² I am using sovereignty in the sense that it is used when describing the sovereignty enjoyed by states as that is commonly understood.

³ This is not a view generally shared by Indigenous peoples. For example, Antonia Mills points out: “To the Gitksan and Witsuwit'en, [in British Columbia] it was, and is, not apparent that the federal government has ever clearly established a right to their land”. Mills, A., Eagle Down Is Our Law (Vancouver: University of British Columbia Press, 1997) at 5.Google Scholar

⁴ Slattery, B., The Land Rights of Indigenous Canadian Peoples, as Affected by the Crown's Acquisition of the Territory (PhD dissertation, University of Oxford 1979) [unpublished].Google Scholar

⁵ Asch, M. & Macklem, P., “Aboriginal rights and Canadian sovereignty: An essay on R. v. Sparrow” (1991) 29–2 Alberta L. Rev. 498Google Scholar; Asch, M., “Aboriginal Self-Government and the Construction of Canadian Constitutional Identity” (1992) 30:2Alberta L. Rev. (Constitution Series) 465Google Scholar; Asch, M., “Errors in the Delgamuukw: An Anthropological Perspective” in Cassidy, F., ed., Aboriginal Title in British Columbia: Delgamuukw vs. The Queen (Vancouver and Montreal: Oolichan Books and the Institute for Research on Public Policy, 1992)Google Scholar [hereinafter “Errors in the Delgamuukw”]; Asch, M. & Bell, C., “Definition and Interpretation of Fact in Canadian Aboriginal Title Litigation: An Analysis of Delgamuukw” (1994) 19:2Queen's L. J. 503.Google Scholar

⁶ For discussions by other scholars who have reached similar conclusions, see Mackiem, P., Indigenous Difference and the Constitution of Canada (Toronto: University of Toronto Press, 2001) at 95Google Scholar [hereinafter Indigenous Difference]; McNeil, K., Emerging Justice? Essays on Indigenous Rights in Canada and Australia (Native Law Centre, University of Saskatchewan, 2001) at 121–23Google Scholar [hereinafter Emerging Justice?]; and Russell, P., Constitutional Odyssey, Can Canadians Become a Sovereign People? (Toronto: University of Toronto Press, 1993) at 132.Google Scholar

⁷ Calvin's Case (1608), 7 Co Rep 1a, 2 State Tr 559.

⁸ Mabo v. Queensland (1992), 107 A.L.R. 1 (Aust. H.C.)

⁹ In Re: Southern Rhodesia (1919) AC 210 (PC) at 233.

¹⁰ “Errors in Delgamuukw”, supra note 5.

¹¹ Calder v. British Columbia (A. G.) (1970), 74 W.W.R. 481 (BCCA).

¹² Calder v. British Columbia (A.G.) (1973), 34 D.L.R. (3^rd) 145; [1973] S.C.R. 313.

¹³ Ibid. at 156.

¹⁴ Ibid. at 169–70.

¹⁵ Asch, M. & Bell, C., “Challenging Assumptions: The Impact of Precedent in Aboriginal rights Litigation” in Asch, M., ed., Aboriginal and Treaty Rights in Canada: Essays on Law, Equality and Respect for Difference (Vancouver: University of British Columbia Press, 1997) 38Google Scholar [hereinafter “Challenging Assumptions”].

¹⁶ M. Asch, “Errors in Delgamuukw”, supra note 5 at 221.

¹⁷ Asch, M., “From Calder to Van der Peet: Aboriginal Rights and Canadian Law, 1973–96” in Havemann, P., ed., Indigenous Peoples' Rights in Australia, Canuda, and New Zealand (Melbourne: Oxford U niversity Press, 1999) 428Google Scholar [hereinafter “From Calder to Van der Peet”].

¹⁸ Hamlet of Baker Lake v. Minister of Indian Affairs (1979), 107 D.L.R. (3d) 513 (F.C.). This decision was at the trial division of the Federal Court. It was not appealed.

¹⁹ Ibid. at 557.

²⁰ Ibid.

²¹ Delgamuukw v. British Columbia (1991), 79 D.L.R (4^th) (B.C.S.C.) 185 at 419; affirmed (1993), 104 D.L.R. (4^th) (B.C.C.A.) 470; appeal allowed in part [1997] 3 S.C.R. (S.C.C.) 1010

²² Delgamuukw v. British Columbia (1991), 79 D.L.R (4^th) (B.C.S.C.) 185 at 441.

²³ A special issue of BC Studies (No.95, 1992) was devoted to excoriating McEachern's reasons for judgment in Delgamuukw.

²⁴ R. v. Sparrow, [1990] 70 D.L.R. (4th) 385 at 398.

²⁵ Ibid. at 404.

²⁶ Asch and Macklem, supra note 5.

²⁷ R. v. Van der Peet, [1996] 2 S.C.R. 507

²⁸ Ibid. at 534.

²⁹ Ibid. [emphasis theirs].

³⁰ Ibid. at 548.

³¹ P. Macklem comes to a similar conclusion in a recent book: “[i]nternational law regarded North America as vacant because it viewed Aboriginal nations to be inferior to European nations”, and “[g]iven its inherent ethnocentrism, the proposition of Aboriginal inferiority cannot stand as a valid reason for excluding Aboriginal nations from the distribution of sovereignty on the continent” (Indigenous Difference, supra note 6 at 121).

³² Milirrpum v. Nabalco Pty. & Commonwealth of Australia (1971), FLR 141 (SCNT).

³³ Mabo v. Queensland (1992), 107 A.L.R. 1 (Aust. H.C.) at 27 cited in Spaulding, R., “Are Aboriginal Rights Discriminatory?” (Master of Laws Thesis, Queen's University 1995) [unpublished] at 16.Google Scholar

³⁴ Ibid.

³⁵ Mabo, supra note 33 at 82; Spalding, supra note 33 at 221.

³⁶ United Nations, General Assembly, Declaration on the Granting of Independence to Colonial Countries and Peoples (New York: United Nations, 1961)Google Scholar cited in Asch, M., Home and Native Land: Aboriginal Rights and the Canadian Constitution (Toronto: Methuen Publishers, 1984) at 130Google Scholar [hereinafter Home and Native Land].

³⁷ Western Sahara: Advisory Opinion [1975] International Court of Justice Reports 12 at 14.

³⁸ Ibid. at 39.

³⁹ Ibid.

⁴⁰ Home and Native Land, supra note 36.

⁴¹ This position is echoed by Kent McNeil: “No Canadian court has yet come up with a convincing explanation of what happened to Aboriginal sovereignty, or how that sovereignty can be denied in light of the Indian treaties which Canada continued to sign after Confederation” (Emerging Justice, supra note 6 at 101).

⁴² Quoted with respect to Treaty 11 in Fumoleau, R., As Long as This Land Shall Last: A History of Treaty 8 and Treaty 11, 1870–1939 (Toronto: McClelland & Stewart, 1975) at 166.Google Scholar

⁴³ Treaty 7 Elders and Tribal Council, The True Spirit and Original Intent of Treaty 7 (Montreal: McGill-Queen's University Press, 1996)Google Scholar; Price, R., ed., The Spirit of the Alberta Indian Treaties (Montreal: Institute for Research on Public Policy and Indian Association of Alberta, 1980).Google Scholar

⁴⁴ Asch, fieldnotes, 1969–70.

⁴⁵ The person responsible for the initial Treaty payment would be the Treaty Commissioner.

⁴⁶ Smith, S., Dene Treaties, Anthropology and Colonial Relations (PhD Dissertation, University of Alberta 1979) [unpublished] at 80.Google Scholar

⁴⁷ Fumuleau, supra note 42.

⁴⁸ Aasen, W., “Report on Treaty 8 in British Columbia” prepared for the Royal Commission on Aboriginal Peoples by the B.C. Treaty 8 Tribal Council [unpublished, 1993]Google Scholar; Lamothe, R., “‘It Was Only a Treaty’: Treaty 11 According to the Dene of the Mackenzie Valley” prepared for the Deh Cho Tribal Council, the Dene Nation and the Royal Commission on Aboriginal Peoples [unpublished, 1993]Google Scholar; and Smith, S., “The Treaty Relationship: Dene and Treaty 11” prepared for the Royal Commission on Aboriginal Peoples by the Deh Cho Tribal Council [unpublished, 1993].Google Scholar

⁴⁹ There are many examples of the view, on the part of Indigenous peoples, that treaties did not extinguish sovereignty and were, in fact, intended to develop political relations. Some of these are: Williams, P., “Kayanerenh Teskenonhweronne: Relations Between the Haudenosaunee and the Crown, 1664–1993” prepared for the Royal Commission on Aboriginal Peoples [unpublished, 1993]Google Scholar and Wicken, B., “An Overview of the 18th Century Treaties Signed Between the Mi'kmaq and Wuastuwiuk Peoples and the English Crown, 1725–1928” report submitted to the Royal Commission on Aboriginal Peoples [unpublished, 1993].Google Scholar

⁵⁰ “Challenging Assumptions,” supra note 15.

⁵¹ Re: Southern Rhodesia, supra note 9.

⁵² Slattery, B., “Aboriginal Sovereignty and Imperial Claims” (1991) 29 Osgoode Hall L. J. 681.Google Scholar Slattery develops an analogous argument which he bases on the presumption of a “Principle of Territoriality” which suggests that “every human society whose members draw the essentials of life from territories in their possession … has a right to these territories as against other societies and individuals.” He later (ibid. at 701) uses this principle to assert that the lands in Canada and the United States could not have been “legally vacant territories” prior to colonization and hence that a terra nullius thesis is inapplicable. While I accept that the Principle of Territoriality may be useful in certain circumstances, I believe that the principle that human societies always contain institutions and values reconcilable to the concepts of sovereignty and underlying title, as constituent elements of their nature, is a firmer basis upon which to rest the rights discussed here.

⁵³ Asch, M. & Zlotkin, N., “Affirming Aboriginal Title: A New Basis for Comprehensive Claims Negotiations” in Asch, M., ed., Aboriginal and Treaty Rights in Canada: Essays on Law, Equality and Respect for Difference (Vancouver: University of British Columbia Press, 1997)Google Scholar [hereinafter “Affirming Aboriginal title”].

⁵⁴ “From Calder to Van der Peet” supra note 17.

⁵⁵ Among these, an attempt to resolve the relationship in a manner that promotes justice as Canada has seen it in the context of other colonial situations ranks highly in my mind.

⁵⁶ “Affirming Aboriginal title”, supra note 53.

⁵⁷ Royal Commission on Aboriginal Peoples, “Partners in Confederation” (Ottawa: Minister of Supply and Services, 1993)Google Scholar [hereinafter “Partners in Confederation”].

⁵⁸ The RCAP argument is taken up in some detail by Judge Binnie of the Supreme Court of Canada in some obiter remarks in the recent case of Mitchell v. M.N.R.I, [2001] 1 S.C.R. 9, where he describes with approval the American concept of “residual” aboriginal sovereignty. In Emerging Justice, Kent McNeil proposes a similar approach, which acknowledges “the limited territorial sovereignty of the Aboriginal peoples as nations within Canada”, supra note 6 at 95.

⁵⁹ “Partners in Confederation”, supra note 57 at 699, fn 18.

⁶⁰ P. Macklem also advocates a “distribution” of sovereignty among three levels of government (Indigenous Difference, supra note 6 at 123). However, there is a question as to the strength of the powers of the Aboriginal vis-à-vis those of the Provincial and Federal levels which are explicitly recognized in the constitution. While the specifics have, of course, yet to be resolved, the approach taken does seem to point to an American style resolution to the issue whereby the Aboriginal sovereign exists but is, in an ultimate sense, subordinate to the Congress, – or in the Canadian case the Parliament and, perhaps, the legislatures. The difference would be that, because Aboriginal rights are constitutionalized in Canada, passage of laws that interfered with them would undergo a specific process not required by normal legislation.

⁶¹ One vision of the future is articulated by Alfred, G. in Heeding the Voices of Our Ancestors (Toronto: University of Toronto Press, 1995) at 103Google Scholar where he says “Mohawks see the consideration of self-government arrangements as part of the inevitable process of divesting themselves from colonized status and regaining the status of an independent sovereign nation.”

⁶² Royal Commission on Aboriginal Peoples, Transcripts of the Public Meetings of the Royal Commission on Aboriginal Peoples, The Pas, Manitoba (20 May, 1992) at 252.

⁶³ Venne, S., “Understanding Treaty 6: An Indigenous Perspective” in Asch, M., ed., Aboriginal and Treaty rights in Canada: Essays in Law, Equity and Respect for Difference (Vancouver: University of British Columbia Press, 1997) 184.Google Scholar

⁶⁴ Home and Native Land, supra note 36 at 105

⁶⁵ Bear, Leroy Little, “Aboriginal Rights and the Canadian ‘Grundnorm’” in Ponting, J.R., ed., Arduous Journey: Canadian Indians and Decolonization (Toronto: McClelland and Stewart, 1986) 246.Google Scholar

⁶⁶ Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.

⁶⁷ R. v. Marshall, [1997] 3 S.C.R. 456.

⁶⁸ Chamberlin, J.E., “Culture and Anarchy in Indian Country” in Asch, M., ed., Aboriginal and Treaty Rights in Canada: Essays on Law, Equality, and Respect for Difference (Vancouver: University of British Columbia Press, 1997) 3.Google Scholar