Eviscerating Historic Treaties: Judicial Reasoning, Settler Colonialism, and ‘Legal’ Exercises of Exclusion
| Date | 01 December 2018 |
| Author | Michael McCrossan |
| DOI | http://doi.org/10.1111/jols.12131 |
| Published date | 01 December 2018 |
JOURNAL OF LAW AND SOCIETY
VOLUME 45, NUMBER 4, DECEMBER 2018
ISSN: 0263-323X, pp. 589±616
Eviscerating Historic Treaties: Judicial Reasoning, Settler
Colonialism, and `Legal' Exercises of Exclusion
Michael McCrossan*
This article examines the reasoning of Canadian Supreme Court
justices in the area of Aboriginal treaty rights, paying particular
attention to the Grassy Narrows (2014) decision. By not only engaging
with the internal logics contained within treaty rights decisions, but
also by further contextualizing the decisions and comparing them to
the transcripts of their respective hearings, it provides an additional
perspective on the socio-cultural relations of power inscribed within
the legal field. Ultimately, the article demonstrates that members of the
Supreme Court have displayed a consistent orientation towards logics
predicated upon the absorption and elimination of Indigenous legal
perspectives. In fact, what a reading of the hearing transcripts together
with the Grassy Narrows decision reveals is a judicial privileging of
established property interests and extractive impulses underpinning the
settler-colonial development of the Canadian state.
INTRODUCTION
. . . the context of 1982 is surely enough to tell us that this is not just a
codification of the case law on aboriginal rights that had accumulated by 1982.
Section 35 calls for a just settlement for aboriginal peoples. It renounces the old
rules of the game under which the Crown established courts of law and denied
those courts the authority to question sovereign claims made by the Crown.
1
589
*Department of History and Politics, University of New Brunswick (Saint
John), 100 Tucker Park Road, PO Box 5050, Saint John, New Brunswick
E2L 4L5, Canada
mmccross@unb.ca
An early draft of this article was presented at the Canadian Political Science Association
Annual Conference in Toronto on 31 May 2017. I would like to thank William Biebuyck,
Gerald Kernerman, and the journal's anonymous reviewers for comments and suggestions
on previous versions of this article.
1 Supreme Court of Canada (SCC) Chief Justice Brian Dickson and Justice Gerard La
Forest, quoting Professor Noel Lyon on `the significance' of entrenching
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
The Constitution Act, 1982 ushered in a new chapter but it did not start a new
book. Within the framework of s. 35(1) regard is to be had to the common law
(`what the law has historically accepted') to enable a court to determine what
constitutes an aboriginal right.
2
Separated by roughly a decade, these two statements evince fundamental
tensions at the core of Canadian legal understandings regarding the signific-
ance of section 35(1)
3
and the proper approach to judicial interpretation.
When Indigenous peoples originally secured a breakthrough in 1982 by
inserting their concerns and constitutional perspectives into the political
arena and gaining `recognition' and `affirmation' of their rights in the newly
patriated Canadian constitution ± a protracted process that involved both
domestic and international lobbying and legal actions in the courts of
England
4
± there was hope that Canada had now been firmly placed on a
path towards decolonization and recognition of Indigenous legal orders and
jurisdictions. However, while the Supreme Court of Canada's (SCC) initial
effort in Sparrow to define the scope and meaning of section 35 may have
provided some grounds for optimism concerning the extent to which the
judiciary might feel constrained by past colonial precedents,
5
the concurring
reasons provided by Justice Binnie in Mitchell, on the other hand, seemed to
suggest that the dimensions of Aboriginal rights were primarily to be found
590
`Aboriginal and treaty rights' in section 35(1) of the Canadian Constitution, in Rv.
Sparrow, [1990] 1 SCR 1075, at 1106. The Sparrow case concerned a claim by
Ronald Sparrow, a member of the Musqueam Indian Band, to possess an `existing'
Aboriginal right to fish.
2 SCC Justice Ian Binnie, in Mitchell v. Minister of National Revenue, [2001] 1 SCR
911, at 971. The Mitchell case involved a claim by Michael Mitchell, Grand Chief of
the Mohawk Council of Akwesasne, to possess an Aboriginal right to bring goods
across the Canada/United States border for trade that exempted him from having to
pay customs duties.
3 Section 35(1) of the Constitution Act 1982 reads as follows: `The existing aboriginal
and treaty rights of the aboriginal peoples of Canada are hereby recognized and
affirmed' (Constitution Act, 1982 being Schedule B to the Canada Act 1982 (UK),
c. 11).
4 For a general overview of the political and legal strategies pursued by Indigenous
organizations during this period, see D. Sanders, `The Indian Lobby' in And No One
Cheered: Federalism, Democracy, and the Constitution Act, eds. K. Banting and R.
Simeon (1983); K. Ladner, `An Indigenous Constitutional Paradox: Both Monu-
mental Achievement and Monumental Defeat' in Patriation and Its Consequences:
Constitution Making In Canada, eds. L. Harder and S. Patten (2015).
5 See, M. Murphy, `Culture and the Courts: A New Direction in Canadian Juris-
prudence on Aboriginal Rights?' (2001) 34 Cdn. J. of Political Science 109, at 119±
20; M. McCrossan, `Shifting Judicial Conceptions of `Reconciliation': Geographic
Commitments Underpinning Aboriginal Rights Decisions' (2013) 31 Windsor
Yearbook of Access to Justice 155, at 158±60; M.D. Walters, ```Looking for a knot
in the bulrush'': Reflections on Law, Sovereignty, and Aboriginal Rights' in From
Recognition to Reconciliation: Essays on the Constitutional Entrenchment of
Aboriginal and Treaty Rights, eds. P. Macklem and D. Sanderson (2016) 35.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
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