1. I shift between ‘Aboriginal’ people and ‘Indigenous’ people. For the most part these terms refer to the same communities. But ‘Aboriginal peoples’ refers to those non-European communities as defined in Canadian law (that part of which dealing with non-European peoples is referred to in this paper as Aboriginal law). Indigenous communities, on the other hand, define themselves, and in that sense I occasionally use this term of reference (particularly when it makes sense not to be referring to Indigenous peoples through the lens of Canadian law).

2. ‘Traditional’ is used with some trepidation, as I do not mean to suggest there are ways of living that are ‘authentic’ in some way or other. I am also leery of placing argumentative weight on notions of preserving or enhancing traditional ways of living. While I weigh highly the values put on these ways of living they should be used, I would say, not as themselves grounding arguments but as expressions of self-determination. That is, instead of arguing that certain actions should be taken by the Crown to facilitate continued forms of living because they are ‘Aboriginal’, I would say actions protecting ways of living are supported because these ways of living are collectively chosen by the peoples in question. Besides removing the threat that as a people move away from ‘traditional’ ways they lose the ability to steward their lands, it accords with the reality of the situation of colonialism, which is the ongoing attempt by colonial powers to assert their control over questions of how people should live and act.

3. Constitution Act, 1982, s 35 (1), being Schedule B to the Canada Act 1982 (UK), 1982, c 11 states:

4. ‘Aboriginal law’ is understood to refer to the law of the Canadian state as it applies to the Aboriginal peoples of Canada (those peoples referred to in section 35 of the Constitution Act, 1982). This is usually contrasted with ‘Indigenous law’, the laws and systems of law of Indigenous peoples (peoples self-defining themselves, with historical and cultural roots distinct from those of European settler-societies).

5. Mary Ellen Turpel demonstrates the threat posed by the discourse of rights and its infusion into human rights regimes that intersect with Indigenous legal and political systems in Turpel, Mary Ellen, “Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies, Cultural Differences” [1989-1990] Can Hum Rts YB 3.Google Scholar

6. I am comfortable noting that in some sense this is also the governing body for Indigenous peoples in Canada, though in many cases it is arguably only a de facto governing body, with many failed policies and many unwilling subjects.

7. Raz, Joesph, The Authority of Law: Essays on Morality and Law (Oxford: Clarendon Press, 1979).CrossRefGoogle Scholar

8. Ibid and Raz, Joseph, Between Authority and Interpretation (Oxford: Oxford University Press, 2009).CrossRefGoogle Scholar

9. Austin, John, The Province of Jurisprudence Determined (London: John Murray, 1832).Google Scholar

10. Hart, HLA, The Concept of Law (Oxford: Clarendon Press, 1961)Google Scholar. Most of the positive discussion around the nature of obligations as related to rule-following takes place in Chapter 5, ‘Law as the Union of Primary and Secondary Rules’.

11. This is just to say that they must play by them, in order for them to be playing a game of hockey. They need not, obviously, explicitly accept the rules before engaging in the game. But if they are not playing by the rules arguably there is no game ongoing.

12. For more on the transition from norm to normativity (in a naturalist picture) see Pettit, Philip, ‘How Norms Become Normative’ in Cane, Peter, ed, The Hart-Fuller Debate in the Twenty-First Century (Portland: Hart, 2010) ch 13 at 227-47Google Scholar.

13. Hart, supra note 10 at 80-82.

14. Dworkin, Ronald, Taking Rights Seriously (Cambridge: Harvard University Press, 1977) at 52.Google Scholar

15. Ibid at 52.

16. See, e.g., Tamanaha, Brian, “Folly of the Social Scientifc Concept of Legal Pluralism” (1993) 20 JL & Soc’y 192 Google Scholar and Realistic Socio-Legal Theory: Pragmatism and a Social Theory of Law (Oxford: Clarendon Press, 1997)Google Scholar [note: Tamanaha critiques social science attempts—operating under the umbrella of legal pluralism—at providing a useable common definition of ‘law’] and Twining, William, General Jurisprudence: Understanding Law From a Global Perspective (Cambridge: Cambridge University Press, 2009).CrossRefGoogle Scholar

17. This presents what I argue to be a non-imperialist approach to the development of understanding around such things as the socially constructed institution of law. This approach, I would argue, also avoids slipping over to the other extreme, where ‘construction’ is held to imply the presence of some sort of free and unique creative force, unbound by natural laws otherwise determining the motions of particles, waves and felds.

18. Raz, supra note 7.

19. One may have an obligation not so easily translated into the correlative of a right—for example, Sally may have an obligation to pay her taxes. In the realm of Aboriginal rights, however, Crown obligations are commonly understood to only attach to, or emerge from, consideration of rights.

20. R v Sparrow, [1990] 1 SCR 1075 [Sparrow].Google Scholar

21. R v Van der Peet, [1996] 2 SCR 507 [Van der Peet].Google Scholar

22. R v Gladstone, [1996] 2 SCR 723.Google Scholar

23. R v Pamajewon, [1996] 2 SCR 821.Google Scholar

24. Delgamuukw v British Columbia [1997] 3 SCR 1010 [Delgamuukw].Google Scholar

25. Even Aboriginal title is conceived of (in Canada) as a form of Aboriginal right. A spectrum or such rights is imagined, with rights to land (Aboriginal title) lying on one end of this spectrum. See Delgamuukw, ibid at para 138.

26. The question of ‘sufficient linkage’ has both conceptual and evidentiary aspects to it. On the one hand, there must be conceptual links developed between modern practices (claimed as rights) and historic practices or customs. On the other hand, in a court setting this must be done within strictures set out around what counts as acceptable evidence and what weight acceptable evidence can be given. In the latter regard see Delgamuukw, supra note 24, and Mitchell v MNR, [2001] 1 SCR 911.

27. I work through some of these challenges in some detail in “Indigenous Authority, Canadian Law and Pipeline Proposals” (2013) 25 J Envtl L & Prac 245.Google Scholar

28. When thinking of the rights and freedoms articulated in the Charter the natural body to consider holding obligations is the state. Increasingly, as well, courts have been willing to find legal obligations on the Crown in relation to such matters as veteran’s benefits (when the government is found to have held a fduciary responsibility to manage these funds in the best interests of the benefciaries). See, for example, Authorson v Canada (AG), [2003] 2 SCR 40. While the Supreme Court eventually held against the veterans and their families, all courts agreed that the federal government owed duties in relation to interest monies on benefits—the Supreme Court found, however, that the government acted legally when passing legislation denying these monies to the claimants.

29. Hartley v Cunningham, 2013 ONSC 2929.Google Scholar

30. This is the context for the Supreme Court’s ruling in Haida Nation v British Columbia (Minister of Forests), [2004] 3 SCR 511. With the demise of the effectiveness of the interlocutory injunction in the 1990’s First Nations in British Columbia found their interests being ignored by the provincial government. The Supreme Court of Canada found the government was using the fact these interests had not been settled in court or through negotiations as reason to continue on with business as usual. This amounted to ‘running roughshod’ over these interests. The Court elevated a concept—that of the ‘honour of the Crown’—so as to ground a newly strengthened duty (that of consultation, which may require in some circumstances accommodation). While generating a signifcant boost in litigation and negotiations, it is not clear that the government took this new environment to suggest it must act as though it has legal obligations when Aboriginal interests are at stake.

31. Constitution|Act, 1982, s 52, being Schedule B to the Canada Act (UK), 1982, c 11.

32. At the very least, questions around processes to settle matters yet undetermined are themselves reasonably stable.

33. Hart, supra note 10 at 89-96, 102-07. (Note a certain amount of reading between the lines is required.)

34. Students of political theory will recognize Hobbesian/Lockean mythology in all this.

35. These are the same interactions some might otherwise think lead to a process tied to ‘reconciliation’ in some meaningful sense.

36. And likewise regardless of the presence of reasons she might articulate as to why she might not want to pay, no matter how good third parties might independently think these reasons are, we would be licensed to say she had a legal obligation.

37. Sparrow, supra note 20

38. Van der Peet, supra note 21.

39. It is this test an Aboriginal community would need to meet should it hope to assert a legal right to make decisions about the use of its traditional territories. One exercise (avoided earlier) would be to work through the likelihood of an Aboriginal community succeeding in such a task. For any number of reasons it would be exceedingly difficult.

40. Calder v British Columbia (AG), [1973] SCR 313.Google Scholar

41. Borrows, John, “Let Obligations Be Done” in Foster, H, Raven, H & Webber, J, eds, Let Right Be Done: Aboriginal Title, the Calder Case and the Future of Indigenous Rights (Vancouver: UBC Press, 2007) ch 11 at 201–15.Google Scholar

42. Some governments of Canada recognized the Royal Proclamation as an expression of law (and not just policy), and as a result some of these governments understood they had a legal obligation to obtain surrenders of land (through the right processes) in order to fully ‘perfect’ Crown title. The large historic treaties make some sense with that understanding in the background. Very little else in Crown-Aboriginal relations rests on the Crown similarly recognizing it must do x, y and z because it had legal obligations a, b or c. Beyond this, it is also instructive to note that actions under what was taken to be a legal obligation have this odd character—explored in this paper—that they could be removed unilaterally. Should the appropriate legislative body act with ‘clear and plain intent’ (the test from Sparrow, supra note 20), any such legal obligations as might have existed could be erased.

43. Constitution Act, 1867 (UK), 30 & 31 Vict, c 3.

44. It also meant, of course, that the federal government alone had power to legislate in relation to Indians and Lands Reserved for Indians, including that it alone could extinguish these interests.

45. This was to occur as the result of a policy shift, announced in the infamous ‘White Paper’ of 1969. As a result of signifcant political opposition from Indian peoples and leaders (voiced in, inter alia, the aptly named ‘Red Paper’ produced by the Indian Association of Alberta), this policy was shelved (though some—like the present author—might suggest it was not dismissed but rather became a policy to be implemented more carefully, less overtly).

46. This is need arising to circumvent confict that follows from parties having varied notions around what to do in value-pluralist settings.

47. This is not to ignore other aspects of this situation affecting people’s strategies—many are aware of the continuing effects of a long colonial history, of the fact the landscape is essentially set by colonial authorities, and yet see few alternatives to waging battle within Canadian institutions. The call in this paper is for more in those situations to consciously use discourse that makes clear to the world that alternative conceptions of key legal and political tools are alive and available.