Indigenous Constitutionalism and Dispute Resolution Outside the Courts: An Invitation

DOI10.1177/0067205X20955069
AuthorKaren Drake
Date01 December 2020
Publication Date01 December 2020
SubjectArticles
FLR955069 570..586 Article
Federal Law Review
2020, Vol. 48(4) 570–585
Indigenous Constitutionalism
ª The Author(s) 2020
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and Dispute Resolution Outside
sagepub.com/journals-permissions
DOI: 10.1177/0067205X20955069
the Courts: An Invitation
journals.sagepub.com/home/flr
Karen Drake*
Abstract
The Supreme Court of Canada’s jurisprudence on constitutionally protected Aboriginal rights filters
Indigenous laws through the lens of liberal constitutionalism, resulting in distortions of Indigenous
law. To overcome this constitutional capture, this article advocates for an institution that facilitates
dispute resolution between Canadian governments and Indigenous peoples grounded in Indigenous
constitutionalism. To avoid a pan-Indigenous approach, this article focuses on Anishinaabe con-
stitutionalism as one example of Indigenous constitutionalism. It highlights points of contrast
between Anishinaabe constitutionalism’s and liberalism’s foundational norms and dispute resolution
procedures. This article argues that a hybrid institution—combining features of both liberalism and
Indigenous constitutionalism—would merely reproduce the constitutional capture of Aboriginal
rights jurisprudence. It also illustrates how the procedures of talking circles—which are one means of
giving effect to persuasive compliance—promote the voice of all involved. Finally, this article argues
that from the perspective of Anishinaabe constitutionalism, the non-binding nature of the processes
offered by the new institution would be a strength, not a drawback.
I Introduction
From one perspective, the story of constitutionally protected Indigenous rights in Canada has been
one of progress.1 Section 35(1) of the Constitution Act, 19822 recognizes and affirms the Abori-
ginal rights (including Aboriginal title) and treaty rights of the Aboriginal peoples of Canada.3
1. Gordon Christie, Canadian Law and Indigenous Self-Determination (University of Toronto Press, 2019) 17, 130
(‘Canadian Law’).
2. Canada Act 1982 (UK) c 11, sch 3 (‘Constitution Act 1982’).
3. I use the term ‘Indigenous’ to cohere with preferences for this term. I use the term ‘Aboriginal’ when referring to rights
or peoples described in s 35.
* Bill S-3 member of Waabigon Saaga’igan Anishinaabeg (Wabigoon Lake Ojibway Nation), Associate Professor and
Associate Dean (Students), Osgoode Hall Law School at York University. I am very grateful to A. Christian Airhart
and Gabrielle Pellerin for their excellent research assistance, and to those in attendance at the workshop for this special
issue, to the anonymous reviewers, and to the journal’s editors for their valuable suggestions and improvements. Any
errors are my responsibility alone. The author may be contacted at kdrake@osgoode.yorku.ca.

Drake
571
A series of court victories mean that, as Indigenous peoples, we have greater ability to engage in
our cultural practices,4 to use our territories5 and to exercise our rights protected by our treaties
with the Crown.6 But from another perspective, the story is one of disappointment and distortions.
Despite the promise of ‘reconciliation’,7 the legal tests developed by the courts protect frozen
rights instead of self-determination,8 and Aboriginal title is closer to a property interest in land than
a power to exercise jurisdiction over territory.9
The first perspective is that of liberal constitutionalism; the second perspective is that of
Indigenous constitutionalism.10 I use the term ‘constitutionalism’ not in the narrow sense of a
political system that places limits on governmental powers but in the broader sense articulated by
Aaron Mills, who uses this term to designate a framework for how a people constitutes itself as a
political community.11 Mills posits a tree model of legality, whose explanatory force applies
equally to Indigenous and non-Indigenous legal orders.12 The roots of the tree represent a society’s
lifeworld or creation story, including its ontology and epistemology.13 Moving up, the trunk
represents a society’s constitutional order or its practice of governance that enables collective
action, as just mentioned.14 Moving up further, the branches represent legal traditions in the sense
of the processes by which the society generates, interprets, modifies and destroys its laws.15
Finally, the leaves represent a society’s laws.16 The key to this model is that each level empowers
and constrains the one above but does not definitively determine it.17 The roots of a birch tree can
only produce a birch trunk but not, say, a pine trunk. And yet, birch trunks vary greatly.18 The tree
model of legality cautions against attempts to filter Indigenous legal orders through the lens of
liberal constitutionalism.19 Birch leaves can’t be removed from a birch tree and pasted onto a pine
tree; they won’t grow. Likewise, attempts to implement Indigenous laws within the political and
legal architecture of a liberal state result in incoherence and structural violence to Indigenous law,
4. R v Powley [2003] 2 SCR 207.
5. Tsilhqot’in Nation v British Columbia [2014] 2 SCR 257 (‘Tsilhqot’in Nation’).
6. R v Marshall [1999] 3 SCR 456.
7. R v Van der Peet [1996] 2 SCR 507 [31] (‘Van der Peet’).
8. Ibid; R v Pamajewon [1996] 2 SCR 821.
9. Tsilhqot’in Nation (n 5) [149]–[151]; Gordon Christie, ‘Who Makes Decisions over Aboriginal Title Lands?’ (2015)
48(3) University of British Columbia Law Review 743. See especially 754.
10. Christie, Canadian Law (n 1) 130.
11. Aaron Mills, ‘The Lifeworlds of Law: On Revitalizing Indigenous Legal Orders Today’ (2016) 61(4) McGill Law
Journal 847, 855 n 14 (‘Lifeworlds’).
12. Aaron James (Waabishki Ma’iingan) Mills, Miinigowiziwin: All That Has Been Given for Living Well Together: One
Vision of Anishinaabe Constitutionalism (PhD Dissertation, Faculty of Law, University of Victoria, 22 July 2019) 39
(‘Miinigowiziwin’).
13. Mills, ‘Lifeworlds’ (n 11) 862; Mills, Miinigowiziwin (n 12) 41–3.
14. Mills, Miinigowiziwin (n 12) 41–3.
15. Ibid 45.
16. Ibid 46.
17. Ibid 40–1.
18. Ibid 41.
19. Ibid 8, (n 45) 59–62. See also Gordon Christie, ‘Culture, Self-Determination and Colonialism: Issues Around the
Revitalization of Indigenous Legal Traditions’ (2007) 6(1) Indigenous Law Journal 13 (‘Culture’); Sara J Mainville,
‘Treaty Councils and Mutual Reconciliation Under Section 35’ (2007) 6(1) Indigenous Law Journal 141, 173, 177
(‘Treaty Councils’) (advocating that Treaty Three should be understood through the lens of the sacred laws of the
Anishinaabeg, and not through the lens of Canadian institutions).

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Federal Law Review 48(4)
which Mills describes as constitutional capture20 and which Gordon Christie describes as a liberal
or colonial snare.21 As Christie demonstrates, the Supreme Court of Canada’s s 35(1) jurisprudence
is one immense liberal snare.22 From this perspective, the Court’s s 35(1) jurisprudence is not the
rejection of colonialism but rather the perfection of it.23
The tree model is not an instance of legal pluralism. While legal pluralism would be an
improvement over the current s 35 jurisprudence, it still perpetuates constitutional capture.24 Legal
pluralism typically gives effect to Indigenous legal orders only at the level of the leaves (laws) or at
best, at the levels of the leaves and the branches (legal processes).25 To avoid constitutional
capture, we need to give effect to Indigenous legal orders at all four levels. If we were to
accomplish that, we would no longer be dealing with more than one legal order operating under
the aegis of a single constitution; in other words, we would no longer be dealing with legal
pluralism. Instead, we would be dealing with separate nations in a relationship with each other.
I propose that disputes about the operation of Indigenous laws could be addressed through a
forum that facilitates dispute resolution grounded in Indigenous constitutionalism. The forum
would provide an alternative to s 35 litigation and replace both the Comprehensive Claims pro-
cess26 and the federal government’s Inherent Rights Policy (and the accompanying process for
negotiating self-government agreements).27 It could also serve as an alternative to the Specific
Claims Tribunal.28 These existing dispute resolution mechanisms employ concepts and processes
‘drawn solely from the dominant settler legal system’29 and thus exhibit the same constitutional
capture produced by the s 35 jurisprudence.30 The benefits of the new forum would include
avoiding not only constitutional capture but also the drawbacks of litigation. The inefficiencies
and tremendous costs (in terms of money, time, resources and uncertainty) of litigation of
20. Mills, Miinigowiziwin (n 12) 8, 28, 36.
21. Christie, ‘Culture’ (n 19) 14–18, cited in Mills, Miinigowiziwin (n 12) 36.
22. Christie, ‘Culture’ (n 19) 16–17; Christie, Canadian Law (n 1) chs 7–8.
23. Gordon Christie, ‘Indigenous Legal Orders, Canadian Law and UNDRIP’ in UNDRIP Implementation: Braiding
International, Domestic and Indigenous Laws (Centre for International Governance Innovation, 2017) 48, 49.
24. Mills, Miinigowiziwin (n 12) 36.
25. Ibid 35–6.
26. ‘Comprehensive Claims’, Government of Canada (Web Page, 13 July 2015) www.rcaanc-cirnac.gc.ca/eng/
1100100030577/1551196153650>.
27. ‘The Government of Canada’s Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal
Self-Government’, Government of Canada (Web Page, 15 September 2010) 1100100031843/1539869205136>.
28. ‘Specific Claims Tribunal Canada’, Specific Claims Tribunal Canada (Web Page, 12 May 2020) ...

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