¹ R. v. Van der Peet, [1996] 2 S.C.R. 507 at para. 3.

² Clifford, James, The Predicament of Culture (Cambridge Mass: Harvard University Press, 1988) at 338.Google Scholar

³ Hobsbawm, Eric & Ranger, Terrence, eds., The Invention of Tradition (New York: Columbia University Press, 1983).Google Scholar

⁴ Appadurai, Arjun, Modernity at Large: Cultural Dimensions of Globalization (Minneapolis: University of Minnesota Press, 1996) at 13.Google Scholar

⁵ R. v. Marshall (No. 2), [1999] 3 S.C.R. 533 at para. 2.

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

⁷ Dara Culhane provides a detailed examination of the Delgamuukw case, with an emphasis on judicial process as a mechanism for the extinguishment of distinct aboriginal rights and title. See Culhane, Dara, The Pleasure of the Crown: Anthropology, Law and First Nations (Burnaby, British Columbia: Talon Books, 1998).Google Scholar

⁸ Van der Peet, supra note 1 at para. 3.

⁹ The following summary of the antecedents of the Canadian Supreme Court's approach to culture owes a great deal to Asch's, Michael “The Judicial Conceptualization of Culture after Delgamuukw and Van der Peet” (2000) 5:2Rev. Const. Stud. 119.Google Scholar

¹⁰ In re: Southern Rhodesia, (1919) AC 210 (PC) note 4 at 233–34, cited in Asch, ibid., at 121.

¹¹ Hamlet of Baker Lake v. Minister of Indian Affairs and Northern Development et al. [1980] 1 F.C. 518 at 557–58, cited in Michael Asch, ibid. at 122.

¹² Ibid.

¹³ Ibid. at 559.

¹⁴ Judicial thinking in die 1970s no longer shows attachment to universal laws or stages of development. But even though the nineteenth century style universal paradigm is not evident in Baker Lake, the judgment has a lingering attachment to “organization” and “elaborate institutions.”

¹⁵ Van der Peet, supra note 1 at para. 56 [emphasis in original].

¹⁶ This point is especially clearly expressed the dissenting opinion of Justice L'Heureux- Dubé in R v. Van der Peet: “Aboriginal people's occupation and use of North American territory was not static, nor, as a general principle, should be the aboriginal rights flowing from it. Natives migrated in response to events such as war, epidemic, famine, dwindling game reserves, etc. Aboriginal practices, traditions and customs also changed and evolved, including the utilization of the land, methods of hunting and fishing, trade of goods between tribes, and so on (…) Accordingly, the notion of aboriginal rights must be open to fluctuation, change and evolution, not only from one native group to another, but also over time”, ibid., at para. 113.

¹⁷ Van der Peet, supra note 1 at para. 65.

¹⁸ Patrick Macklem makes a similar observation when he writes, “By protecting only practices, customs, and traditions integral to Aboriginal cultures, the Court treats Aboriginal cultural difference as the only aspect of indigenous difference that possesses constitutional significance.” Macklem, Patrick, Indigenous Difference and the Constitution of Canada (Toronto: University of Toronto Press, 1992) at 61.Google Scholar

¹⁹ Van der Peet, supra note 1 at para. 45.

²⁰ R. v. Gladstone, [1996] 2 S.C.R. 723 at para. 22.

²¹ Marshall, supra note 5, Motion for Rehearing and Stay at 2.

²² Marshall, supra note 5 at para. 40.

²³ M.N.R. v. Mitchell, [2001] 1 S.C.R. 911 at para. 153.

²⁴ I am grateful to Paul Joffe for bringing this “species-by-species” approach to aboriginal subsistence rights to my attention, thus providing a key stimulus for my research on this topic (pers. comm., Nov. 14, 2000).

²⁵ Prominent among these are the decisions yet to be made by the courts in the Atlantic Provinces concerning lobster fishing by members of such communities as Burnt Church (New Brunswick) and Indian Brook (Nova Scotia). The ongoing contest in the Atlantic region between Aboriginal peoples asserting their rights of subsistence and the organized interests of non-Aboriginal commercial fishermen also has important implications for the elaboration of Aboriginal rights of self-determination in Canada, evident in the way the Supreme Court has recently sought to subsume Aboriginal subsistence rights under the authority of the federal government.

²⁶ International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, art. 27 [ICCPR].

²⁷ See Fisher, Robin, “Judging History: Reflections on the Reasons for Judgment in Delgamuukw v. B.C.” (1992) British Columbia Studies 45.Google Scholar

²⁸ See Culhane, supra note 7, for a detailed account of this testimony and of Justice McEachern's decision.

²⁹ See, for example: Bourgeois, Donald, “The Role of the Historian in the Litigation Process,” (1986) Canadian Historical Review. 67:2: 195–205Google Scholar; Dickason, C.M. and Gidney, R.D., “History and Advocacy: Some Relflections on the Historian's Role in Litigation” (1987) 68:4Canadian Historical Review 576–85Google Scholar; Ray, Arthur “Creating the Image of the Savage in Defence of the Crown: The Ethnohistorian in Court” (1990) 6:2Native Studies Review 13.Google Scholar

³⁰ Marshall, supra note 5 at para. 37.

³¹ Cited in Richardson, Boyce, Strangers Devour the Land (Vancouver: Douglas & McIntyre, 1991) at 41.Google Scholar

³² Mitchell, supra note 23 at 2.

³³ Anaya, James, Indigenous Peoples in International Law (Oxford: Oxford University Press, 1996) at 4.Google Scholar I discuss the connection between human rights and indigenous identity in The Origins of Indigenism: Human Rights and the Politics of Identity (Los Angeles: University of California Press, 2003).

³⁴ Mitchell, supra note 23 at 3.

³⁵ ICCPR, supra note 26.

³⁶ “[T]he Committee observed that the author [Chief Ominayak], as an individual, could not claim under the Optional Protocol to be a victim of a violation of the right of self determination (…) which deals with rights conferred upon peoples, as such.” Views of the Human Rights Committee under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political rights. UN doc. No. CCPR/C/38/D/167/1984, at para. 13.3. Against the argument that this approach by the Committee renders article 1 of the ICCPR unenforceable since only individuals can submit complaints under the Optional Protocol, the Committee suggested that “there is no objection to a group of individuals, who claim to be similarly affected, collectively to submit a communication about alleged breaches of their rights [under article 1]”, ibid., at para. 32.1. This still indicates a tension between the individual rights orientation of the Optional Protocol and the collective rights inscribed in article 1 of the ICCPR.

³⁷ Ibid., at para. 2.2. In this context, an appended submission by an individual member of the Committee, Mr. Nisuke Anudo, is informative. His dissenting concern appears to be that the right to enjoy one's own culture could be interpreted narrowly to exclude considerations of change. He argues that “outright refusal by a group in a given society to change its traditional way of life may hamper the economic development of the society as a whole.” This individual opinion thus legitimately points to issues of adaptation and change as important components of cultural rights, but it overlooks considerations of self-determination, leaving it possible to argue that forcing a people to change their way of life through unwanted extractive industrial activities is not a violation of their cultural rights.

³⁸ Views of the Human Rights Committee under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, UN doc. No. CCPR/C/52/D/511/1992, para. 9.3 [Emphasis in original].

³⁹ Scheinin, Martin, “The Right to Enjoy a Distinct Culture: Indigenous and Competing Uses of Land” in Orlin, Theodore, Rosas, Allan & Scheinin, Martin, eds., The Jurisprudence of Human Rights Law: A Comparative Interpretive Approach (Turku/Abo: Institute for Human Rights, Åbo Akademi University, 2000) 159 at 169.Google Scholar

⁴⁰ Ibid., at 197–98.

⁴¹ Oleschaeger, Max, The Idea of Wilderness: From Prehistory to the Age of Ecology (New Haven: Yale University Press, 1991) at 8.Google Scholar

⁴² Ibid., at 14.

⁴³ Krech, Shepard III, The Ecological Indian; Myth and History (New York: W.W. Norton & Company, 1999) at 213.Google Scholar

⁴⁴ Morris, Chris, “Non-native fishermen in NB call for immediate end to Burnt Church fishery” Canadian Press (17 September 2001).Google Scholar

⁴⁵ Van der Peet, supra note 1 at 2.

⁴⁶ Taylor, Charles, Multiculturalism, ed. by Gutmann, Amy (Princeton: Princeton University Press, 1994) at 38.Google Scholar

⁴⁷ This test of cultural distinctiveness is outlined under the heading, “The Aboriginal Right” in R. v. Van der Peet, supra note 1 at para. 2–3.