Who's the Best Aboriginal? An 'Overlap' and Canadian Constitutionalism

My chapter is an analysis of the word 'overlap' in Canadian jurisprudence. When mentioned, it is used to describe moments when different indigenous (First Nations, Inuit or Metis) constitutional rights cannot exist at the same time. The two types of rights mentioned in Section 35 of Canada's Constitution Act, 1982,'Aboriginal rights' and 'treaty rights', have permitted indigenous nations to discuss the importance of various views and activities vital to their cultures' continuance. Yet due to how some other juridical terms have evolved, such as 'exclusive use' for land title, some scenarios have demonstrated that certain cultural components are in jeopardy due to how they interact with these other constitutive notions and other nations' pursuits of constitutional protection for their own cultural conditions. While the courts, non-Aboriginal politicians and indigenous leaders have certainly described their concern about how Aboriginals can challenge each others' constitutionalism, neither judges nor elected officials have created a way to overcome an impasse when Aboriginals either stall a legal argument or, alternatively, one indigenous party wins and ultimately makes the other indigenous party's cultural qualities less protected. By using a scenario from my home province, I seek to provide some preliminary observations about the normative nature of 'overlap'. As well, due to this case study's form, I also remark about how a place of inquiry separate from the courts has evaluated some disagreements which include an overlap in their composition. I argue that in some conditions, it is possible a commission/tribunal/mediator officially introduced as 'independent' might develop qualities during its mandate which transform it into a branch of the Crown. As a result, its legal nature also shifts. Should the parties using this alternative venue be indigenous, this venue's legalistic transformation is particularly notable since the judiciary (or an independent tribunal) does not owe a fiduciary obligation to Aboriginals but the Crown does due to the Royal Proclamation, 1763. In this story, because of how Canada negotiated the final constitutive form of Nunavut, the Inuit land claim clearly conflicts with the interpretation of the Denes' historic treaty rights. The Indian Claims Commission in Canada tried to work with the Dene of northern Saskatchewan and the Inuit of Nunavut to explore the practical effects of an overlap regarding hunting activities of both indigenous groups. Yet resolution remains to be found, and the Dene's cultural form is seriously threatened because Canada has forbidden the Dene annual caribou hunt in the form described in the Dene-Crown treaties. The courts and the Crown have yet to provide clear guidance about overlaps, and I argue these types of disputes will invariably increase in number as more indigenous nations organize themselves for arguments about s.35 recognition. As more parties also use processes considered non-adversarial in nature, it is also important to consider how these alternative places function in law when an overlap develops. I conclude my remarks with some reflections about how the Aboriginal rights mooting event facilitated by many Canadian law schools (the 'Kawaskimhon' moot) acts as a place where many s.35 conflicts receive unique attention from indigenous law students, lawyers and professors in a way the non-indigenous legal community has yet to fully appreciate.

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