Report from the Indigenous Bar Association Conference

By Nicole Myers (1L)

Are legislating and litigating Aboriginal issues effective ways of dealing with the issues facing Aboriginal communities? At the 2009 Indigenous Bar Conference held in Vancouver, litigation and legislation concerning Aboriginal issues was a common theme. As a first year student, I am trying to reconcile my lived experiences with my new knowledge of the benefits and limitations of the law.

In recent years, many cases on Aboriginal Rights and Aboriginal Title have made their way to the SCC. These court cases have cost Aboriginal people millions of dollars. Yet rather than the recognition of Aboriginal Rights, the result of litigation has been to put the burden of proving their curlture in the courts of law on Aboriginal people and this on an individual Band basis. There are approximately 100 Bands in B.C alone and each would be required individually to prove their Aboriginal Rights.

Protection of Aboriginal Peoples’ rights was entrenched in s. 35 of the Constitution Act, 1982, which states, “that the existing aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognised and affirmed”. This entrenchment was seen as a great success at the time, but in its judicial implementation, results have been questionable.

During the first day of the conference, we learned about the Musqueam Nation and its contributions to s. 35 jurisprudence. The Musqueam Nation litigated the Glass, Guerin and Sparrow cases at the SCC. The cost of this litigation is overwhelming and the decisions overall have not solved the conflict but instead set the precedent for the next infringement. What about the Bands that do not live on prime land in Vancouver and do not have enough money to litigate for every right that is violated? Has this lengthy and costly process had positive results for Aboriginal people? Or has it frozen their rights in time, and eroded away other rights?

Also discussed at the conference was the repeal of s. 67 of the Canadian Human Rights Act 1977, by the Human Rights Commission. This section states that “nothing in the act affects any provision of the Indian Act or any provisions made under or pursuant to the Act”. The reason for this repeal has arisen from not the human rights issues on reserves but from the oppressive provisions of the Indian Act. Many women who were not able to pass on their heritage under the provisions of the Indian Act wanted s. 3(1) of the Canadian Human Rights Act to apply to reserves.

In this matter, the Commission will be effectively deciding whether or not Aboriginal Rights are an expression of Aboriginal culture. This will again require Aboriginal communities to prove and justify their customs and values through a process that is being imposed upon them.

Although I am not certain about the alternatives, I am certain that further assimilation, legislation, and litigation are not providing tangible results either for Canada or for Aboriginal people.