B. CONSTITUTIONAL LAW: ABORIGINAL AND TREATY RIGHTS AND SECTION 35

The Supreme Court’s framework for s.35 is relevant to the possible steps in analysis, and related evidentiary tests, to determininge the historic and contemporary existence of a legal tradition or customary law. Section 35 declares:

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.
 (3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

The Supreme Court has provided a line of decisions beginning with Sparrow²⁹ and in particular marked by Van der Peet³⁰ and Delgamuukw³¹ (regarding Aboriginal title) to clarify how best to move forward.

The Aboriginal and Treaty Rights Framework: A Summary

Stage 1: Is There an Existing Right?

The Aboriginal claimant holds the burden of proving that there is an existing Aboriginal or treaty right. Proving an Aboriginal right involves three steps:

• Step 1: Determine the precise characterization of the right, which in order to qualify,
  
• Step 2: Determine whether the practice, custom, or tradition upon which the right is based is integral to the distinctive culture of a First Nation or Aboriginal group. The main concern is the centrality of the practice, custom, or tradition to a pre-colonial Aboriginal culture.
  
• Step 3: Determine if the practice, custom, or tradition finds its source in the pre-contact period (for Indian and Inuit rights³²) at the time of sovereignty (for title³³) or at the time of “effective Crown control” (for Métis rights³⁴). This temporal requirement is underpinned by a principle of continuity, which requires a demonstration that the practice, custom, or tradition, whether in original or modified form, has continued to be exercised to the present day.

Stage 2: Is There an Infringement?

The Aboriginal claimant must demonstrate a prima facie infringement of that right by Crown authorized action or legislation. Factors in determining infringement are as follows:

• Whether the right is acknowledged;
• The reasonableness of the nature of the interference;
• Imposition of undue hardship;
• Denial of a preferred means to exercise the right.³⁵

Stage 3: Has the Right Been Extinguished?

If the Aboriginal or treaty right has been shown to have been infringed, then the defendant may choose to argue that the right had been extinguished prior to 1982 and is not protected under s.35. This argument requires proof of Aboriginal consent (e.g., via treaty) or that clear and plain language was used by the Crown consciously to extinguish the specific right so that it was no longer “existing” on April 17, 1982, when s.35 came into force.

Stage 4: Is There a Justification?

Fourth, if the right has not been extinguished by the Crown, then the defendant may seek to prove justification of any infringement, as the Supreme Court of Canada in Sparrow effectively imported the Oakes analysis of s.1 into s.35 even though the latter is outside the Charter.

• Step 1: That it is the least possible infringement and is required to fulfill a compelling and substantial legislative objective consistent with the purpose of s.35 (recognition of prior occupation and reconciliation with Crown sovereignty).
  
• Step 2: That the honour of the Crown and its duty to consult and accommodate the Aboriginal interest involved was upheld in keeping with its fiduciary relationship with Aboriginal peoples.³⁶

Section 35 analysis may apply to s.1.2, as it calls for due regard to be given to “First Nations legal traditions and customary laws.” Incorporating the s.35 Aboriginal and treaty rights analysis would also draw a comparison between s.1.2 and s.35(4), which protects Aboriginal and treaty rights equality for women and men³⁷. The possible incorporation of the principles from both Charter law and Aboriginal and treaty rights contributes to the uniqueness of s.1.2.

Additionally, while interpreting the Constitutional protection of Aboriginal and treaty rights in s.35, the Supreme Court also held in Sparrow that it was important to adopt a purposive approach,³⁸ which resolves doubtful expression in favour of the Indians.³⁹ This interpretive principle applies to both treaties and statutes relating to Indians. If this interpretive rule is given full effect in the proper reading of s.1.2, then it may influence the process of balancing called for.

C. HUMAN RIGHTS LAW

This section sets out in summary form the general framework of analysis within human rights law. Additionally, methods of balancing will be covered along with the scope of the CHRA in considering s.1.2.

The Supreme Court has established several rules to assist in reviewing a tribunal’s interpretation of its enabling legislation.

• The particular knowledge held by a tribunal is expected to influence and form part of the analysis of its enabling legislation.⁴⁰
  
• If a tribunal’s interpretation of its enabling legislation is not irrational or unreasonable, “courts should not lightly interfere with its interpretation and application of its enabling legislation.”⁴¹
  
• Tribunals can, and should, review external statutes to assist in interpreting the tribunal’s enabling legislation.⁴²

The application of these instructions to s.1.2 is not clear. Due to the uniqueness of s.1.2, various constitutional frameworks are potentially at play in the interpretation and application of its provisions. As a result, the emphasis upon legal expertise, rather than any specialized knowledge held by a tribunal, could encourage the courts to play an active role through its judicial review function in interpreting s.1.2.

These stages of legislative interpretation provide a guide for how to approach s.1.2; however, they are not the only principles to consider. The Canadian Human Rights Act is meant to be interpreted in a manner which seeks “out the purpose of the legislation and if more than one reasonable interpretation consistent with that purpose is available, that which is more in conformity with the Charter should prevail.”⁴³ Here again, it is unclear how the potential conflict will be resolved between this and the principle of interpretation set out in the Aboriginal and treaty rights framework, which calls for doubtful expressions to be resolved in favour of the First Nations litigants.

Human rights law also reveals some guidance on the proper application of balancing among divergent factors. Balancing involves two sets of competing interests. In the context of s.1.2, these interests can be contrasted in two ways. Under one interpretation, individual rights as anchored in the CHRA must be balanced with the collective rights of a First Nation as a whole. Here the individual First Nation’s legal traditions and customary laws would be given due regard only for the purpose of understanding the collective right or interest.

Alternatively, the individual right or interest of the complainant can be balanced with the collective rights or interests expressed by the First Nation’s government. In this case, the legal traditions and customary laws would receive due regard for the dual purpose of understanding both the collective and individual interests. Due regard would be given to how the First Nation may have already undertaken a balancing between individual and collective rights and interests.

While true “balancing” of rights is a rare find in case law, several examples are worth examining for how balancing tests have been applied elsewhere. When such analysis is undertaken, it rests upon established principles. For example, when attempting to balance the right to be free from discrimination based on sexual orientation with another person’s right to freedom of religion⁴⁴, the Human Rights Tribunal of Ontario relied upon constitutional values and the provisions of its enabling legislation. The Tribunal found that the right to be free from discrimination based on sexual orientation effectively trumped the right to freedom of religion. The Tribunal, then, was not performing the balancing itself but was applying the balancing that it inferred had already taken place in its enabling legislation. In contrast, s.1.2 calls for balancing but fails to articulate the framework in which that balancing is to occur.

Section 1.2 does not suggest that either individual or collective rights would trump the other. However, an influential balancing test can be found in the context of Charter rights where the Supreme Court of Canada has found that freedom of religion had internal limits. To this end, s.1 of the Charter has been used as a balancing mechanism.⁴⁵ That balancing mechanism is summarized as follows:

The onus is on the respondents to prove that, on a balance of probabilities, the infringement is reasonable and can be demonstrably justified in a free and democratic society. To this end, two requirements must be met. First, the legislative objective being pursued must be sufficiently important to warrant limiting a constitutional right. Next, the means chosen by the state authority must be proportional to the objective in question.⁴⁶

The balancing in s.1 of the Charter, then, affords a protection of the individual’s right against the State’s attempt to infringe that right by placing the onus on the latter if it seeks to uphold its legislation despite its violation of a Charter protected right. The Charter methods have to be respected since the Charter itself is binding in providing an overriding interpretive set of principles for the CHRA.

There has been no official federal documentation about what types of program or service decisions made either by the federal government or by Bands might have constituted prima facie discriminatory actions within the scope of the CHRA. Certainly there would appear to be several remaining areas of statutory discrimination within the Indian Act, but it is far from clear that the CHRA would apply to challenges to these holdovers. While normally these are matters for direct court challenge under the Charter, the CHRA certainly enables the Tribunal to halt the application of discriminatory legislation by federal officials.⁴⁷

Complaints regarding program and service eligibility restrictions are, however, a matter that falls within the normal scope of the CHRA’s mandate. The following might potentially be exposed:

• Health program eligibility restrictions (limited to registered Indians, members of Inuit land claims organizations, and, from 1988 to their registration in 2002, the Innu of Labrador).
• Indian and Northern Affairs Canada (INAC) post-secondary education assistance programs, with eligibility restrictions identical to those of Health Canada.
• Until the early 2000s, access to some reserve-based programs and services (such as social welfare and education) that, until that time, were restricted to status Indians resident on reserve.

Not only is this list fairly short, but also it involves programs that either pre-existed the CHRA or succeeded the passage in 1985 of Bill C-31.

As part of the CHRA, s.1.2 is firmly rooted in human rights law. However, it also draws in elements that fall within the purview of Aboriginal rights. This characteristic serves as a bridge between these sources of law. It is not clear from which side of the bridge the interpretive principles for s.1.2 will be drawn. The nature of complaints and the context of the alleged discrimination will likely influence this.

3.  EVIDENTIARY CONSIDERATION OF FIRST NATIONS LEGAL TRADITIONS AND CUSTOMARY LAWS

In this section, we will look at what legal consideration has been given to identifying legal traditions and customary laws. While it is evident that customary laws have a long history in colonial courts, this history does not reveal much about how these laws were to be received, identified, or interpreted.⁴⁸ The primary framework in considering whether a First Nation’s legal traditions or customary laws must be given “due regard” comes from both Canadian and foreign case law involving Aboriginal and treaty rights, especially that of the Supreme Court of Canada’s suite of decisions from Sparrow through to Sappier and Gray.⁴⁹

The Supreme Court of Canada’s approach to Aboriginal rights issues is set out above. For the purposes of this section, it is essential to note that Aboriginal and treaty rights jurisprudence has found that Aboriginal oral evidence is admissible in courts of law. The Supreme Court has determined that traditional legal rules of evidence should be modified to accommodate oral histories. The Court has focused on ensuring that oral evidence is useful in proving relevant issues, that the evidence is reasonably reliable, and that it is more useful than potentially prejudicial.⁵⁰ The Court has also made it clear that Aboriginal perspectives about treaties with the Crown, their societies, and their laws are vital, as well as written records that may exist.⁵¹

While it is important to be receptive to Aboriginal evidence, outside experts can also be taken into account. When assessing the qualification of experts, local experience is important. This experience can be in the form of mainstream academic qualifications or “local community advisers, ministers of religion, and government officials.”⁵² Of particular relevance is an assessment of witnesses to ensure that the person giving evidence:

• has special knowledge or experience of the customary laws of the community in relation to that matter; or
  
• would be likely to have such knowledge or experience if such laws existed.⁵³

South African jurisprudence sets out several rules for determining the content of customary law, which is given constitutional protection under the post-apartheid Constitution:

1. It is necessary to determine the customary law in the context of community tradition.⁵⁴
   
2. The right of the community to develop their customary law in order to meet the challenges of contemporary society should be respected.⁵⁵
   
3. It should be remembered that customary law regulates people’s lives. This consideration stresses the importance of the balancing tests. Considerations to be taken into account by the Courts include:

… the nature of the law in question, in particular the implications of change for constitutional and other legal rights; the process by which the alleged change has occurred or is occurring; and the vulnerability of parties affected by the law.⁵⁶

The Australian courts, in reference to Native title, have pointed out that there needs to be continuity between those traditional laws that existed at the time of sovereignty and those that are currently asserted. If such laws are abandoned, then so too is a connection to Native title.⁵⁷

While the pre-contact connection might be said to be essential in determining what customary law was, it may not be as essential in determining what customary law currently is.⁵⁸ While pre-contact roots are the most reliable measure of customary law origins, it is not critical. However, prior knowledge of the customary law is necessary “for proving customary law, continuity is not required if the custom was known to have existed at some earlier point” because “no amount of discontinuity can destroy a custom once it is established.”⁵⁹ Several key factors mentioned above help give a fuller indication of how customary law can be received. South African jurisprudence emphasizes that customary laws are meant to respond to the needs of the local community. As local needs change so too will customary law. This recognition provides a path around the problem of continuity with pre-contact customs.⁶⁰

4.

This chapter has provided the foundation for the approach in which s.1.2 should be interpreted. This primary exploration reviewed the legislative history, guiding frameworks of interpretation, and examples of jurisprudence regarding legal traditions and customary laws. As well, Appendix 2 should be referred to for an analysis of the specific phrases used in s.1.2. The possible incorporation of both Charter principles and Aboriginal rights principles reveals the unique nature of s.1.2. Further, the legislative history reveals no clear direction for the interpretation of s.1.2. The lack of clarity means that the CHRT and the courts will have to impute a legislative intent upon Parliament where no clear intent exists. The discussion in this part reveals two possible interpretive models, outlined below.

POTENTIAL IMPLICATIONS OF THE CLAUSE'S PHRASING

The frameworks discussed above reveal two methods for understanding and applying s.1.2. The broad approach relies on existing human rights and Charter law foundations, and the narrow approach relies on the Constitutional law foundations of s.35’s recognition and affirmation of Aboriginal and treaty rights. 

A Broad Interpretation

The non-exclusive listing of what is included within First Nations governments suggests that other entities and their actions might fall within the ambit of the clause. This, along with the phrasing of the clause, reinforces a possible broad interpretation such that any First Nation government facing a complaint, whether or not it has to do with a service formerly exempted under s.67, can invoke the requirement to give “due regard.” This approach includes any Aboriginal governing body that falls within federal jurisdiction but that may not be operating under the Indian Act (e.g., Westbank First Nation, the governments operating under the Cree-Naskapi (of Quebec) Act, etc.) to whom the CHRA has always fully applied unless modified specifically by legislation (as with Westbank).

Similarly, a broad interpretation would suggest that the intention of the clause was to give due regard to both “First Nations legal traditions and customary laws” and to “the balancing of individual rights and interests against collective rights and interests” (i.e., requiring a balancing of collective interests separate from any particular customary law).

This broad interpretation takes individual rights as paramount and narrowly construes exemptions. To the extent that it is an individual interest, and due to it being specifically mentioned in s.1.2, the principle of gender equality would certainly be given primary consideration over collective interests. Such an approach is consistent with s.1.2 being an interpretive provision rather than a new source of rights.

The broad view might interpret s.1.2 as a standalone justification similar to the limited jurisprudence on s.25 of the Charter. Here, s.1.2 would operate as a defence against a charge of discrimination without necessary reference to other justificatory provisions of the CHRA.

Finally, a broad interpretation might suggest, given the more specific language of s.3, that the clause is to take effect immediately for First Nation governments in relation to complaints under the Act, except for those acts or omissions “made in the exercise of powers or the performance of duties and functions conferred or imposed by or under that Act.” Under such an interpretation, s.1.2 would have to give “due regard” immediately in the case of a complaint against a First Nation government (as broadly defined) concerning all matters that were not formerly exempt under s.67.

A Narrow Interpretation

Alternatively, the principle of interpreting exemptions to human rights statutes narrowly would favour the more rigorous tests of s.35 Aboriginal and treaty rights law over the flexibility of human rights and Charter law.

Under the narrow interpretation, “First Nation” refers to governments or entities formerly covered under the s.67 exemption (i.e., only those specifically falling under the Indian Act). It also suggests that “due regard” is to be given only in the context of formerly exempt activities and not generally to any act of such governments.

A narrow view also suggests that instead of giving “due regard” to both traditions and customs, as well as to the balancing of individual as against collective rights and interests, the intent was only to give due regard to the balancing of collective and individual rights and interests that occurs within a First Nation’s legal traditions and customary laws.

This narrow interpretation of s.1.2 might also engage a test similar to that found in s.35 case law. Where a contested right is found to exist, the existing mechanisms found in s.35 could serve as a guide to determine the validity and characterization of the legal tradition or customary law.

This narrower view would also suggest that “due regard” does not have to be given in any case until the expiry of the three-year transition period.

CONCLUSION

There is nothing specific in case law or in various legal frameworks that dictates which of the two basic approaches is correct—Human rights and Charter law, or Aboriginal and treaty rights law—or whether some elements of both are intended.

A broader interpretive approach of Bill C-21 might not be what legislators felt was the intention, if only because s.1.2 was not proposed by the government and was added on opposition motions specifically to modify the repeal of s.67, which only had an effect on those operating under the Indian Act. Yet earlier draft interpretation clauses, including that of Bill C-7 and the version proposed by the CHRA Review Panel, would have applied to all actions by all Aboriginal governmental organizations.

Given the legacy of debate, it might be considered strange for the CHRA to afford only some, and not all First Nation governments, the ability to raise legal traditions, customary laws, and collective interests in response to an alleged discriminatory act, especially where most of those excluded (e.g., Nisga’a Lisims) are exercising self-government specifically protected as treaty rights under s.35.

The foregoing analysis illustrates that the legal literature is only one part of the equation in answering the key questions in this study. Case law and jurisprudence do not provide a complete picture and we need to refer to the expertise of other disciplines, as discussed in the next part.

PART II:  HISTORICAL AND SOCIAL SCIENCE ASSESSMENT

INTRODUCTION

This part of the study looks to the historical and social science literature for guidance on how notions of individual and collective rights are framed and how they relate to First Nations legal traditions and customary laws. We also look at some practical solutions, from Canada, Australia, and elsewhere, and how these fit within the broader conceptual frameworks examining the relationship between human rights law and First Nations legal traditions and customary laws.

The main challenge is to address the several themes or topics on which guidance from the historical and social science literature may be useful:

• The scope and meaning of legal traditions and customary laws;
• The balancing of collective and individual rights within legal traditions or customary laws;
• Who to turn to in arbitrating contested legal traditions and customary laws.
• The crucial issue of membership determination and related restrictions in the provision of goods and services by First Nations governments; and
• The emergent issue of self-government and alternative justice systems.

The examination of these topics frames this part of our analysis, as does the reality that customary law refers to the basic rules and procedures governing the everyday life of persons in a community.⁶¹ Customary law is also often represented as a higher form of imperative: something more than mere practice or “what people are used to” and closer to what people hold as moral and obligatory.⁶²

Yet in examining these matters, we must address, first, some boundary issues, if only to map out how the guiding topics we suggest become foremost in a proper analysis of the subject. This merits discussion of the challenge in establishing reliable boundaries for what we have been asked to assess, including matters that generally might fall beyond a consideration of what could be argued before the Canadian Human Rights Commission or the Tribunal.

BOUNDARIES

As with the legal literature, the social sciences—anthropology, sociology, political science, history—have given considerable attention to the “outer boundaries” of Aboriginal customary law; namely, those practices that appear notoriously in breach of either non-Aboriginal cultural norms or of formal statute law. A Canadian example concerns a reluctant spirit dancer, Thomas, who “was denied food, forced to walk naked in a creek and carried by a group of men who bit him and dug their fingers into his stomach.”⁶³

Thomas filed suit, and the trial court judge ruled in his favour, noting that even if the spirit dance ceremony was a valid tradition, “those aspects of it which were contrary to English common law, such as the use of force, assault, battery, and wrongful imprisonment, did not survive the introduction of law in British Columbia.”⁶⁴ The court found that even if the Coast Salish Spirit Dance ceremony was protected under s.35(1) of the Constitution Act, 1982 as an Aboriginal right, the forced seizure involved was a breach of constitutionally protected and statute-based human rights law, if not that of the Criminal Code.

The Australian literature has been even more preoccupied with what many might regard as unusual encroachments on individual rights, notably the reprisal practice of “spearing” and the practice of under-age marriage.⁶⁵ International human rights literature has also been concerned with cultural practices at or over the edge of broad transnational norms of acceptance, whether customary law or not, particularly where such practices inflict harm on women.⁶⁶

These cases are not cited to suggest that Aboriginal legal traditions or customary laws are always, necessarily, or even routinely adverse to the perceived universal norms of human rights or non-Aboriginal statute law. In most cases, such traditions and laws undoubtedly incorporate and indeed protect and advance individual rights, as well as those of the collectivity involved.⁶⁷ The cited cases do signify, however, that the social sciences, as with the legal sources, often focus on the question of boundaries more than they deal with the detailed, day-to-day substance of what Aboriginal legal traditions and customary laws actually entail. This lack of attention to the “everyday” is commonplace in the social science literature. The absence of a systematic and comparative analysis of First Nations legal traditions and customary laws poses a problem: the important might be disregarded in favour of the notorious.

Aside from these boundary issues, not all aspects of Aboriginal tradition or law are of concern in this study. The Canadian Human Rights Act deals with discrimination against individuals in a limited set of federally regulated circumstances the provision of goods and services, accommodation, and employment. It does not have the same broad scope as the Canadian Charter of Rights and Freedoms. Similarly, the CHRA is not concerned with directly protecting or implementing Aboriginal and treaty rights—the topic of s.35, in Part II of the Constitution Act, 1982.

Many First Nations traditions and laws will not impact how the CHRA, given its narrower scope, is implemented in relation to First Nations governments. Nevertheless, s.1.2 of the CHRA (see Appendix 1 for a full version of the amendments) brings into play a requirement for what has to date been a matter reserved for exclusively constitutional treatment, the interpretation of Aboriginal customs and traditions. As noted in Part I, there are some pre-1982 interpretations of these matters by the courts, drawing mostly upon English common law principles. However, the main reference to Aboriginal customary law and legal traditions is now to be found in s.35 of the Constitution Act, 1982, as well as in s.25 of the Canadian Charter of Rights and Freedoms. Both these provisions, recognized and affirmed as “the supreme law of the land,” uphold Aboriginal rights, which presumably include legal traditions and customary laws.

No constitutional provision is absolute or without balancing considerations against other, similarly protected rights.⁶⁸ As indicated in Part I, balancing may be justified in accordance with different principles advanced by three distinct legal frameworks. However, these frameworks have themselves drawn upon historical and the social science literature for instruction. The tools provided by the social and historical sciences should therefore be consulted. In addition, it is important to identify if and when “legal traditions and customary laws” are fixed or evolving.

The overlay of non-First Nations laws, policies, and institutions has resulted in a challenged authenticity for First Nations legal traditions and customary laws. Claims of “authenticity” for collective rights or interests therefore need to be assessed. First Nations practices may not always be held as a valid basis for discrimination against individual rights or interests. Procedures or techniques to distinguish between what is “traditional” and what is derivative of introduced forms need to be considered.

The social science and historical literature does offer guidance in considering the nature and meaning of legal traditions and customary laws, what might “balance” individual and collective rights and interests, and where to turn in assessing the authenticity of First Nations legal traditions and customary laws.

Footnotes

1. R. v. Sparrow

• R. v. Van der Peet

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

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

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

• R. v. Powley, [2003] 2 S.C.R. 207.

• R. v. Sparrow, [1990] 1 S.C.R. 1075.

• See, Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 S.C.C. 73; and Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550, 2004 S.C.C. 74.

• Section 35(4) reads: “Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.”

• R. v. Sparrow, [1990] 1 S.C.R. 1075 at para. 56.

• Ibid at para. 57 where the court cites Nowegijick v. The Queen, [1983] 1 S.C.R. 29, at p. 36: “... treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians.”

• Council of Canadians with Disabilities v. Via Rail Canada Inc., [2007] 1 S.C.R. 650 at para. 98.

• Ibid. at para. 104.

• Ibid. at para. 114.

• Canada (Attorney-General) v. Mossop, [1993] S.C.J. No. 20 (Q.L.) per. Lamer C.J, Sopinka and Iacobucci JJ. at para. 36. Lamer C.J., at para. 37, also clarified that “absent a Charter challenge, the Charter cannot be used as an interpretative tool to defeat the purpose of the legislation or to give the legislation an effect Parliament clearly intended it not to have.”

• Heinz v. Christian Horizons, 2008 H.R.T.O. 22 (Human Rts. Tribunal of Ont.).

• V.M. v. British Columbia (The Director of Child, Family and Community Services) 2008 B.C.S.C. 449 (CanLII) at para. 88 where the Court cites the S.C.C. in B.(R.) at p. 384–85: “In my view, it appears sounder to leave to the state the burden of justifying the restrictions it has chosen. Any ambiguity or hesitation should be resolved in favour of individual rights. Not only is this consistent with the broad and liberal interpretation of rights favoured by this Court, but s. 1 is a much more flexible tool with which to balance competing rights than s. 2(a).”

• Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1 S.C.R. 256, at para. 43.

• On the powers of statutory tribunals, see Drunken v. Canada (Employment and Immigration Commission) [1989] 2 F.C. 24 (F.C.A.), in which the Court held the Tribunal’s powers to include ordering the federal government to cease applying a discriminatory provision. The Tribunal has applied this power in subsequent cases involving federal employment insurance legislation; see McAllister-Windsor v. Canada, (2001) 40 C.H.R.R. D/48 (C.H.R.T.).

• See generally, Mark D. Walters (1999), “The ‘Golden Thread’ of Continuity: Aboriginal Customs at Common Law and Under the Constitution Act, 1982,” McGill Law Journal 44, 711–752; Mark D. Walters (1995), “Mohegan Indians v. Connecticut (1705–1773) and the Legal Status of Aboriginal Customary Laws and Government in British North America,” Osgoode Hall Law Journal 33, 785; Peter W. Hutchins with Carol Hilling and David Schulze (1995), “The Aboriginal Right to Self-Government and the Canadian Constitution: The Ghost in the Machine,” U.B.C. Law Review 29, 251; and Lucy Bell (2006), “Kwakwaka’wakw Laws and Perspectives Regarding Property,” Indigenous Law Journal 5: 119–159.

• R. v. Sappier; R. v. Gray [2006] 2 S.C.R. 686.

• Mitchell v. Canada (M.N.R.), [2001] 1 S.C.R. 911 at para. 30.

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

• The Law Reform Commission, Report 31, The Recognition of Aboriginal Customary Laws, Vol. 1 Australian Govt. Publishing Service, Canberra, 1986 at 470.

• Ibid. at 478.

• Shilubana and others v. Nwamitwa [2008] Z.A.C.C. 9 at para. 44: “Customary law is a body of rules and norms that has developed over the centuries. An enquiry into the position under customary law will therefore invariably involve a consideration of the past practice of the community. Such a consideration also focuses the enquiry on customary law in its own setting rather than in terms of the common law paradigm, …courts embarking on this leg of the enquiry must be cautious of historical records, because of the distorting tendency of older authorities to view customary law through legal conceptions foreign to it.”

• Ibid. at para. 45: “As has been repeatedly emphasised by this and other courts, customary law is by its nature a constantly evolving system. Under pre-democratic colonial and apartheid regimes, this development was frustrated and customary law stagnated. This stagnation should not continue, and the free development by communities of their own laws to meet the needs of a rapidly changing society must be respected and facilitated.” Also see, The Law Reform Commission, Report 31, The Recognition of Aboriginal Customary Laws, Vol. 1 Australian Govt. Publishing Service, Canberra, 1986 at 91.

• Ibid. at para. 47.

• Mabo v. Queensland, [1992] 5 C.N.L.R. 1 (High Ct of Aust.) (Q.L.) at note 127 per Brennan J.: “when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of Native title has disappeared. A Native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition.”

• Mark Walters (1998–1999), “‘According to the old customs of our nation’: Aboriginal Self-Government on the Credit River Mississauga Reserve, 1826–1847,” Ottawa Law Review 30(1) (Q.L.) at para. 17 expresses the link between a community’s way of life and the laws that governed that community as follows: “To summarize, it is clear that the general characteristics of the pre-contact Ojibway system of law and government were inextricably bound up with the general characteristics of pre-contact Ojibway society itself. The normative foundations of the system of usages and customs that regulated Ojibway life derived from, first, the unique manner in which Ojibway peoples harvested natural resources within their territories i.e., the economic basis of Ojibway society and, second, the spiritual relationship that existed between Ojibway peoples and the natural world around them i.e., the spiritual/religious basis of Ojibway society.”

• Albert Peeling and Paul L.A.H. Chartrand (2004), “Sovereignty, Liberty, and the Legal Order of the ‘Freemen’ (Otipahemsu’uk): Towards a Constitutional Theory of Métis Self-Government,” Saskatchewan Law Review 67, 339 (Q.L.) at para. 9.

• Ibid. at para. 9 where they note: “Continuity is not required if there is otherwise strong proof of a custom, and discontinuity can be explained by evidence that practice of the custom was impossible.”

• For major anthropological treatments of the topic, see Bronislaw Malinowski (1932), Crime and Custom in Savage Society, London: Routledge and Kegan Paul; and Max Gluckman (1997), “Concepts in the Comparative Study of Tribal Law,” in Laura Nader (Ed.), Law in Culture and Society, Berkley: University of California Press: 349–373. For a sociological treatment, see Stanley Diamond (1971), “The Rule of Law Versus the Order of Custom,” Social Research 38(1): 42–72. For customary law and judicial recognition in Canada, see Bradford W. Morse (1980), “Indian and Inuit Family Law and the Canadian Legal System,” American Indian Law Review 8: 199–257. For an Aboriginal perspective on First Nations history, see the excellent book For an Amerindian Autohistory by Georges E. Sioui (Montreal and Kingston: McGill-Queen’s University Press, 1992).

• A. L. Goodhart cited in Kenneth Maddock (1984), “Aboriginal Customary Law,” in Peter Hankes and B. Keon-Cohen (Eds.), Aborigines and the Law, North Sydney: Allen and Unwin: 217.

• Cited in Patrick Macklem (2001), Indigenous Difference and the Constitution of Canada, Toronto: University of Toronto Press: 49.

• Thomas v. Norris CanLII 354, [1992] B.C.S.C.

• See Megan Davis and H. McGlade (2004), “International Human rights law and the recognition of Aboriginal customary law,” Background Paper #10, Law Reform Commission of Western Australia.

• On violations of gender equality—involving genital mutilation, rape, etc.—see Sally E. Merry “Human Rights and Transnational Culture: Regulating Gender Violence through Global Law” (2006) 44 Osgoode Hall Law Journal. On discrimination against Indian women in Canada, see Mary Ellen Turpel (1989), “Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies, Cultural Differences,” The Canadian Human Rights Yearbook 3; and Teresa Nahanee (1993), “Dancing with a Gorilla: Aboriginal Women, Justice and the Charter,” Royal Commission on Aboriginal Peoples, Aboriginal Peoples and the Criminal Justice System, Ottawa: Supply and Services Canada. In the Australian Aboriginal context, in which customary law traditions are more clearly assessed, see Catherine Wohlan (2005), “Aboriginal Women’s interests in customary law recognition,” Background Paper #13, Law Reform Commission of Western Australia.

• This is the general assumption, and finding, of comparative legal scholars. See for example Christoph Eberhard (2001), “Towards an Intercultural Legal Theory: The Dialogical Challenge,” Social and Legal Studies 10(2): 171. For the view that so-called “universal” norms such as those in the Charter of Rights displace already extant individual rights protection norms in Indigenous cultures, see Menno Boldt and J. Anthony Long (1984), “Tribal Philosophies and the Canadian Charter of Rights and Freedoms,” Ethnic and Racial Studies 74(4): 478–493.

• The Supreme Court of Canada has emphasized this point repeatedly, such as in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 and, in relation to the Charter, Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203.