3. CONTESTED TRADITIONS: WHO TO TURN TO?

Who are the proper arbiters of First Nations legal traditions or customary laws? The socio-historical literature is no less vocal about this than the legal literature and litigation record. What is known is that an absence of an appropriate arbiter for what is accepted tradition or custom can severely undermine any effort at reconciliation.

As a general rule, we should be wary about the claims of elite members of a group to speak authoritatively about any group’s ‘traditions’ ... debates over human rights are often debates over who within the community should have the authority to influence or determine the interpretation of the community’s traditions and culture. When individual members of the group demand their ‘human rights’, they often do so in order to be able to participate in the community’s process of interpreting its traditions.¹⁰²

The question of to whom third parties can turn to in order to receive guidance about what is a valid First Nations legal tradition or customary law is enormously important. Securing the opinions or perspectives of knowledgeable experts from within the affected community and culture may be the only reliable technique for determining whether and how individual rights or interests have been or may be accommodated. Complications may arise, however, if experts are uncertain or unwilling to answer to an outside agency.

The discussion in the social sciences about tradition and culture provides some direction on this issue, but not a great deal of certainty. The validity of a particular customary law expression may in fact not turn on it being rooted in practices that are from “time immemorial.” It might rely instead upon the attestation of an acknowledged speaker of the truth about current practices, norms, laws, and traditions.

3.1. DETERMINATION OF CONTEMPORARY VALIDITY OF CUSTOM AND LAW

Napoleon and McDonnell suggest that the discovery process involved in determining genuine tradition and law is essentially an internal one, even if mediated by outside agencies.¹⁰³ Such an internal process is not amenable to outside determination.

Several examples suggest how contested traditions have been approached by third parties in order to determine contemporary—as opposed to pre-established—custom and legal practice. One concerned the case of an elder contesting the decision of an election committee confirming a female candidate’s eligibility to run, asserting that it was inconsistent with tradition, which precluded female Chiefs.¹⁰⁴ In that case, the court examined the internal procedures of the election committee and, finding no procedural breach, ruled that the committee itself was validly expressing evolving custom.

A second case from Australia involved a Native Title Tribunal hearing concerning a small family group’s rights to Aboriginal usage of a territory of mining importance. The claim was contested by the regional affiliate of a Commonwealth-recognized Aboriginal organization. The presiding judge relied upon a “notorious” elder to resolve the issue and he affirmed the applicant’s identity as Aboriginal even though the organization questioned their entitlement.¹⁰⁵ In this case, the Tribunal avoided the use of third-party experts or tests of authenticity and relied instead on an arbiter from within the community, but one unaligned with state-sponsored institutions.

In short, this approach involves asking, “What is accepted as normative now, within the relevant community concerned”? The answer is to request the opinion of leaders or elders within the community uninvolved with political life.

3.2. ASSESSING AUTHENTICITY AND CONNECTION TO PRE-ESTABLISHED TRADITION

Another approach to determining authenticity utilizes tests similar to those adopted by the Courts in relation to claimed Aboriginal and Treaty rights. Contemporary expressions of legal traditions and customary laws must be fundamentally grounded in the distinctive customs, traditions, or culture of the community and must have continuity with practices that connect the current customs to a time when the culture was not distorted by outside influence.¹⁰⁶ This approach engages a deliberative role for outside agencies in assessing the weight of evidence that a claimed custom or tradition is in fact valid, not so much in relation to its objectives, though this may weigh on the matter, but rather from the evidence of connection of the claimed current practice to a valid pre-cursor.

A notorious example of this approach to determining authenticity occurred in the mid-1990s in Australia over a proposed bridge development that one Aboriginal women’s group claimed would breach sacred secret traditions, an assertion vigorously challenged by another Aboriginal women’s group. A Royal Commission and a judicial inquiry ensued and, as Tonkinson notes in his review of the issues, the only sure victim was the credibility of anthropology as a worthy interlocutor between Aboriginal and non-Aboriginal worldviews and concepts of law and morality.¹⁰⁷ In this instance, the government and the courts first deferred to those they perceived as “ready-made” arbiters, only to find them contested by equally assertive candidates for the position. This is not a case that should be regarded as exceptional since the degree to which fragmentation of traditional forms of decision-making also erodes the certainty with which outsiders might identify the proper arbiters of tradition or law in a First Nation community.

Another matter of claimed “tradition” conflicting with human rights norms is discussed by Wholan, who cites the complaint by an Aboriginal woman that there are “now three types of violence in Aboriginal society—alcoholic violence, traditional violence, and bullshit traditional violence.”¹⁰⁸ By extension, this allegation points to the potential for customary practice in a community—whether law-like or not—to be fundamentally adverse to broader norms of human rights law. This matter may not be amenable to community-based reconciliation via accepted community authorities.

McDonnell raises another challenge and area of potential contestation within an Aboriginal or First Nations community the decision to codify customary law and tradition. Regardless of the motive for such efforts—whether to oust non-traditional influences or to regularize power relations in the community that may have the effect of ousting external Canadian law—s.1.2 offers any complainant, as with any respondent, the opportunity to reinforce their own expressions of what is valid in cultural traditions and customary laws. Whether such codifications should be regarded as valid adaptations of pre-established traditions has been contested, but unless clear violations of equally pre-established individual interests or rights are involved, such an initiative should not be rejected outright merely for having been subject to codification.¹⁰⁹

4. MEMBERSHIP

Cases involving exclusion from access to programs, services, and entitlements based on First Nations membership transcend the two main approaches suggested for determining the authenticity or validity, of claimed tradition or customary law. This is particularly the case in relation to the influence of the Indian Act regime. Discussed at greater length in Part III of this paper, the topic merits some mention here. Precisely because of the Indian Act’s intrusions—widely regarded as interfering with pre-existing customary law and tradition—any assertion by an Indian Act-based authority about its entitlement to control the content and meaning of customary law may well be exposed to question. Certainly membership rules and residence entitlements are likely to be tested in this fashion. So too are asserted customary laws or traditions regarding descent of property, adoption, and local governance, including voting rules under the provision in the Indian Act referring to “the custom of the band.”¹¹⁰

In cases where inclusion of a claimant within a First Nation’s membership is in question, the response must not distort or alter actual legal tradition or customary law while attempting a balance of collective and individual rights. As suggested by Napoleon, pursuing an “internal dialogue” and reconciliation approach might involve a “goals-based” assessment. This can be done by consulting relevant community interests to determine what is regarded as a valid legal tradition or customary law and how best to give it modern expression without suppressing interests or rights based on non-traditional practices.¹¹¹

Alternatively, authenticity issues in relation to such boundary constructs as membership might be managed in the same way as alleged s.35 rights are determined (most often arising in conflicts between state-based collective jurisdiction and Aboriginal collective interests in lands and resources). This second approach involves a different and more difficult balance one requiring an elaboration of evidentiary and “balance of probability” tests. Justifications would be required, whether for a custom-based intrusion into the realm of individual rights protection or, conversely, for the intrusion of individual rights into the realm of constitutionally protected Aboriginal rights. The problem with this approach, of course, is that it inevitably involves an external determination of what many authorities, and many First Nations leaders, regard as an internal matter.

First Nations have a long and rich history of law-making and law-applying in relation to membership/kinship and “belonging,” but this has most often been in an oral context in which the determination of what is lawful or moral or good rests in the agents of cultural transmission of knowledge—elders, faith keepers, medicine people, and so on. In some cases, traditional elders are the obvious choice as arbiters, though care is needed to ensure that the determination of which elders are engaged in the process of discovering tradition reflects the relevant custom or tradition (i.e., expertise) and avoids any presumption of bias.¹¹²

5. SELF-GOVERNMENT AND ALTERNATIVE JUSTICE SYSTEMS

The incorporation of Aboriginal customary law within the interpretive mandate of the Canadian Human Rights Act necessarily raises the question of self-government with respect to the implementation, interpretation, and enforcement of such laws. While self-government rights have, since Pamajewon¹¹³, been held to be topic-specific, Delamuukw held that self-government in relation to matters not covered by federal or provincial law and touching on the preservation of Aboriginal social, cultural, spiritual, or political identity is worthy of deference.¹¹⁴

There is little guidance from the social science or historical literature about how such deference might best be achieved, particularly with respect to how a specific right of self-government might interact with the interpretation of Bill C-21’s “due regard” provision. In the majority of cases involving Indian Act Band Councils or their delegated institutions, the issue of the inherent right of self-government may not arise. However, in some cases, traditional councils or non-statutory bodies might claim authority regarding particular legal traditions or customary practices. Where non-First Nations people are involved as complainants, the question of self-government might not be at issue. Where, however, a complainant is connected to the community but may not enjoy equal entitlements due to the Indian Act, Band membership rules, or discrimination, the issue of s.35 rights, and self-government, might be raised, whether by the First Nation government concerned or by a traditional council or body asserting the existence of a tradition or custom.

Few First Nations authorities have to date asserted self-government rights as a basis for the validity of a particular legal tradition or customary law against a competing individual right or interest, whether codified or simply made subject to a specific interpretation procedure (for example, an elders’ appeal committee). However, it is likely that such assertions will emerge, particularly as a result of s.1.2. Of course, there are also newly recognized First Nations authorities under modern treaties that have an unquestioned right of self-government—for example, the Nisga’a Lisims Government and the Tlicho Government—and each of these may exercise jurisdictions in relation to the protection and development of cultural practices that might prevail against a statutory protection of non-discrimination.¹¹⁵

Also worthy of consideration, and further study, are the suggestions of the Supreme Court to examine alternative dispute resolution in reconciling state laws and jurisdictions with Aboriginal rights and to conduct consultations to ensure minimal impairment of rights.¹¹⁶ In addition, there is the potential adaptation of Aboriginal innovations in the criminal sentencing process that might be considered for use in the balancing of conflicting individual and collective rights or interests. Building on traditional approaches to the restoration of social harmony, sentencing and peacemaking circles have emerged as a feature of First Nations community participation in the formal sentencing process.¹¹⁷ Similar courts have emerged for sentencing purposes in Australia (referred to as Koori Courts, Murri Courts, and Nunga Courts).¹¹⁸ There may be some concern with the potential for traditional and customary law procedures and authorities being “co-opted” to serve external goals (i.e., the implementation of the CHRA). Nevertheless, this is an area worthy of specialized study, particularly for more remote and traditional communities.

In closing this discussion concerning the appropriate arbiters of custom or tradition, it is important to add the potential for contemporary institutional sources of First Nations legal traditions and customary laws. In some cultures, there has been a rebirth and adaptation of specialized institutions for law giving (legislating or rule making) and the arbitration of disputes (including the establishment or re-creation of judicial institutions).¹¹⁹ Because no truly customary practice remains static or stagnant, there is no “boiler-plate” solution to this challenge.

The following suggestions emerge from the literature:

• To the greatest degree, the determination of a customary law and its application should be respected as a community-based dialogue.¹²⁰ 
  
• Contested traditions are bound to bring with them some degree of “opposing experts,” even amongst elders and traditional people. The potential for introducing an adversarial relationship to the determination of authenticity, and related balancing, may be significant.
  
• Culturally relevant procedures for securing consensus (e.g., talking circles) about the nature and significance of a particular tradition or law might be utilized.¹²¹
  
• Anthropologists, historians, or other social scientists with direct familiarity with the culture concerned may be needed for their expertise. At the same time, such expertise requires balancing from within the community itself to avoid characterizing a particular culture’s expression of custom or tradition in overly artificial, abstract, or formalistic terms.¹²²

CONCLUSION

In the social sciences, legal traditions and customary laws are treated as fairly elastic concepts. Traditions and customary practices evolve and adapt, sometimes quite rapidly, in response to changing social, environmental, and political circumstances. While the term “legal tradition” seems to require some level of historic connection to a specific First Nation’s traditions, such connections are not the core of “customary law,” whether viewed from a legal or social science perspective. To be sure, customary laws must be, by definition, “customary” to the community concerned. But that does not mean that a practice that is customary and lawful (i.e., obligatory and sanctioned) needs to be rooted in ancient times or pre-contact traditions.

Unwritten legal traditions and customary laws are of decreasing significance in many Aboriginal communities due to the emergence of formal structures of local governance—Band Councils, formal resolutions, and by-laws. Nevertheless, legal traditions and customary laws, as acknowledged formally in Bill C-21, likely exist in many community settings, whether within the context of First Nations operating as Bands under the Indian Act or otherwise (such as under modern self-government agreements or treaties).¹²³ What is of concern in Bill C-21 is determining how such traditions and laws operate so that individual rights are properly protected under the Canadian Human Rights Act.

Of significance are the modifying terms “legal” and “customary” in describing what “traditions” and “laws” are to be given “due regard.” These terms introduce a set of boundary questions and analytical issues for interpreting the intent of Bill C-21, some of which are contested. For some analysts the use of the term “law” in relation to cultural practices or traditions may disguise or even distort their reality. For others, the idea of casting contemporary cultural practices as law is to distort fundamentally the social structures within which such practices find expression. Yet others see it as essential that Aboriginal legal traditions and customary laws be strictly defined in order to avoid individual rights being subordinated unnecessarily.¹²⁴

In this part, we have explored the question of balancing, as prompted by Bill C-21 in the context of the social science and historical literature. Three topics have been assessed, with the following main conclusions:

1. The Scope and Meaning of Legal Traditions and Customary Law

• Legal traditions generally require a rootedness within a particular First Nation’s history, as opposed to being “invented tradition”;


• Customary law, in contrast, may be the product of contemporary pressures and community needs, amounting essentially to what is regarded within the community as lawful and obligatory, even if there may be no formal enforcement mechanism in place; and


• There are few external measures or objective tests to determine the validity of a legal tradition or customary law; it is essentially an internal matter for the community.

2. Balancing of Collective Rights and Interests in Tradition and Custom Context

• First Nations legal traditions and customary laws typically express a balance between individual rights and interests and broader social norms of behaviour that reflect collective interests and rights. Legal traditions and customary laws are usually an important vehicle for the protection of individual rights and interests within the community;


• Power dynamics within communities exist and may on occasion be masked as tradition or custom; and


• A key to balancing individual and collective interests regarding traditions and customs is to determine the underlying goal of the tradition or custom, and then determine how that goal can be served with minimal interference with individual equality.

3. Who to Turn To: Arbiters of Authenticity

• Traditions and customs may be hotly contested, particularly by complainants with clear and strong connections to the community concerned;


• External experts, anthropologists, for example, may be able to facilitate an understanding of particular traditions or customs, but may not be able to provide guidance as to contemporary relevance, meaning, or significance;


• Traditional First Nations expertise may be crucial to determining not only what laws and customs are at stake, and what goals they serve, but also in determining how individual interests are protected, or should be protected; and


• The essentially internal or First Nations specific nature of legal traditions and customary laws is such that community-based dialogue and consultation is central to discovering an appropriate balance of apparently contending rights and interests.

PART III: IMPACTS OF THE INDIAN ACT REGIME

INTRODUCTION

This part of the study explores the Indian Act regime in light of Bill C-21’s “due regard” provisions. We canvass a range of literature on the Indian Act’s impact on First Nations, as well as government perceptions of collective and individual rights, how they are currently balanced, and how they might be balanced in future. Some of the sources are academic, although surprisingly little attention has been paid to this set of issues in the social sciences.¹²⁵ In contrast, non-academic assessments that give greater attention to how concepts of “collectivity” and “individual rights” have evolved, including advocacy and policy-based work, have been undertaken by First Nations organizations, government agencies, and Royal Commissions.

Accordingly, in this part we provide a general context for understanding the documented and potential impacts of the Indian Act and its accompanying policies and programs on the social institutions and interactions most relevant to the application of the Canadian Human Rights Act to First Nations. When dealing with such impacts, we need to have an appreciation of the interaction of a fairly rigid set of national policies and laws reinforcing, suppressing, or altering the highly elastic, localized, and constantly re-forming expressions of First Nations cultures over the past 150 years and more.

1. THE INDIAN ACT REGIME

The phrase “Indian Act regime” describes not only the Indian Act itself, but also the many policies, rules, guidelines, and programs associated with the Indian Act. Of importance, the Indian Act provides the Governor in Council and the Minister of Indian Affairs with much discretion. This has emerged over the years in a variety of forms, including formal regulations subject to Parliamentary oversight, Ministerial orders, departmental policies, and a myriad of guidelines and related program and service access criteria, some of which may have government sanction (for example, Treasury Board decisions). For others, however, program and service guidelines may be little more than administrative documents produced without any senior level oversight and without public exposure.

A great deal of what has passed for federal Indian policy has no direct statutory source. For example, treaty annuities are usually paid only to persons with registered status; yet there is nothing in either the Treaties or the Indian Act that compels this limitation. Similarly, policies of relocation and the forced attendance of children at residential schools were without any particular sanction from Parliament other than the Indian Act’s broad provisions for “social objectives” and “education.”

In fact, most programs and services are non-statutory in nature and may, or may not, involve eligibility criteria linked to the Act, such as registered status or membership in a Band. They may also be regarded locally as “law” in the sense of being mandatory. As such, they are all part of the Indian Act regime.

Understanding the Indian Act’s legacy and influence as a statutory regime is critical to appreciating the context in which the CHRA will now operate.
 
1.1. THE INDIAN ACT

The Indian Act is one of Canada’s oldest pieces of legislation. Its origins lie in policies and practices dating to the 17th and 18th centuries in trade and military relations, imperial proclamations and 19th century colonial and post-Confederation statutes. The Indian Act has witnessed several consolidations in 1876, 1886, 1906, 1921, 1927, and 1951. Of importance, in few of these consolidations—and in none of the minor amendments—was there any attempt to accommodate pre-existing First Nations legal traditions and customary laws.

The final report of the Royal Commission on Aboriginal Peoples observed that:

The Indian Act of 1876 created an Indian legislative framework that has endured to the present day in essentially the terms in which it was originally drafted. Control over Indian political structures, land holding patterns, and resource and economic development gave Parliament everything it appeared to need to complete the unfinished policies inherited from its colonial predecessors. Indian policy was now clear and was expressed in the alternative by the minister of the interior, David Laird, when the draft act was introduced in Parliament: “[t]he Indians must either be treated as minors or as white men.” There was to be no middle ground.¹²⁶

Two generations after Laird’s comment, the same purpose was apparent in the words of the Deputy Superintendent of Indian Affairs appearing before Parliament to explain the policy goal of what was to become the Indian Act of 1921:

Our object is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic and there is no Indian question, and no Indian Department—that is the whole object of this Bill.¹²⁷

As with the original legislation of 1876, and in contrast to pre-Confederation and early federal statutes, the objective was clearly intended to replace legal traditions and customary laws with pre-formed settler ideas about citizenship, governance, and socio-economic progress.

The application of the Indian Act regime has had profound impacts on local First Nations legal traditions and customary laws. Generally, the Indian Act itself, as a statutory instrument, has suppressed both Band and wider tribal-level institutions and expressions of customary law and legal tradition. As Ken Coates’ recent summary of the Indian Act’s impact on local governance and culture notes:

Dependency, cultural loss, dispiritedness, and a profound sense of disengagement from the national political system are all logical outgrowths from a system that provided little room for individualism, collective action or a positive Indigenous agenda.¹²⁸

As noted by Coates,

to be a status Indian in Canada is to be immersed in a “total institution,” which envelopes those caught under its authority and which renders them largely without power to determine their destiny. As noted in the considerable research and assessment conducted by the Royal Commission on Aboriginal Peoples, it has been this all-inclusive power—the reality of being under the effective daily control of a distant political authority—that has stripped away First Nations autonomy, undercut their confidence and restricted their ability to compete effectively with other Canadians. Total institutions remove dignity, self-respect and a sense of independence; they are, in return, the foundation of dependency, demoralization and cultural loss. Attempts to understand the full impact of the Indian Act must move beyond the details of specific clauses, amendments or regulations and must reflect more broadly on how this critical and long-standing piece of government legislation has sent a clear message to status Indians across the country that they are and were lesser citizens within Canada and therefore lacking in the most basic rights, freedoms and opportunities available to other Canadians. The Indian Act is both a symbol of cultural and political domination but, in a very real and pervasive sense, the cause of much Aboriginal suffering, discouragement and cultural loss.¹²⁹

The specific impacts for any particular community, tradition, or custom are more difficult to assess. Any claim to be enforcing a tradition or custom will likely be contested by at least some within a community, often due to the felt corruption of “proper tradition” by the Indian Act.

Footnotes

1. Will Kymlicka (2001), Politics in the Vernacular: Nationalism, Multiculturalism and Citizenship, Oxford: Oxford University Press: 83.
2. Val Napoleon (2007), “Thinking about Indigenous Legal Orders,” Research Paper for the National Centre for First Nations Governance: 18 19; Roger McDonnell (1992), “Contextualizing the Investigation of Customary Law in Contemporary Communities,” Canadian Journal of Criminology 34(3–4).
3. Harpe v. Massie and the Ta’an Kwach’an Council, [2006] Yukon Supreme Court 1 (CanLII).
4. The High Court of Australia found that communal acceptance of an individual’s membership was to be determined “by the elders or other persons enjoying traditional authority among those people.” High Court of Australia, Mabo v. Queensland (No. 2) (1992) 175 C.L.R. 1 at p. 70.
5. This approach is most clearly advanced in relation to the tests for “existing aboriginal and treaty rights” as set out by the Supreme Court in the “Van der Peet trilogy” of decisions in 1996. For an analysis, see 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.
6. Robert Tonkinson (1997), “Anthropology and Aboriginal Tradition: The Hindmarsh Island Bridge Affair and the Politics of Interpretation,” Oceania 68(1).
7. Catherine Wholan (2005), “Aboriginal Women’s Interests in Customary Law Recognition,” Background Paper #13, Law Reform Commission of Western Australia: 525.
8. For a U.S.-based discussion of codification issues and cultural authenticity, see Matthew L. M. Fletcher (2007), “‘A Perfect Copy’: Indian Culture and Tribal Law,” Yellow Medicine Review 2, Michigan State Legal Studies Research Paper No. 05-02, Available at
   http://papers.ssm.com/sol3/papers.cfm?abstract_id=1004311.
9. The Indian Act has since its inception recognized that Bands select their leadership in accordance with their customs or traditional practices, subject only to being displaced by government order, whether by the Governor in Council (up to 1951) or by the Minister (from 1951 to date). For a discussion, see Robert Groves (2007), “The Curious Instance of the Irregular Band: Canada’s Missing Recognition Policy,” Saskatchewan Law Review 70(1): 153–182.
10. Val Napoleon (2007), “Thinking about Indigenous Legal Orders,” Research Paper for the National Centre for First Nations Governance: 18 19.
11. Further to the “Hindmarsh” affair cited above, see James Weinter (1997), “‘Bad Aboriginal’ Anthropology: A Reply to Ron Brunton,” Anthropology Today 13(4): 5.
12. R. v. Pamajewon, [1996] 2 S.C.R. 821 rejected the argument that self-government, as a right protected under s.35, could exist in the abstract or as a broad jurisdiction. The Court ruled that any such right needed to be established in accordance with the fact-specific tests set out in R. v. Van der Peet, as discussed at Part I above.
13. Delgamuukw v British Columbia [1993] 3 S.C.R. 1010.
14. For example, the Nisga’a Final Agreement Act, S.B.C., [1999], c.2, provides in s.41 of Chapter 11 that Lisims Government laws to preserve, promote, and develop Nisga’a culture (and language) prevail to the extent of any inconsistency or conflict with provincial or federal laws.
15. The Supreme Court referenced the New Zealand government’s approach as an example of an alternative dispute measure in Haida Nation v. British Columbia (Minister of Forests), [2004] 3. S.C.R. 511.
16. For an in-depth analysis of peacemaking circles in the Canadian context, see Barry Stuart (1999), “Peacemaking Circles: Principles for Introduction and Design of Peacemaking Circles,” L.LM Thesis, Osgoode Hall Law School, York University.
17. See Report of the Law Reform Commission of Western Australia (2006), Part V: Aboriginal Customary Law and the Criminal Justice System, available at www.lrc.justice.wa.gov.au/2publications/reports/ACL/DP/Part_05D.pdf.
18. James Zion (1988), “Searching for Indian Common Law,” in Bradford Morse and Gordon Woodman (Eds.), Indigenous Law and the State, Dordrech, Netherlands: Foris Publications.
19. See Val Napoleon (2007), “Thinking about Indigenous Legal Orders,” Research Paper for the National Centre for First Nations Governance: 18 19; and Roger McDonnell (1992), “Contextualizing the Investigation of Customary Law in Contemporary Communities,” Canadian Journal of Criminology 34(3–4).
20. On the litigation concerning the relationship of s.35 rights and the Indian Act, see Sawridge Band v. Canada [(2009] F.C.A. 123 (CANLII).
21. See, Peter R. Grant “The Tenth Anniversary of Delgamuukw v. the Queen: Two Legacies” (n.d.) at www.grantnativelaw.com/pdf/Delgamuukw_Ten.pdf.
22. For example, the First Nation communities that form the Nisga’a Nation and the Tlicho Nation are no longer Bands under the Indian Act. The two dozen communities that form the Federation of Newfoundland Indians (currently being considered for establishment as a Band) and several others across the country have never been Indian Act bands, but nevertheless are likely to have legal traditions and customary laws in respect of a range of matters. See Robert Groves (2007), “The Curious Instance of the Irregular Band: Canada’s Missing Recognition Policy,” Saskatchewan Law Review 70(1): 153–182.
23. David Howes (2005), “Introduction: Culture in the Dominions of Law,” Canadian Journal of Law and Society / Revue Canadienne Droit et Société 20(1). Howes provides a useful overview of the emergent judicialization of culture, and assesses the movement in Canadian courts toward the use of “distinctiveness” and the associated need to connect contemporary practices to pre-contact origins in order to be both distinctively Aboriginal and protected under law.
24. As discussed in section 2 below, the dominant academic focus in relation to the Indian Act has been on its historic and continuing discrimination against Indian women and social institutions tied to matrilineal descent.
25. Report of the Royal Commission on Aboriginal Peoples (1996), Vol. 1, Looking Forward, Looking Back, Part Two: False Assumptions, Failed Relationship, Section 9, “The Indian Act.”
26. Quoted from evidence of D. C. Scott, Deputy Superintendent of Indian Affairs, to the Special Committee of the House of Commons examining Indian Act amendments tabled in 1921: see John Leslie and Ron McGuire (Eds.) (1979) The Historical Development of the Indian Act, 2nd ed., Ottawa: Treaties and Historical Research Centre, Research Branch, Corporate Policy, Department of Indian Affairs and Northern Development: 114.
27. Ken Coates (2008), “The Indian Act and the Future of Aboriginal Governance in Canada,” research paper for the National Centre for First Nations Governance: 4–5. Available at www.fngovernance.org/researcn/coates.pdf.
28. Ibid, p. 29.

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