We acknowledge that we live and work on unceded Indigenous territories and we thank the Musqueam, Squamish and Tsleil-Waututh Nations for their hospitality.
The Supreme Court of Canada’s approach to Aboriginal identity is fraudulent and harmful to Indigenous peoples in Canada. This is essentially the conclusion reached by Professor Panagos in his new book. Although this conclusion is by no means new, and the author refers to well-known critics of Aboriginal rights doctrine, his approach to revealing this truth is rather unique and very valuable. He does a remarkable job in a very academically efficient manner of revealing the harm and unfairness of the Court’s current approach to s. 35 analysis.
His main focus and critique is not about the usual critical discussion around concerns over the narrow scope of Aboriginal rights or the unfair legal tests that Aboriginal claimants must follow, but about how the Court funnels all Aboriginal rights analysis though the Court’s own imposed understanding of Aboriginal identity.
After first determining that the Supreme Court of Canada is fixated on “Aboriginality” as the basis for s.35 Aboriginal rights protection, he then identifies the two competing approaches to conceptualizing “Aboriginality” which are traits-based and relational. Panagos is critical of how courts and commentators have a tendency to define Aboriginal identity by reference to whether the group possesses certain cultural traits. This approach, he argues, can lead to real world costs associated with essentialist understandings of what characteristics makes the group Aboriginal, which can lead to fixed identities that prevent the group from evolving over time and leads to unhelpful debates over “authenticity” that causes conflict and exclusion. Consequently, Panagos prefers to use a relational approach to identity as such an approach, he effectively argues, results in less harm that a traits-based approach.
Once grounded in a relational approach to identity, Panagos then identifies three definitions or versions of “Aboriginality” generated by the relational approach. The first version he identifies as the “nation to nation” conceptualization of Aboriginal identity based on an emphasis of self-definition and self-government perspectives relied on by the Indigenous parties involved in key Aboriginal rights litigation. The second version he labels as the colonial version of Aboriginality based on state imposed definitions and governance authority over Aboriginal peoples, which was the version advocated primarily by government parties in the litigation. Neither of these versions were adopted by the Court, however. Rather, Panagos explains how the Court charted its own path of Aboriginal identity, which he defines as the citizen – state conceptualization of Aboriginal identity and it is this version of Aboriginality that the Court relies on in determining what rights and what limitations to those rights exist in s. 35 of the Constitution.
One of the most valuable contributions to the literature on Aboriginal rights jurisprudence is Panagos’s explanation of how the Court has adopted its own citizen-state definition of Aboriginality that supports neither Aboriginal or government concepts of Aboriginality. More important, however, is how Panagos shows that the failure by the Court to adopt the nation-to-nation conception of Aboriginal identity has led to a number of disturbing negative social consequences which are devoid of valid or rational justification. For instance, the Court’s focus on the citizen-state version of Aboriginality only allows certain identity-based interests to be protected where they are compatible with the citizen-state conception. Demanding this type of compatibility as a pre-condition for accommodation is unfair because it forces an Aboriginal group to conform to an imposed definition of Aboriginality instead of the one advanced internally by the group. The second major concern is the lack of any rationale issued by the Court for its decision to protect the citizen-state conception of Aboriginality, which Panagos states creates a “jurisprudential justification gap that undermines the legitimacy of the Court’s s. 35 jurisprudence”. Furthermore, the Court misrecognizes Aboriginal peoples by basing rights on a concept of Aboriginality that they do not advance. Finally, the citizen-state version is unfair because it leaves unquestioned the legitimacy of the Crown’s sovereignty and title to land, which places Aboriginal peoples in a subordinate position in Canada.
The book’s argument that rights based on the citizen-state conception of Aboriginality is unable to protect the nation-to-nation conception is very significant in today’s discussions around how to implement the United Nation’s Declaration of Indigenous Peoples Rights as part of implementing the Truth and Reconciliation Commission’s recommendations. The book convincingly shows that unless the Court’s approach to Aboriginality and, indeed, the purpose of s. 35 is fundamentally altered, there will be no honourable implementation of the Declaration or adoption of a nation-to-nation relationship in Canada so long as the Court maintains its harmful and irrational citizen-state conceptualization of Aboriginality.
Uncertain Accommodation: Aboriginal Identity and Group Rights in the Supreme Court of Canada
Vancouver: UBC Press, 2017. 176 pp. $27.95 paper.