to Aexisting aboriginal and treaty rights@. 2 In the Van der Peet case, 3 decided in 1996, the Supreme Court of Canada characterized aboriginal rights primarily as historical rights, moulded by the customs and practices of aboriginal groups at the time of European contact, with only a modest ability to evolve. However, as a brief review of the Court=s reasoning reveals, this approach left much to be desired. In his majority opinion, Chief Justice Antonio Lamer holds that s. 35(1) is animated by two main purposes: recognition and reconciliation. 4 With respect to the first, he argues that the doctrine of aboriginal rights exists because of one simple fact: when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries. It is this fact that distinguishes aboriginal peoples from all other groups in Canadian society and mandates their special legal and constitutional status. So a major purpose of s. 35(1) is to recognize the prior occupation of aboriginal peoples. 5 However, recognition is not the sole purpose of the section, which also aims to secure reconciliation between indigenous peoples and the Crown. Lamer C.J. notes that the essence of aboriginal rights lies in their bridging of aboriginal and non-aboriginal cultures, so that the law of aboriginal rights is neither entirely English nor aboriginal in origin: it is a form of intersocietal law