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a retrospective look at the jurisprudence on the Crown's fiduciary obligations to Aboriginal peoples in "Crown-Native Relations as Fiduciary: Reflections Almost Twenty Years After Guerin." H e suggests that, in its two-decade presence in Canadian jurisprudence, the understanding of Crown-Native relations as fiduciary has, paradoxically, become well-entrenched and wen axiomatic in spite of limited judicial commentary on that relationship and its implications. He considers the implications of the Supreme Court's most recent pronouncements on Crown-Native fiduciary relations and looks to some of the unanswered questions revolving around the judicial understanding of those relations as fiduciary that remain to the present day. These papers provide important insight into the advances that have been made by Canadian courts in the Aboriginal Law area over the past number of years. They also indicate that a lot of work remains to be done if Aboriginal peoples are to receive proper recognition and protection of their rights, as dictated by the creation of section 35 of the Constitution Act, 1982and the elaboration of that section's effect in R. v. Sparrow.' I would be remiss if l did not thank the many who are responsible for the publication of thesc symposium papers. The editorial board for Volume 22 - Bill Bogart, Maureen Irish, Paul Ocheje, and David Wiseman - provided strong editorial assistance and other support necessary for the publication of this collection, particularly under some trying circumstances. Mona el Baroudi, WYAJ Co-ordinator, continued her terrific behind-thc-scencs support for the WYAJ to the day of the birth of her daughter, Merccdes, and upon her return from maternicy leave. During her absence, our student assistants - Jeff Bell (Law '04), Trlly Lebedev (Law '05), and Dana h u (Law '05) did a wonderful job of keeping the office running in addition to providing research and editorial support. 1 would also like to rhank Joe DiModugno and Elizabeth Godo for their assistance in the final stages of editing. Finally, I rhank Dean Bruce Elman and the Law Foundation of Ontario for their continued support of the WYAJ. This is the last volume of my three-year stint as Editor-in-Chief. The time has gone by quickly. We have, I believe, continued to improve our product during these past years. O u r recent special issues emphasize the wide range of topics that fall within the purview of Access to Justice. There are many more which I have every confidence will appear in the WYAJ in the ensuing years. Thanks to everyone for a job well done! Leonard I. Rotman Editor-in-Chief and Professor of Law

INDIAN AGENCY AND TAKING WHAT'S NOT YOURS

John Borrows'

Aboriginal peoples in Canada continue to exercise moral, political and legal agency in their interactions with others, despite centuries of repression. In earlier times thefcdtralgouernm m t m'ed to undermine theseJiecdoms by placing Indian agents in supervisory roles over their communities. Indian peoples' active participation i n resisting these colonial impositions hnr encouraged some positive changes within their communities. There have alro been some setbacks. Abon'@nal decisions have alro affected the wider world around them, for good and ill, ar exempl~>ed by certain Supreme Court of Canada decisions. This artick- suggrsts chat the power of aboriginal choice in rkrisionmaking should be more explicitly recognizd and ufirmed. This would enabk- aboriginal peoph to firrther -and agency: sphcre, and thtu take greater control of their individual lives, their community? governance and the Canadian state. This messagc is presented in accordmce with thc author? undenranding of Anishinabek tenching methodologies, and roncludes by offering a j w cautions abo~tthow choice is exercised and its potential for detrimentally affecting aboriginal peoples and 0then, ifsuch choice is improperly exercised. This artzcle? Anishinabek cornrnunicution style leaves the reader with the task of interpreting the message and drawing their own conclusions about the spec& challengesfaced by aboriginal prop les and others when making choices in the context of the continuing colonization in Canada. As such, the articft attempts to engage the reader; agency i n a manner consistent with the message underlying the work ar R whole. Les p m p b autochtones nu Cdnada conttnuent ri agir m o r a h e n t , politiquement et Bga[emmr &ns leurs interactions auec les aurres, m a l ! des si?cles de rL/pression. Par le pass4 le gouvernement fpdPral a tent4 & saper ces libertks en plafanr des agents indiens dam des rSk-s de surveillants de leurs communaua rksisrance tks. La participation active des peuples indiens a L contre ces impositions coloniales a encouragk cerrairu changements posittj5 au sein de Lars commzlnauth. Il y a aussi eu des revers. Les dPritions autochtones ont aussi e t r des effets szir k monde plus uaste qui k s entoure, pour le mieux er pour le pire,

Law Foundation Chair in Aboriginal Jusricc, Faculry of Law, Univcrsiry of Victoria, of rhe Chippewa of the Nawash, Anirhinrbek Nation.

(1990), 70 D.L.R. (4th) 385 (S.C.C.).

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Windtor Yearbook ofAccess to Justice comme k dbmonment certaines dPcisions de la Cour Suprime du Canada. Cet article suggPre qare le pouvoir de choir autochrone dans laprise de dCcisions devrait &re reconnu er a$rmidefafon plus expliciu. Cela permettrait aux peupks aurochtones d'agrandir ahvantage kur champ d'action et ainsi de conrr6lcr &vantagc leurs vies individuelles, Lz gesrion de burs communautbs et l h r canadien. Ce message est vbhiculP conformbment d la mkrhoahlogie d'cnseignemenr Anishimbck telk que conpe par ['auteur er conclur cn donnanr quelques avcrtissements en rapport d la facon d'exercer des choix er ri la possibiliti dkgir au dPm'mmt dcspeuples a~rrochrones er des arrtres si de telr choix ne sonrpas bicn ncercPs. Le sryle de communication Anishinabek de cer article laisse au lecreur 014 rj. la kctrice le soin d'inre~prbrerle message et de rirer ses propres conclusions quant aux dCfis prbcis qu 'cnvisagent les peuples autochroncs et les aurres lorsqrr 'ilrfanr des choix dans k conrexte de la colonisation qui se poursuit au Cznada. Ainsi, ['article cherchc d engager ['action du lccteur ou de la lccm'cc de facon conforme au message qui sous-tcnd I buvrage duns son cnrier.

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"Indian Dogs and the Law." H e thought someone should write a law revicw article about the subject one day. Ir's a topic thar would reveal much. Througho u t Indian Country people would understand the pressing nature of thc inquiry. Dogs were probably the first point of contact on all the reserves he had visitcd, though the Canadian Housing And Mortgage Corporation ( C M H C ) clapboard bungalows were a closc second. T h e article could bc doctrinal, a discussion of band by-laws regulating dogs in Indian country and their intcrpretation by various legal institutions. O r it could be socio-legal, exploring the interaction between customary norms associated with dogs in traditional Indian cultures with the adoption of more formal rules concerning them since contact with colonial societies. Even better, he mused, one could dcvelop a whole theoretical structure from such a study. "Critical Indian Doggie Studies." It could use hermencuticd methodologies to great effect. O r maybe someone could come up wirh some formulas and strive for predictive analysis with their theory. "Law and Dogenomics?" Perhaps ... but maybe that was a little too stufTy. He considered all this as he walked past the old Indian agent's house at the crook in the road going out to the McGregor's Harbour. It was besieged by dogs. T h e dogs had certainly taken rheir toll o n the place. In fact, they made a good case for adverse possession, having d u g holes in the yard, through the fence and under the foundation. H e wondered what the old agent would think if he saw the place today. T h e barbells and bench out front would probably be wcighed and found wanting. H e might also object to the black Iron Maiden sticker o n the centre of the living room window. T h e building must have been something grand in its time though. It was one of rhe few stone houses standing on rhe reserve. N o doubt it was built to impress, whcn it was thought Indians needed such lessons. Made of tan multi-layered field- and sandstone it overlooked thc bay and surrounding precincts. From its generous two-sided porch the agent would have been able to survey the activities of all who passed. He

would even have been ablc to keep his eye o n the Chicf living o n the other side of the harbour. Such was the positioning of the house o n the reserve. It paralleled the Agent's position in the legal hierarchy known as the Indian Act.' T h e man continued walking past the house around the bay; past his uncle's old farmhouse, taken by arson twenty years ago; past the field in front of the Catholic Church. H e then turned right and walked to the foundation of his great-grandfather's house, where i t stood a generation ago. Snow piled in its shadows where the sun could not reach. Lilac bushes and a gnarled apple tree surrounded the stones. Buds o n the orherwisc empty branches promised the return of new life. He turned and faced the warcr, admiring the spot his ancestors had chosen. H e walked down to the beach, across the road in front of the site. Gencrations of childrcn must have played therc. His great-grandfather had been born o n that very shore. H e was wrapped in moss and bearskins in those first few years of life; Aunt Irene used to love to tell such details. T h e man then looked back rhc way hc camc, and saw the Agent's house across the bay, diminished by both timc and distance. H e knew most rescrves in the United Statcs and Canada had Indian Agents appointed by the federal government to ovcrsce Indian "development" and facilitate the process of assimilation.' Some tribes cven had whole groups assigned by the government to look after their affairs, callcd Indian ~ ~ e n c i e s . ~ Agents and Agencies were supposed to be the last word in the community o n such diverse issues as band cxpendirures, land surrenders, the passage of laws, the running of schools, the building of infrastructure, and the general economic and social climate of the reserve. H e remembered a quote he once read from George Manuel: "It was the job of these new white chiefs to displace our traditional leaders in their care over our day to day lives in order to bring our way of life into line with the policies that had been decrecd in ~ t t a w a " .H ~e thought this statement about summed up their purpose. H e had been told, however, thar the Indian Agents of his reserve had been a rather incompetent lot, though their official legal capacity certainly made them a force in the c o m m ~ n i t y T .~ he shifting sands of Indian agency caught his thoughts and caused him to reflect o n its influencc on issues wirh which he was familiar. In his own life he had seen many different views of Indian agency. H e could still rcmember his first real encounter with the subject. It was in his grandparent's pitched wood log cabin many years before. In facr, he could see thc escarp-

I For some purposes, Indian agcntz wcrc ohen referred ro as superintcndentz under rhc Indjnn Acr, R.S.C. 1985 c. 32. For a list o f their regulatory authoriry over Indians see ss. 2(1), 32, 63, 50(2), 40, 86. 103(1), 108, 117(b). 122(c). 2 Fnncis I? Prucha, Thc Gnar Farhrr Tbc Unitcd Starrr Govcrnmcnr andAmrrican Indram (Lincoln: Univcrsiry of Nebrash Pras, 1984) ar 91, 97, 113, 140, 143. 159-63. 298-299; R o p l Commission on Abor~gind Peoples, Rrpon of rhc Royal Commrrrron on Aboriginal Pcopb Looking Forward Looking Back, R,Iumr I (Ottawa: Supply and Services, 1996) ar 297-299. 3 Prucha. ibid ar 512-519, 522-529. 4 Gcorgc Manuel and Michael Posluns, Thc Fourrh WorM: An Indian Rcaliry (Don M~lls: CollierMacMilhn, 1974) 54. 5 John Borrows, A Genealogy of Law: Inherent Sovereignry and First Nations Sclf-Governmenr ( I 992) 3 0 Osgoodc Hall Law Journal 291 at 345-346 [Grncalogy of Law]; Peter Schmalr, TIIC Ojibwa ofSourhcrn Onrario (Toronro: Universiry o f Toronto Preu, 1991) ar 208-226.

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ment that shielded that small house at its base, beyond the Johnston cottages across the bay. It was in the middle of nowhere in the centre of an amazing world. He remembered an earlier day, sitting beside his grandmother's wood stove in her old chair, having not spoken for ages. H e had probably been about ten at the time. After a couple of hours of non-stop conversation, Nokomis, Mishomis, and his mother went silent. They turned their attention to him. They suddenly seemed to realize he was there. After a moment's reflection, his Nokomis said something like "he's so quiet. H e must be listening to everything we say." He recalled feeling good about hcr words. H e had tried to sir still so as not to disturb them. H e didn't want them to stop or change a thing rhey were saying because of his presence. At that moment he had struggled to blend into the room. H e remembered that they seemed to consider him for a moment and then continued o n talking. And they did talk.' H e learned of Kwoabnise, Wcndigo, Mishiipiishii, and Wolverine: creatures that sralked the night and brought terror to those who were careless. They spoke of how the world was alive - animate:' fires walkcd along the e s w p m e n t , water lit up the night, and trees spoke to you when you by them. Even the dead were living and would visit if you necded thcm o r they needed something from you. This was agency. This was Neyaashiinigming, the Cape Croker Indian Reservation in what is now called Ontario, Canada.' His mother's ancestors made this land home from time of memory. She had grown up in that place where they sat, o n this territory, and in those three little rooms. And, at ten, understanding dawned rhat he too was growing up, becoming a part of the place, and sharing in its memories. Similar moments throughout his childhood entwined thcniselves with his own experiences. They shapcd his understanding of the world around him and the impact of choice and accountability in peoples' interactions with the world. Standing there at his great-grandparents' beach he thought of many experiences connecting and separating him from that time: his life on the farm, high school in Barrie, an early marriagc and thcn university. H e thought of time spent in law school. How, like in that old cabin, hc once again had sat very quictly. H e couldn't recall spenking in class morc than ten times. Unlike before though, his silence wasn't because he didn't want to disturb, he was quiet because whar he heard was disturbing. T h c stories seemed so different. Everything felt cold, lifeless. T h e people spoken of were detached from any context. It seemed to him that agency was repressed. Case after case piled one upon

another, where background barely mattered and facts wcrc only shadows of the reasons for decision. And the places he studied had no spirits, only uses, divisions, and remainders. And the dead were, well ... dead. They could only secmingly be relevant vicariously, through criminal law and civil remedies. T h e stories did not connect him to any placc; in fact rhey seemed to sever him from the world. They created a realm of interchangeable and abstract concepts that obscured the vast range of choice available to both those observing and involved in its administration. At school he learned that one effect of this concealment was that very little protection was accorded to Aboriginal rights and freedom^.^ Lives were unduly "s~~sceptiblc to government interference" 'O as a result. Interference came through the suppression ofAboriginal choice in numcrous fields, such as governance," land use and ownership,'* parent-child r e l a r i ~ n s h i ~ s , economic '~ d e v e l ~ ~ m c n treligious ,'~ association," duc process,'7 and equalicy.'' Those who created and administered the law had not ensured that Indian peoples were "endowed with institutions and rights necessary to maintain and promote their identitics against the assimilative pressures of the m a j ~ r i t y . " ~ ~ Through time, this led to evcn greater governmcnral interferencc, as Indians were not extended the institutional means to resist thc violation of their

6 Srories provide perspective for judgemenr. Thcir setring, characrers, plor, rhemcs, and language can confirm or challcngc our deepest undersrand~ng of the world around us. Thcir srrucrurc and subsrancc a n corrobontc or conrndicr our perceprion of rhe issues they raise. I f well rold. srories may cvcn prompr both reactions. Humans have the wpaciry ro support, reject, or simulraneously entertain divcrgcnr rrsponses to [he idez and circumsrances rhcy encounrcr. Stories can rcvcal a nnge of choice in srrucruring rhoughts, behavior, m d relarionships. 7 The Anish~nabcklanguage divides irself inro rhe animate and inanimare. Many things char s rock, houseEnglish speakers would consider inaninlare arc animarcd in Anishinabck such a hold urensils, or tools. 8 Loured on rhc sourhcrn shores of whar is now called Lnke Huron and part of rhe larger AnishinabeWOjibway narion surrounding thc Grear Lakes.

9 See R v . Sparrow, [I9901 1 S.C.R 1075 ar 1103: "For many years the righrs o f Indians to rhcir aboriginal lands were virtually ignored." 10 Rcfrcncc Rc Qurbcc~cccrsion,[I9981 2 S.C.R at para. 74. 11 Logan v. S'y~rs(1959). 20 D.L.R. (2d) 416 (Onr. H.C.) (upholding forcible evicrion of rraditiond Haudcnosaunec govcrnmenr). 12 For cxmplc, Joseph Trurch, in denying Aborigind r~rlc in B.C. observed: The rirlc o f rhe Indians in the fee o f the public lands, or any porrion rhcreof, h z ncvcr been acknowledged by Governmenr, bur, on the conrnry, is disrincrly denied. British Calurnbia, Papcn Conrrcctrd wirh rhr lndran h n d Quation, 1850-1875 (Vicroria: Govcrnmenr Prinrer. 1875) ar appendix, 1 I. 13 John S. Milloy. A Narional Crimc: Thc C a n d o n G o v m m r n r and r l ~ c Rnidrntial Scl~ool Syrrem, 1877-1786(Winnipcg: U. of Manitoba Press. 1999). 14 Aborignal people arc consrantly charged wirh criminal offcnccs for hunting and fishing In rndirional economic pursuirs. Some h ~ g h uses m R v. S y L b q [I9291 1 D.L.R. 307 (N.S. Co. Cr.); Simon v . Thc Quecn (1985) 24 D.L.R. (4th) 390 (S.C.C.); R. a Horrcwran (1990) 1 S.C.R 901; R v. Corc (1996) 138 D.L.R. (4'h) 185 (S.C.C.); R v Badgrr (1996) 133 D.L.R. (4Ih) 324 (S.C.C.); R 0. Manholl [I9991 2 S.C.R. 533. o N o m j 119921 2 C.N.L.R. 139 (B.C.S.C.) (Abor~ginal spirir dancing nor protecrcd by I 5 Tl~omnr . Thc Quccn (1985) 21 D.L.R. (4th) 641 (S.C.C.) (raking fresh deer Charrcr);/ack and Charlit v meat for Aboriginal dearh ceremony nor prorccred). 16 Many bands were kcpr aparr or relocared to prevcnr rhcir associarion because o f governmcnr fear rhcy would organize ro resisr impingemenrs o f rhcir righrs. 17 A Crown fiduciay dury h s been arricularcd In an arrempr to cure violations o f Aboriginal righrs sremming from d~ffcrcnces In rhc way Aboriginal pmplc hold and acctss rheir righrs. Signifiwnr wses in chis regard arc Gurrin v. Thc Quccn (1984) 13 D.L.R (4th) 321 (S.C.C.); Kruger o Thc Qucm, (1985) 17 D.L.R. (41h) 591 (F.C.A.); Blrrrbcny R i v n Indion Band v C R N ad? (1995) 130 D.L.R. (41h) 193 (S.C.C.). For a fullcr discussion see Leonard I . Rorman, Paral1 c 1 Parllr (Toronro: Universiry ofToronro Press, 1996). 18 G n a h (A.G.) v. Laucll[1974] S.C.R. 1349 (invidious disrincrions in Indian Acr on basis ofsex upheld). 19 Qucbcc Sccc~rion,rupra note 10.

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Indian Agenry and Taking What i Not Youn

rightsz0 The absence of remedies to contest the injustices they ficed conrributed to their unacceptable socio-economic status within a generally prosperous society.21 Law, he saw, had largely hidden Indian's agency from public view, obscured by a heavy stratum of Canadian fedcra~ism.'~ Yet he knew their immersion under other's structures was not always from a failure of effort to make it otherwise.23 H e knew this from stories like those heard at his grandparents' house. They showed that Indians were not passive objects in the sweep of colonial history. They had employed choice and will to contest and sometimes subvert institutions and ideologies imposed on them. Yet, despite their best efforts, lndians encountered great difficulties in turning these intrusions to their own purposes. They were buried under levels of law and bureaucracy that had little to do wirh their understanding and aspirations for their place in the world. He looked up at the oak trees standing beside him. He glanced back over his shoulder at the apple trees and lilac bushes surrounding the old place. His greathad ~ l a n t e dmany seeds here. Me nlso nourished that which was passed on to him. AFter millennia of self-rule, he became an elected Chief on the reserve under the provisions of another government's rules. Prior to that, through the seven previous generations, his family had served as Chiefs through heredity and community consensus.z4 Yet he had to submit to the federally enacted Indian A C ? ~ to be recognized by the Dominion government as thc rcprcsentative of his people and thereby allow the community to receivc the bene-

fits of treaty promises secured by his father a short time before. H e worked for close to fifty years as a Chief and councillor and struggled to make it relevant to the values and activities of the people he served. The Art contained a detailed w d e that imposed a structure on lndian communities largely inconsistent with their ancient teachings and rraditions. Passed in 1876, it sought to change them into middle-class Victorian citizens by transforming their land holding system^,^' traditional governance srruct~res,~' spiritual o b ~ e r v a n c e secon,~~ o m i c ~and ,~~ community citizenship rules and entitlement^.^' As if these changes were not enough, an lndian agent like the man who had lived across the way was inserted into this dysfunctional scheme.32 His greatgrandfathcr found it difficult to integrate thc Act's authoritarian proscriptions with the consensual approach to governance common to Anishinabek political and legal thought. His success in responding to community needs was most often achieved in spice of the Indian Act. H e had to take great steps to preserve the Indian's agency at Cape Croker, to prevent it from being undermined by the legislation's substitution of an Indian ~ ~ e n t . ~ ~ A small breeze picked up the water and splashed it against the sand at his feet. His cycs followcd the line of thc waves around thc harbour to the far shore. Sizing up the bay, he estimated that it was about a mile around. It was good

20 Indians could nor vote for rhc finr sevenry-fiveyears o f confedcrarion, see for example, Brirish Act, 1872, s. 13. Indians did not Columbia QualjFntion and Rcpmation of Vorcrs Ammdn~enr gcnenlly enjoy fcderal voting rights until 1960 whcn the federal franchise w u f i n d y cxrcndcd to them wirhout qualification. The provinca arendcd the franchise to lndians ar different data: British Columbia 1949. hhnitoba 1952. Onrario 1954. S s k a r c h m n 1960, Prince Edward lrland and Nou Brunswick 1963, Alberra 1965, Quebec 1969. The Inuit were excludcd from the federal franchise in 1934 but had [he vote resrorcd ro them in 1950. Metis were always considered citizcns able ro vote in fcdcral and provincial elections. Indians also had resrricred auus ro legal rcn~cdies.For example, sec Section 141 o f thc lndian Art 1927. RS.C. 1927. c. 981 which rad: Every person who, wirhour the consent o f [he Superintendent General cxpraxd i n wridng, rcceiva, obtains, solicits or requests from any lndian any payment or conrriburion or promise ofany payment or conrriburion for the purpose o f raisinga fund or providing moncy for the prosecution ofany claim which rhe rribc or band o f Indians ro which such lndian belongs, or ofwhich he is a rncrnbcr, h s or is represented to have For rhe recovery o f any claim or money for the bcncfir o f said tribe or band, shall be guilty o f an offence and liable upon summary conviction for a c h such offence to a pendry... For comnienrary, see Brian Tirlcy, A Ndrmw Vision: Duncan CnmpbcU Scan and rbc Adminismation oflndran Affairs in C a n a h (Vancouver: U B C Press. 1986) at 59. 21 Sce Volume 3, Garbm'ng Smngrh, The Repon of rhc Royal Comminion on Abon'gind Pcoples ( O r n m : Supply and Scrvica. 1996). 22 The most promincnr example o f Indigenous concerns being concealed by Gnadian fcdcnlism is found in the carliest, and ar one rime leading, use ofSr. G r b n i n n MiffingandLumbcr Company v. Tbc Quccn (1888) 14 App. Cas. 46 U.C.PC.). 23 John Borrows, Rrcovcring Canada: The Resurgcncc of Indigcnour h w , (Toronro: University o f Toronro Pras, 2002). 24 Borrows. supra nore 5. 25 The lndian Acr. Srandtcs of C a n a h 39 Victoria, c. 18.. now as mended. R.S.C. 1985. c. 1-5.

26 I n 1920, the depury superinrcndcnt of lndian A K ~ i r s(rhe highesr non-elecred official dealing wirh l n d ~ a n stared "Our objcctive is to conrinuc unril rhere is nor a single lndian i n C ~ n a d a char has nor been absorbed into the body poliric and there is no Indian quesrion, and no lndian Dcparrmenr, rhar is the whole object o f this Bill": Duncan C. Scort, deputy supcrinrendenr general o f Indian affairs, testimony before rhc Special Cornmirrcc o f rhe House o f Commons examining the Indian Acr amendments o f 1920. National Archives of Canada, Record Group 10, volume G810, file 470-2-3, volume 7, pp. 55 (L-3) and 63 (N-3). 27 Secrions 20 ro 41 o f rhe Indian A n is largely concerned wirh real property on lndian raerva. While rhc Indian Act d o a nor Jlow for the alienarion o f rcscwarion land ro non-Indians, ns undcr rhe provisions o f the GrnnalAllomenr Act i n rhe United Srara 24 St. 388 (1887). ir did arrernpr ro converr collcctivcly held lndian land ro individual ownership. Forrunatcly, rhe Acr has nor always been successful i n convening lndian lands to individual ownership, a s many people srill hold rheir land undcr cusromary pr~ctices. For u s a interpreting the Act's sccrions dealing wirh individual land ownership scc Shin Imai, Tbc 22000 Annorared Indian Acr and Aboriginal Conrrirutio~lRovuiom (Toronro: Carswell, 2000) at 5&79. 28 Section 74 ro 86 o f thc Indion Act d d wirh rnarrcrs o f governance; see Imai, ibid ar 103-1 21. 29 Douglas Cole and Ira Chaikin, An Iron Hand Upon the Aoplc Tbc LIlw A p i m r rhc Pothtrh on the Norrhwnt C o a t (Vancouver: Douglas & Mclntyre, 1990), pp. 5-13; Karhcrine Perripas,

Smrring rbr 7 % That Bind: Gourrnmrnt Reprrrrion of Indigrnour Religious Cercmonio on tbc Prairifi (Winnipeg: Universiry o f Maniroba Press. 1994). ( M o n r d : McGill30 Sarah Grrcr, Lost Harucsts: Pmirir Indian Fannm and Goucrnrncnr P o l i ~ Quccn's Prcss. 1993). Pcrcr D. Uiu, Dmlopmnrr ofAborigiMl Propb'I Communitia (North
York: Caprus Prw, 1991). 31 Royal Commission on Aboriginal Peoples, Gathering Strrngrh. I/ohrmr 4: Reporr of rbc R ~ a l Commrsrion on Aboriginal Pcoplrr (Orrawa: Supply and Services, 1996) ar 24-34; Larry Gilberr, Entirkmrnr w Indian Srnrus and Mcmbcnbip Codcr in G n & (Toronro: Camell, 1996); F. Laurie Barron, "The lndian Pus System in the Canadian War. 1882-1935". Prairie Forum 131 I (Spring 1988). pp. 27-28. 32 Forrunatcly, many o f rhc lndian agents at Capc Croker were very incffectivc, as rheywcre absentee adminisrratorr, suffcrcd from subsrance abuse and rhus werc incapable of performing rheir duties, or were nor able ro sccure the cooperation o f rhc cornmuniry in rhcir etTorrs. lndian agents werc removed from lndian band council structures in rhc 1960's. 33 For an account o f Charles Kegedonce Joncs efforts see Borrows. supra note 5 at 291-354.

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moorage for the few fishing boats beginning to operate this time of year. In the summer it would shelter a few more vessels, as sailboats from around the Great Lakes would gather every weekend. Taking it all in he thought that the view here was probably nor that much different from when his great-Mishomis stood there. Except for the big white water tower below the second bluff, he imagined it looked much the same. He was glad he came home for the weekend. It was good to be here, and to have the land trigger many memories. He had not remembered those early times in the cabin for quite a while. He also had forgotten how jarring his experience of first year law had been. H e had gotten somewhat used to its ways through graduate school and teaching these past few years. Now, thinking of these experiences in a fresh light turned his mind back to his dream from the night before.34 His conversation with his grandparents this morning had bcen helpful too. He again wondered how the four hills related to his life and to the things he was doing at the law school. He h e w the issue of Indian agency was somehow important. Hc also kncw that many legal issucs played a powerhl role inhibiting and unburdcning the powcr of choicc and accountability on the reserve. H e wanted to trace their connections. In his mind he reviewed the legal history he had bcen teaching in his classes. In so doing, it was a little like seeing the first hill again; a lor of broken hopes piled at the bottom and a great deal of immaturity. Only a few issues were successful in rising to the top. Hc considered the Supreme Court of Canada's virtual silence on the i s s ~ ~ of c Aboriginal peoples' place in sociery for ncarly 100 years. By ignoring issues of Indian agcncy in such a stark way, this institution tacitly reinforced others' claims to power over Indians. It cnabled others to pull them down. I t wasn't until 1973 whcn the Court relcased Calder v. TheAnorney General ofBritish ~ o l u r n b that i ~ ~ the situation started to changc. The Court's recognition that Aboriginal titlc was a justiciable right and not solely a moral or political concern3' finally raised the issue o f lndian agency to the level of public consciousne~s.~~ It elevated the notion that Aboriginal peoples had unextinpished leg4 interests that could potentially protect them from the types of abuses expericnccd during the first one hundred years of confederation. Furthermore, the Calder case also suggesred that Aboriginal rights had as their source an authority that originally lay outside of the common law and constitutional legal structures. This unique source was "the fact ...chat when the settlers came, the Indians were thcrc, organized in societies and occupying the land as their forefathers had done for c e n t ~ r i e s . " ~~ As such, the Court proffered the notion that Aboriginal rights did "not depend on treary, executive order or legislative enactment," as most freedoms did. They were "pre-existing rights" that had their own logic "indigenous to their culture [though] capable of articula-

tion under the common law."39The effect of the Cnlder decision for Aboriginal peoples was profound. Indigenous legal and political issues arosc to occupy a permanent place in Canada's political and legal landscape.40Much like those of his dream, they had taken a few feeble steps forward. He then rcflccred how, not quite ten years later,41this trajectory continued. Indigenous issues rose even higher within Canada's legal terrain when they were recognized and f i r m e d in section 35(1) of the Conztitution A a 1982.~' H e thought of all the fuss this had caused for something that should have been rhere from the start. The open-ended nature of its wording, "the existing Aboriginal and rreaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed," left much room for subsequent negotiation and intcrpretation. The politicians tried first, through a series of constitutionally mandated first minisrcrs c o n f e r c n ~ c s When . ~ ~ they were in session, he would come home from school each day, turn on thc televis~on, and watch them dance around the table with their fancy, frustrating debates. The Prime Minister, provincial premiers, and the leaders from the four national Aboriginal organizations struggled with one another to give Aboriginal rights meaning. Then after their failure, he was at law school in time to study the Supreme Court's wacershed decision of R v. in 1990. T h e Court then rendered no less than 25 decisions dealing with the rights of Aboriginal peoples in Canadian society in little over a ten-year period?5

arrow''^

34 See John Borrows, FounvordlForcword: Issues, Individuals, Insrirurions, ldeologia (2002) I Indigenous h w Journal 1. f Brirish Colrrmbia (1973) 34 D.L.R. (3d) 145, 119731 S.C.R 35 Cnldrr v. Tbc Anornry Gcncral o 313. 36 Jurisprudence in rhe United Starw is rn~xed on this point, scc UnircdSrarc~u. Sanu Fc Railroad 314 US 339 (1941); Zc-Hir-Ton v. UrtircdSrarn 348 US 272 (1955). 37 S e e Sparrow supra norc 9 at 1104: "11 rook a number of judicid decisions and notably rhc Caldrr wc...to prompr a rcasscssmenr o f the posirion." 38 Cakicr, supra nore 35 ar 156.

39 /bid at 200. 40 The hcr rhar an Abor~ginalpresence niighr be a perrnanenr feature of Canadian socicry is conrmred wirh rhe Court's adoption of the Royal Cornmiss~on's sraremcnr (Rcporr o f rhr Royal Com?niuion on Aborighal Peophj, wl. I , Looting Forward Loohing Back ar 137-91) rhar "dacriba rhe relationship between the fcderal governmenr and Aboriginal people. during rhe period from rhc a r l y 1800's to 1969 ~s one of "displaumenr and assimilation". 41 The Supreme Courr i w l f idenrified this procas and wrote, in Spanow, supra norc 9 ar 1105: I t is clear, then, [hats. 35(1) of rhc ConsrirurionAcr. I982 represents the culmination ofa long and dificult srrugglc in borh rhe political forum and the coum for [he constiturional rccognirion ofaboriginal rights. The strong rcpmenrations of native associations and orher groups concerned with the welhrc of Canada's aborigind peoples made the adoption ofs. 35(1) possible... For a d~scwion on rhc rise of Aboriginal advocncy since the early 1970's see Michael Arch, 0 1 i r Homc and Nativc h n d (Toronro: Univeniry of Toronro P r a , 1984). 42 The text of secrion 35(1) reads: The exisring aboriginal and rreary rights of the aborigind pmplcs of Gnadz are liercby recognized and afirmcd. 43 Secrion 37 of rhc Consrinrrion Act, 1982, mandared rhac conferenca, and four wcrc held berween 1983 and 1987. For a discussion x e Karhy Brock. The Politics of Aboriginal Self-Governmenr: A Canadian Paradox (1991) 34 Canadian Public Adminisrrarion 272. 44 Sparrow, supra note 9. 45 Orcgon/ack Cmck Indian Band u. Clnadian Norional Railwaj (19901 1 S.C.R. 117; R u. Honcman, [I9901 1 S.C.R. 901; R. u. Sioui, [I9901 1 S.C.R 1025; Sparrow supra norc 9; Mirrhcfl u. Pepir Indian Band, (19901 2 S.C.R. 85; Onrario (A.G.) v. Bcar fshnd Founhrion [ 199 1 I 2 S.C.R. 570; WiILimm u. Canrrdn (19921 1 S.C.R. 877; Quebec (A.G.) v. Candda (N.E.B.) [I9941 1 S.C.R. 159; R v Howard, [ I9941 2 S.C.R. 299; N ~ r i u rWornrn i Ar~ociariorrv. Gnadd, [ 19941 3 S.C.R. 627; C P u. Manqui Indian Bond (19951 1 S C.R. 3; Blurbcny Rivcr Indian Band v C a n a h (19951 4 S.C.R. 344; R. v. Badgn, [I9961 1 S.C.R. 771; R. v. Lcwir, (19961 1 S.C.R. 921; R v. Nikal, (19361 1 S.C.R. 1013; R v. I/an&rprrr (19961 2 S.C.R 507; R v N . T C . Smokcbousc, (19961 2 S.C.R. 672; R. v. Clnltronr [I9961 2 S.C.R. 723; R. v. Pamajnuon, [I9961 2S.C.RttZl;R v. Adnms, (199613S.C.R. l 0 l ; R u. Cow, [I9961 3S.C.R. 139: Opcrchc~abru.

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T h e decisions swirled through his mind. H e had read them so many times. He tried to order their effects. On the one hand, he saw how Indigenous righ~s had climbed to national consciousness. In Sparrow, the Court recognized that existing Aboriginal rights could include fishing for food, social, and ceremonial purposes. T h e Gladstone case afirrned that in certain instances, where evidence warranrcd, Aboriginal peoples could claim rights to fish for commercial purposes. Blueberry River Indian Band v. Can& recognized a fiduciary duty o n the part of the government t o treat Aboriginal lands with trust-like precision and to act towards them in good faith. Delgamuukw v. British Colunlbia affirmed that Aboriginal title included the exclusive right to use unextinguished traditional territories for a wide variety o f purposes for the benefit of the community. R. v. Badger, R. v. Sundown and R. y. Marshall ( I and 11) lifted treaty rights above non-treary uses of lands and resources to protect agreements negotiated by Indigenous peoples that are often over rwo-hundred years old. These and other cases re-inscribed Aboriginal issues over a Canadian legal structure that had built over the country's Indigenous systems. H e saw promise in thcsc developments. They contained a view of Indian agency rhar was respectful of the principles he was taught as a young boy. O n the other hand he saw how much in these cases thar was not right. I l e could catalogue how the same decisions that Aboriginal rights simultaneously hid strong currents chat threatened rheir erosion. For example, he knew rhar Sparrow outlined a test that allowed for so-called justifiable infringements of Aboriginal rights. Gkzdstone extended this rest to allow for thc infringement ofAboriginal rights in cases where the interests (not the Constitutional rights) o f other Canadians might be affected. R. v. Badger and R v. Mar.rhaU (I and 11) applied this infringement rest to treaties. IHe thought i t was wrong that non-Aboriginal governments were given power to unilaterally reduce treaty rights. Treaties, as negotiated instruments, set out the limiu of each party's power over the other in the agreement. They werc based o n murual consent. This principle was undermined if the government could act alone. H e remembered how his friend Mary-Ellen had tried to persuade the Courr to this position when she appeared before them in Badger. H e was sad she had not been able to convince them. T h e n he reflected o n how Delgamuukw had further corroded Aboriginal rights, despite its high promises. H e had even written about this in a law review article." T h e Delgnmuukzu Courr suggested that a broad

range of governmental objectives could justifiably infringe Aboriginal rights. As h e taught numerous times, the Court wrote that: The development of agriculture, forestry, mining, and hydroelectric powcr, the general economic developmenr of the interior of British Columbia, protection of the environment or endangered species, the building of infrasrructure and the settlcmcnr of foreign populations to support those aims, are rhc kinds of objecrives thar ...can jusrify the infringement of [A]boriginal title".47 T h e list of objectives that could wash away constitutionally recognized Indigcnous rights was sweeping. A litrle like the sand at his feet; like the people o n the first hill. In some ways thcsc cases threatened the very core of Aboriginal rights ar constitutional rights if they could be overridden by the non-constitutional interests of other C a n a d i a n ~ . ~ ~ Despite the strengthening spring sun, he was beginning to get cold standing o n the shore. Just off the edges hung the snow and stiff wind. H e made his way back around the bay. Pausing at the Agent's old house he met the dogs once again. Ahnimoosh. T h e story of rheir crcation always fascinated him. C u t down from a giant and then grown from the earth for the protection and companionship of humans. H e decided to knock o n the door of the old Agent's house to ask about dl the dogs around rhe place. H e was also curious to see inside. As he unlatched the metal gate at the front a few inquisitive faces lifted their heads. A grey, wire-haired husky and a mixed lablbeagle ambled over. Thc beagle nuzzled him as he walked up the path. Approaching the porch he noticed a malamute1 shepherd cross lay sleeping o n the step. H e stepped over it and tapped on the door. After some commotion inside, a large Springer Spaniel answered the door: "Can I help you?" it said. T h e man couldn't answer. H e srood staring. "Can 1 help you?" it repeated. T h e man looked around to see what kind of trick this was. H e wondered if someone was fooling around with a speaker inside. H e couldn't tell where the sound was coming from, but to test he said, "1 was just thinking about your house and the person who once lived here. 1 was wondering if I could come in?" When he finished speaking the dog stared back at him. T h e man tried peaking around the door to see where the voice would come from if it spoke again. It was too dark. "Come back tonight; we're having a party. 1'11 show you around then." With chat the dog walked back inside and the door closed. H e couldn't figure it out. T h e man srood thcre wishing he wouldn't have stopped at the house. Now he would have to come back tonight. H e didn't want people teasing him. H e also didn't want to be rude and turn down someone's hospirality. Besides, he was curious to see what the place looked like inside, to find out who had spoken to him.

Cutrada, (19971 2 S.C.R. 119; St. Mu7s o Cranbooh, [I9971 2 S.C.R. 657; Dclgamurrkw u British Colrrmbia [I9971 3 S.C.R. 1010; R u. Wlliams, [I9981 1 S.C.R. 1128; Union ofNcw Brrrnrruick Indians u. New Brumwirk (Minster of Finarce), [I9981 1 S.C.R. 1161; R. u. Sxutdown. [I9991 1 S.C.R. 393; R u G b d u t , I19991 1 S.C.R. 688; Corbien a Canada [I9991 2 S.C.R. 203; Wnrbank Finr N~fiorr u. Bririrh Columbia Hydro. [I9991 3 S.C.R. 134; R. u. Manhall I , [I9991 3 S.C.R. 465; R. u Marsbafl (10, [I9991 3 S.C.R. 533; R. u. Web. [2000] 1 S.C.R 207; Musqraum Indian Band u. Glorr [2000] 2 S.C.R. 633; Louclocr u. Ortmrio, [2000] 2 S.C.R; MitcbcU n M.N.R. [2001] 1 S.C.R. 91 1; Omyoor Indian Band u. Oliucr [2001] 3 S.C.R. 746; Kirkarb Indian Bond u. B.C. [2002] 2 S.C.R. 146; Ross Riun Dena Corrncil Band u. Conada 2002 S C C 54; W~tuu~krrrn Indian Bond r,. Canuda [2002j S C C 79. 46 John Borrows, "Sovereignty's Achemy: Dclgamuukw u. British Columbia" (1999) 37 Osgoode 537. Hall Law R ~ v i e w

47 Ibid. ar 11 11 [ernphvis i n original]. For cornmenray. see Grherine Bell. "Ncw Directions i n rhc Law ofAboriginal Righrs" (1998) 77 Canadian Bar Review 36 ar 62. 48 For a critique of [he infringrmenr of consrirurional Aboriginal righrs, see Kenr McNeil, "How Can the lnfringcmcnts o f the Consriruriond Rights of Aboriginal Peoples Bc Jwrificd?"(1997) 8 Consriruriond Forum 33.

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As night fell he found himself back at the door. He knocked as before and the door opened. This time no one welcomed him. He peered inside. It was still too dark to see much. "Can I come in?" he called. No sound but some tinny heavy metal music and the rustling of dogs inside. After waiting for a couplc of minutes he let himself in. Passing through the narrow hall, he felt somc kind of hair or fur brush against both his arms. It was a little disconcerting. Looking around he could barely make out what looked like pelts or long animal skins hung on rungs o n the wall. As he made his way Further inside he found himself in a large livingldining room with about fifieen or twenty dogs. He noticed they were of all types, no two alike. T h e only thing similar between them was that none seemed to have any tails. Looking around thc room he called out again but no one answered. A few animals jumped up and barked, bur other than that, nothing. He showed himself around the house: the kitchen, bcdrooms, and bathroom. The place was a mess. He had to admit it had bcen an impressive home at one time. But he saw nothing but dogs; some were even in the closets. In fact, aside from the absence of people, the place had the distinct feel of a parry. The atmosphere was somehow charged with encrgy, and the dogs seemed to be getting more rambunctioi~s and excited as timc passed. After half an hour of h i s the man started to tire of waiting for someonc to come. He was about to quietly leave when the dog beside him lified its back right leg and let go o n the chair on which he sat. Whcn it had finished the dog looked at him and panted. It almost seemed pleased with itself. It was obvious to the man that these dogs needed some discipline. They had no respect for orhers' property. Wherever the owner was, he thought to himself that he could not sit here and let the dogs destroy rhe house. Wondering what to d o to clear them out, a thought came to him. He jumped to his feet and yellcd out: "fire! fire! fire!". He then went running through thc house waving his arms trying to frighten them away. It seemed to be working. They all poured out of the various rooms and Funneled through the front hall. There was a bottleneck there for a momcnt. When thc man got closer it looked as though the dogs were jumping up and grabbing the furs that lined the walls. In the confusion each took whatever it could get. When they eventually cleared the blockage, he managed to chasc the last of them out into the yard. It was only then that he thought he could make out what the d o g had in their mouths. It looked like each had a different size and shaped tail. He realized the hall had been Full of tails; they had hung them up when they went in. With all his yelling the dogs had grabbed whatever tail was the closest to them as they ran through the hallway, and then quickly scattered in all directions. In all the confusion they gave no thought to whose tail was whose. He wondered if that was the reason dogs always checked each other from behind whenever they greered. They seemed to havc an obsession with the practice, as if they had lost something char was rightfully theirs. Perhaps they were seeing if the other had mistakenly taken their tail.4"
49 1 would
like to r h ~ n k His Honour, Judgc Tony Mandamin o f G l g a r y Criminal Division o f the

James (SakCj) Youngblood Henderson*

lmtitutional reform in Canada has lagged behind constitutional reforms and adjudication. The historic structure and roles ofArtornry General have hadfinahmental impacts on aboripnal and m a y rights in the constitution of Can&. The demand for constitutional supremacy, the comtitutionaljduciay duty of the Crown towardAbon'ginalpeopIn, and the necessity of reconciliation of aboriginal and treaty rights with other constitutional powers requires the creation of an Aboriginal Attorney General These mmtitutional reforms and judicial in~rpretationhad generated a conjlct of interest in the existing structure a d design ofAttornty Generalr in Canada. The Supreme Court h a captured the essence of the conflict and internal instability; it h a provided the reversionary analysis and jusr$cationfor the need of institutional rcform. This paper analyzes the intetpretative principles and why to argrre for the creation of an Aboriginal Attornry General as the missing agent of constitutional andjusrice refnn.

LJZ rCforme institutionnelle au Can& n 'dpar progress6 ausri vite que les rrt/onnes comtitutionnelks et b dkisions judiciairej. Historiquernent, la structure et les r6les A s procureurs giniraur onr eu u n impact fondamental sur l;~finnationdPs droirs autochtones et des droits dkoulant de naitis dans la constitution canadienne. La demande de suprimatie constitutionneLe, le devoir fiduciaire constiturionnel de la Couronne envers les pel(ples autochtones er le bejoin de rkconcilier Ips droitr autochtona et 1s droits dkoulant de maitPs aver Irr autrespouvoirs constinrtionnelr nPcessirent la criation d'un procureur giniral autochtone. Ces rfformes con~titurionneUeset l'interpritation judiciaire avaient cr// un con& d'inthit ahns la structure et le mod& t pronrreurs gkniraux arc Canuda. La Cour Suprtme existants d a captt I'essence d u confit er & I'imrabilid interne; ellc a p r h t k l'analyse rhisionniste et la jurt$cation du besoin de rCforme institutionnelle. Cet article analyst les principes d'interpr6tation et fes raisons militant en favnrr de la crkation d'un procureur gknbral autochtone comme agent manquanr de rforme consrirutionnelk et judiciaire.

Research Director, Narive Law Centre o f Canada, College o f Law. Univcrsiry o f Slshrchcwnn. Guidance provided by abab;nrUi, rndhcdo, and niskorn, dthough m y purposive, irerarivc. and discursive inrerprcration.

I assume Full raponsibility for

Provincial Court and o f rhe Peacemakcr (Tsuu T i n a Finr Nation) Court for sharing with me rhe story o f "Nanaburh and rhc Dogs." on which the event at the end o f chis arridc is bzcd. Judge Mandamin is from rhc Wikwcrnikong First Narion, a neighboring band ro G p c Croker, also loured on Georgian Bay i n Lakc Huron.

(2003) 22 Windsor Y.B. Access Just.

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