A Right Without a Rights-Holder Is Hollow: Introduction to OHLJ’s Special Issue on Identifying Rights-Bearing Aboriginal Peoples

The focus of this special issue of the Osgoode Hall Law Journal is on identifying holders of rights which are recognized and affirmed by section 35(1) of the Constitution Act, 1982. While Canadian and provincial governments and industry proponents have assumed that Indian Act bands are section 35 rights-holders, Kent McNeil’s analysis of the relevant jurisprudence reveals that this issue is to be resolved with reference to Aboriginal peoples’ own laws. As such, the assumption that a section 35 rights-holder must possess an overarching governance structure is unwarranted if the relevant Aboriginal people’s own laws are not grounded in positivism. Naiomi Metallic’s incisive critique demonstrates that the reasoning in R v Bernard was captured by precisely this type of positivist assumption when the court held that smaller Mìgmaq collectives—as opposed to the larger Mìgmaq nation—must be the rights-holder because the larger Mìgmaq nation lacked a ‘Super Chief’. Gordon Christie identifies another form of capture within the section 35 jurisprudence: Aboriginal peoples are presumed to be socio-cultural bodies and not political bodies, and Aboriginal rights are presumed to be cultural activities and not governmental powers to exercise jurisdictional authority. Both presumptions are captured by liberalism and neither is supported by the text or by a purposive interpretation of section 35(1). Sara Mainville’s article uncovers a conflict between Canadian and Indigenous law in the context of a Kelly order, which courts characterize as a practical solution to the dilemma of how to identify the rights-holder on an interlocutory motion. Mainville demonstrates that the adversarial effects of a Kelly order contravene the Anishinaabe legal principle of consensus-building. Perhaps unsurprisingly given these various conflicts between Canadian jurisprudence and Indigenous laws, Paul Chartrand argues that the identity of rights-holders should be decided through political negotiations between political actors, and not by the courts. Similarly, Jason Madden argues that the Supreme Court of Canada’s jurisprudence entails a duty on Canadian and provincial governments to negotiate with an Aboriginal people to identify the proper rights-holder when a prima facie Aboriginal right exists. In these ways, the articles in this special issue make valuable contributions to ongoing discussions about identifying section 35 rights-holders.

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