An interesting Friday morning read for those who can find time. While the majority decision is framed narrowly, Rowe J flags a number of outstanding issues to be addressed in future cases. One that jumped out at me was the relevance of common law Aboriginal rights post-1982. 1/11
The Crown argued Mr. Desautel, a member of the Lakes Tribe in Washington State, may have common law Aboriginal rights even if he lacks constitutional Aboriginal rights under s. 35(1) as a non-citizen/resident. 2/11
This might sound unconventional & odd but it's an important question that was flagged in a 1999 article by @MWaltersQueensU, which is cited elsewhere in the decision: https://canlii.ca/t/2bd9  (an article I highly recommend!) 3/11
In a nutshell, the pre-1982 position from British imperial law (i.e the doctrine of continuity) appeared to be that Indigenous customary laws & legal entitlements formed part of the common law unless certain exceptions were met, such as extinguishment or cession. 4/11
This common law position was referenced in Van der Peet test but the majority imposed a further limit. Only a subset of Indigenous practices, customs & traditions benefit from constitutional protection: those that are 'integral to the distinctive culture' of the collective. 5/11
So the difficult & unresolved question is whether s. 35 somehow extinguished the common law Aboriginal rights that do not meet the Van der Peet test or whether they continue to be recognized at common law, but simply do not benefit from constitutional protection. 6/11
Justice Rowe (for the majority) briefly acknowledges this issue, suggests proof of an Aboriginal right at common law should be enough to prove a s. 35 right, but declines to resolve what this means for the "integral" requirement of the Van der Peet test (see paras. 67-70). 7/11
However, with many courts across Canada grappling with the status of Indigenous laws within Canadian law, it's worth noting that this significant doctrinal wrinkle still hasn't been ironed out over two decades later. 8/11
Prof. Walters argued (quite persuasively in my mind) that common law Aboriginal rights can & should be argued in addition to constitutional Aboriginal rights. This could bring the issue squarely before the courts & perhaps provide a backstop where no legislation is impugned. 9/11
Since constitutional protection is largely about the relationship between rights-holders and the state, it's worth considering whether recognition of common law Aboriginal rights could support the broader integration of Aboriginal rights (& Indigenous law) in Canadian law. 10/11
Aside from this rabbit hole, it's encouraging to see Rowe J focus on doctrinal coherency for the majority in Desautel. This is quite the contrast from his dissent in Mikisew 2018, which respectfully seemed to sacrifice doctrinal coherency on the altar of practical concerns. 11/11
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