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It is commonly thought that those who maintain an originalist outlook are conservative, and that a conservative position opposes the idea of Indigenous rights. However, originalism is not conservative in the sense that it is based on politically conservative views. Rather, originalism is conservative in the sense that it’s focus is to conserve the meaning of constitutions when they were first ratified. Taking this into account, I will argue that originalism is able to provide a different understanding of Canada’s Constitution, as an originalist approach is capable of supporting Indigenous rights and interests in certain circumstances. To illustrate this view, I will start by summarizing the concept of originalism and the modern interpretation of this philosophical perspective. Then, I will discuss how an originalist framework is able to protect and affirm Indigenous rights and interests; this will be done by making reference to constitutional documents such as the Royal Proclamation in conjunction with the Treaty of Niagara, as well as the Canadian Constitution Act of 1982. As well, I will provide reasons as to why originalism could be, in some instances, a more appealing framework in the context of Indigenous issues in comparison to the living tree conception.
The general overview of the originalist perspective entails that all statements within a constitution should be interpreted in accordance with the original understanding of the authors at the time of a constitution’s ratification (Waluchow, 2001). Consequently, originalism involves a wide variety of constitutional theories, as it encompasses a plethora of different versions of originalist approaches. In fact, there are probably just as many versions of originalism as there are critics for the theory. For instance, one originalist may claim that their view is necessarily derived from a more generalized theory of interpretation, and to interpret something in this sense would mean to simply retrieve the original objective at the time of authorship (Waluchow, 2001). A different originalist might claim that interpretation could amount to innovating or creating another version of the original meaning that was primarily enacted (Waluchow, 2001). For the purposes of this paper, I will not be focusing on these two originalist approaches to defend my view. Instead, the originalist approach which I will discuss, in relation to acknowledging Indigenous sovereignty in a constitutional framework, is the approach which entails that the interpretation of the original constitutional meaning can be overridden in regards to extremely rare circumstances (Waluchow, 2001). This particular
The general overview of the originalist perspective entails that all statements within a constitution should be interpreted in accordance with the original understanding of the authors at the time of a constitution’s ratification (Waluchow, 2001). Consequently, originalism involves a wide variety of constitutional theories, as it encompasses a plethora of different versions of originalist approaches. In fact, there are probably just as many versions of originalism as there are critics for the theory. For instance, one originalist may claim that their view is necessarily derived from a more generalized theory of interpretation, and to interpret something in this sense would mean to simply retrieve the original objective at the time of authorship (Waluchow, 2001). A different originalist might claim that interpretation could amount to innovating or creating another version of the original meaning that was primarily enacted (Waluchow, 2001). For the purposes of this paper, I will not be focusing on these two originalist approaches to defend my view. Instead, the originalist approach which I will discuss, in relation to acknowledging Indigenous sovereignty in a constitutional framework, is the approach which entails that the interpretation of the original constitutional meaning can be overridden in regards to extremely rare circumstances (Waluchow, 2001). This particular
approach to originalism maintains some aspects of traditional originalist thought, while also allowing for some leeway; this view is most evident in cases where there are considerable changes in the views of the public, especially in regards to issues surrounding political morality (Waluchow, 2001). The main idea with this view is that, unless there are very good reasons for changing a constitution, the constitution should remain unchanged (Waluchow, 2001). In considering the Royal Proclamation together with the Treaty at Niagara, this originalist approach was utilized. Precisely, the original draft of the Royal Proclamation revealed how the English had failed to comprehend some of the more diplomatic fundamentals which the First Nations required, according to their constitutional relationship. In particular, the initial draft of the Proclamation had not incorporated the First Nations understanding of their relationship with the British. Specifically, the Proclamation’s initial framework implied that newly arrived colonists were not a threat and should therefore not be feared (Burrows, 2013, p. 160). At the same time, the British were looking to increase their economic and political power relative to that of the First Nations and other European powers; the British therefore applied divergent notions within the Proclamation in stating that no “dominion” or “sovereignty” would be exercised over the First Nations, despite the fact that colonial enterprise would require an expansion of the Crown’s authority over the First Nations territories (Borrows, 2013, p. 160). In these ways, many statements within the original document were antithetical to the First Nations perspectives of the parties’ relationship to one another and the land. Ultimately, the wording used in the first draft of the Proclamation made it unclear if the First Nations really did have a sense of political power required to exercise their own autonomy (Borrows, 2013, p. 161). Since the wording in the Royal Proclamation was ambiguous, and because the document had been drafted with a preference for colonial power, there were enough justifications to change certain aspects of this constitutional document. Essentially, the Royal Proclamation became a Treaty at Niagara as it was presented to the First Nations for affirmation, which the First Nations ultimately accepted and consented to (Borrows, 2013, p. 161). The significant change which was applied to this constitution involved having both parties establish a relationship by making promises using methods aside from written words, which the First Nations understood relatively well (Borrows, 2013, p. 161). Essentially, communication would be established in the form of either Wampum belts or oral statements, which many First Nations still use in Canada today to symbolize their political and legal identities. Overall, the modern originalist approach here is evident, as the first draft of the Royal Proclamation was a rare circumstance in dire need of constitutional change. As well, the Royal Proclamation remains entrenched in Section 25 of the Canadian Constitution Act of 1982, as it highlights the need to recognize and affirm Aboriginal rights. This entrenchment sustains the traditional originalist motive by way of conserving the original meaning of the Royal Proclamation when it was ratified as a Treaty at Niagara.
It could be argued that this example of constitutional change in the case of the Royal Proclamation at the Treaty of Niagara is one that involves the application of the living tree conception, though this is not necessarily the case. This is based on the fact that the living tree conception tends to facilitate the most expansive conception of judicial review to ensure the effectiveness of its role regarding democratic processes (Huscroft, 2006, p. 9). Although the living tree conception is considered to be capable of growth and expansion within its natural limits, the question remains as to how much change the living tree conception allows for within a constitutional framework. While the living tree conception may be capable of being used in a manner that is principled and constrained to the original notions of a constitution, a constitution which adopts a living tree framework is still at the risk of being applied too expansively or inconsistently in practice; this is based on the fact that judicial decision making is essentially more liberal and less restrained in this framework (Huscroft, 2006, p. 9). In contrast, the originalist approach discussed above involves specifying a strict limitation in amending the constitution by outlining that a constitution can only change if there are considerable changes in the views of the public regarding issues that surround political morality. In this sense, this originalist framework is more effective than the living tree conception, as it reduces legal indeterminacy while also remaining slightly open to change in regards to extreme circumstances. In contrast, the living tree framework doesn’t appear to have established such a limit. This is not to say that the living tree conception is entirely problematic. In fact, its application is capable of making sufficient changes to constitutions that work towards the public morality, as seen in the Persons case. However, the living tree conception still poses the risk of establishing a series of decisions which may inevitably lead to a result that goes way beyond anything that was originally contemplated when a constitution was drafted (Huscroft, 2006, p. 10). Joseph Raz similarly explains why a stable constitution is more preferable over a constitution that is more susceptible to large-scale changes, as he writes: “Stability does not amount to a rejection of change, but creates a reason to prefer continuity to change, unless there are really good reasons for the change. Stability adds to the main and powerful conservative argument: While it is possible to predict the direct consequences of small changes in legal and social practices, changes that take place within existing frameworks and do not upset them, it is impossible to predict the effect of radical, large-scale changes. They are liable to affect the legal and social framework, which constitutes the background conditions that make predictions of social events possible” (Raz, 2009).
Raz’s argument is crucial to understanding the fact that rapid social change or changes in societal views do not always result in positive outcomes. Specifically, a living tree conception may enable the public morality to shift in the wrong direction if the public finds it justifiable to further circumscribe the rights of groups that are already marginalized in society. For instance, it is important to consider how Canadian society has significantly changed since the ratification of legal documents that have recognized Indigenous rights and interests, such as the Royal Proclamation and Canada’s Constitution Act of 1982. If a constitution is meant to be read in a progressive manner so that it could adapt to the evolving standards of society, then the original rights which were previously enshrined within a constitution are susceptible to large-scale changes. For example, if a valid treaty has affirmed the Indigenous right to hunt food on land, a change in societal standards may impact this right; to hunt for food could essentially be interpreted as gathering fruits and vegetables if consuming meat is no longer a valued standard in society. Despite the fact that this example is admittedly exaggerated, there are real-life instances where the Canadian courts have altered or extinguished the Indigenous rights that were previously enshrined within treaties or constitutions by way of radically changing the contents within constitutional documents. Consider the famous landmark case of R v Van der Peet, where Dorothy Van der Peet, a member of the Stó lō First Nation, was charged with selling salmon she had caught under the food-fishing license (Hanson, 2009). As an Aboriginal person, Van der Peet argued that her right to fish was protected under Section 35 of Canada’s Constitution Act of 1982. However, the Provincial Court ruled that her right to sell fish was not protected by Section 35, as the court’s interpretation of Aboriginal rights did not include the right to sell fish. When the case was brought to the Court of Appeal, this court similarly ruled that the selling of fish was not considered to be integral to the Aboriginal culture. And in 1996, the Supreme Court of Canada upheld the ruling made by the Court of Appeal (Hanson, 2009). Although the Stó lō First Nation has engaged in the traditional practice of selling fish to other Fish Nations for centuries, the courts believed that selling fish did not amount to being an “existing” Aboriginal right under Section 35 of the Constitution Act. Additionally, this ruling resulted in the Van der Peet Test, otherwise known as the “Integral to a Distinctive Culture Test”, which is designed to further define and specify which activities can be legally declared as Aboriginal rights. Ultimately, the test had established ten criteria which must be met for a practice to be protected as an Aboriginal right pursuant to Section 35 of the Constitution Act (Hanson, 2009). Overall, the process of further defining Aboriginal rights on behalf of the Canadian courts had not only altered the original meaning of the Aboriginal rights that were defined in the Constitution Act, but had also extinguished some of these rights at the point of definition. Taking this example into account, it isn’t necessarily clear that a living tree approach is always the correct approach in regards to protecting the rights and interests of Indigenous people. This is not to say that a constitution which maintains a living tree framework is incapable of making small changes, or that it is unable to remain within a constitution’s natural limits. As well, it is possible that the modern originalist approach is also capable of further marginalizing certain groups in society. However, the difference between these two frameworks lies in the fact that the modern originalist approach has expressed a clear limitation in changing a constitution, thus there is less of a risk for there to be frequent large-scale changes made. As well, the originalist approach does not maintain the same expansive conception of judicial review, based on the fact that this approach still sustains traditional originalist motives by retrieving an interpretation that existed at the time of authorship. In this sense, the contents within a constitution are less likely to be further defined and specified by judges through an originalist lens. In contrast, the living tree conception does not necessarily express any clear limitations in regards to constitutional change, and allows judges to have more freedom in the judicial decision-making process. In these ways, a constitution which utilizes the living tree approach may be more susceptible to radical change, as seen in R v Van der Peet.
It is also commonly argued that originalism is a perspective which perpetuates discriminatory constitutional interpretation. While there is non-arguably a horrific and violent history that exists between Indigenous people and the Canadian government, this relationship is not necessarily consistent with an originalist perspective. For example, many believe that the Royal Proclamation of 1763 was only a unilateral decision on behalf of the Crown, and that the Royal Proclamation was a legal document that was conceived by way of colonialism, which essentially eliminated the rights and interests of Indigenous people. However, the Royal Proclamation should be read in conjunction with the Treaty at Niagara; in taking these two historical documents together, one can conceptualize that the Royal Proclamation involves no overreaching of sovereignty, as both sides involved had consented in regards to their territories. As well, the Royal Proclamation is still valid in Canada, as it emphasizes the need to exercise Indigenous autonomy and sovereignty. In particular, the Royal Proclamation is enshrined in Section 25 of Canada’s Constitution Act, which guarantees that nothing can diminish or terminate the Aboriginal rights that were made officially valid when the Proclamation was ratified at Niagara. In this sense, the claim that originalism places severe structural limits on Indigenous rights is not necessarily true in all circumstances. In fact, there are landmark cases where Indigenous rights have been recognized and protected using an originalist approach; the Tsilhqot\’in Nation v British Columbia is one of those cases. Essentially, a semi-nomadic group of six bands had objected to the granting by the British Columbia government regarding a commercial logging license on land, which the Tsilhqot\’in Nation considered to be part of their traditional territory (Milne, 2017). The band then sought a declaration that prohibited commercial logging on their land (Milne, 2017). Despite the fact that the federal and provincial governments opposed the Tsilhqot\’in Nation’s title claim, the Supreme Court of Canada ruled that the appeal should be allowed and that a declaration of Aboriginal title over the land requested would be granted. As well, the Supreme Court of Canada declared that the province had breached its duty to consult the Tsilhqot\’in Nation. Therefore, the duty to consult these bands should also be granted (Milne, 2017). The ruling on behalf of the Supreme Court of Canada encompasses originalist ideologies, as the court had to identify how pre-sovereignty rights and interests could be embodied in common law terms; in determining what constituted sufficient occupation, the court looked to the historical practices and treaties of Tsilhqot\’in Nation. Precisely, the originalist argument on behalf of the Supreme Court was that sufficient occupation to ground Aboriginal title extends back to the parts of the land that were used regularly for fishing, hunting, and exploiting resources, which the Tsilhqot\’in Nation exercised with effective control at the time of the assertion of European sovereignty. The application of this decision involved discerning the continuity between present and pre-sovereignty occupation, and the Supreme Court found that this particular case included sufficient evidence of present occupation on behalf of the Tsilhqot’in Nation that was rooted in pre-sovereignty times. In the final analysis, the Crown was required to not only comply with its procedural duties given by the court, but was also required to justify any incursions on lands with an Aboriginal title by ensuring that the proposed government action is consistent with the requirements outlined in Section 35 of Canada’s Constitution Act, 1982.
There are bound to be disagreements regarding the impact of originalism in the judicial decision-making process. In particular, there are many who are in favour of the living tree conception, as they believe that an originalist framework will result in frozen rights, the dead hand of the past, and the like. As well, there are often debates surrounding the notion of whether an originalist approach is capable of harming the interests and rights of others. While some of these fears are reasonable to consider, given the invariable nature of originalism, there are also cases that could be made in favour of this theory. In particular, some theories of originalism allow for constitutional reform if absolutely necessary; the Royal Proclamation in conjunction with the Treaty of Niagara is a case where such an approach was utilized. The traditional theory of originalism, in the context of Indigenous issues, also recognizes and affirms Indigenous rights by ensuring that historical documents, such as treaties and sections within Canada’s Constitution Act, are preserved for the purposes of maintaining Indigenous interests. In the end, we cannot correct the many wrongs Indigenous populations have experienced throughout Canadian history, but the least we can do is fulfill the agreements and promises that were made in century-old constitutions and treaties. Honouring the meaning of these older documents may represent the root of originalist thought and good jurisprudence, in some circumstances.
It could be argued that this example of constitutional change in the case of the Royal Proclamation at the Treaty of Niagara is one that involves the application of the living tree conception, though this is not necessarily the case. This is based on the fact that the living tree conception tends to facilitate the most expansive conception of judicial review to ensure the effectiveness of its role regarding democratic processes (Huscroft, 2006, p. 9). Although the living tree conception is considered to be capable of growth and expansion within its natural limits, the question remains as to how much change the living tree conception allows for within a constitutional framework. While the living tree conception may be capable of being used in a manner that is principled and constrained to the original notions of a constitution, a constitution which adopts a living tree framework is still at the risk of being applied too expansively or inconsistently in practice; this is based on the fact that judicial decision making is essentially more liberal and less restrained in this framework (Huscroft, 2006, p. 9). In contrast, the originalist approach discussed above involves specifying a strict limitation in amending the constitution by outlining that a constitution can only change if there are considerable changes in the views of the public regarding issues that surround political morality. In this sense, this originalist framework is more effective than the living tree conception, as it reduces legal indeterminacy while also remaining slightly open to change in regards to extreme circumstances. In contrast, the living tree framework doesn’t appear to have established such a limit. This is not to say that the living tree conception is entirely problematic. In fact, its application is capable of making sufficient changes to constitutions that work towards the public morality, as seen in the Persons case. However, the living tree conception still poses the risk of establishing a series of decisions which may inevitably lead to a result that goes way beyond anything that was originally contemplated when a constitution was drafted (Huscroft, 2006, p. 10). Joseph Raz similarly explains why a stable constitution is more preferable over a constitution that is more susceptible to large-scale changes, as he writes: “Stability does not amount to a rejection of change, but creates a reason to prefer continuity to change, unless there are really good reasons for the change. Stability adds to the main and powerful conservative argument: While it is possible to predict the direct consequences of small changes in legal and social practices, changes that take place within existing frameworks and do not upset them, it is impossible to predict the effect of radical, large-scale changes. They are liable to affect the legal and social framework, which constitutes the background conditions that make predictions of social events possible” (Raz, 2009).
Raz’s argument is crucial to understanding the fact that rapid social change or changes in societal views do not always result in positive outcomes. Specifically, a living tree conception may enable the public morality to shift in the wrong direction if the public finds it justifiable to further circumscribe the rights of groups that are already marginalized in society. For instance, it is important to consider how Canadian society has significantly changed since the ratification of legal documents that have recognized Indigenous rights and interests, such as the Royal Proclamation and Canada’s Constitution Act of 1982. If a constitution is meant to be read in a progressive manner so that it could adapt to the evolving standards of society, then the original rights which were previously enshrined within a constitution are susceptible to large-scale changes. For example, if a valid treaty has affirmed the Indigenous right to hunt food on land, a change in societal standards may impact this right; to hunt for food could essentially be interpreted as gathering fruits and vegetables if consuming meat is no longer a valued standard in society. Despite the fact that this example is admittedly exaggerated, there are real-life instances where the Canadian courts have altered or extinguished the Indigenous rights that were previously enshrined within treaties or constitutions by way of radically changing the contents within constitutional documents. Consider the famous landmark case of R v Van der Peet, where Dorothy Van der Peet, a member of the Stó lō First Nation, was charged with selling salmon she had caught under the food-fishing license (Hanson, 2009). As an Aboriginal person, Van der Peet argued that her right to fish was protected under Section 35 of Canada’s Constitution Act of 1982. However, the Provincial Court ruled that her right to sell fish was not protected by Section 35, as the court’s interpretation of Aboriginal rights did not include the right to sell fish. When the case was brought to the Court of Appeal, this court similarly ruled that the selling of fish was not considered to be integral to the Aboriginal culture. And in 1996, the Supreme Court of Canada upheld the ruling made by the Court of Appeal (Hanson, 2009). Although the Stó lō First Nation has engaged in the traditional practice of selling fish to other Fish Nations for centuries, the courts believed that selling fish did not amount to being an “existing” Aboriginal right under Section 35 of the Constitution Act. Additionally, this ruling resulted in the Van der Peet Test, otherwise known as the “Integral to a Distinctive Culture Test”, which is designed to further define and specify which activities can be legally declared as Aboriginal rights. Ultimately, the test had established ten criteria which must be met for a practice to be protected as an Aboriginal right pursuant to Section 35 of the Constitution Act (Hanson, 2009). Overall, the process of further defining Aboriginal rights on behalf of the Canadian courts had not only altered the original meaning of the Aboriginal rights that were defined in the Constitution Act, but had also extinguished some of these rights at the point of definition. Taking this example into account, it isn’t necessarily clear that a living tree approach is always the correct approach in regards to protecting the rights and interests of Indigenous people. This is not to say that a constitution which maintains a living tree framework is incapable of making small changes, or that it is unable to remain within a constitution’s natural limits. As well, it is possible that the modern originalist approach is also capable of further marginalizing certain groups in society. However, the difference between these two frameworks lies in the fact that the modern originalist approach has expressed a clear limitation in changing a constitution, thus there is less of a risk for there to be frequent large-scale changes made. As well, the originalist approach does not maintain the same expansive conception of judicial review, based on the fact that this approach still sustains traditional originalist motives by retrieving an interpretation that existed at the time of authorship. In this sense, the contents within a constitution are less likely to be further defined and specified by judges through an originalist lens. In contrast, the living tree conception does not necessarily express any clear limitations in regards to constitutional change, and allows judges to have more freedom in the judicial decision-making process. In these ways, a constitution which utilizes the living tree approach may be more susceptible to radical change, as seen in R v Van der Peet.
It is also commonly argued that originalism is a perspective which perpetuates discriminatory constitutional interpretation. While there is non-arguably a horrific and violent history that exists between Indigenous people and the Canadian government, this relationship is not necessarily consistent with an originalist perspective. For example, many believe that the Royal Proclamation of 1763 was only a unilateral decision on behalf of the Crown, and that the Royal Proclamation was a legal document that was conceived by way of colonialism, which essentially eliminated the rights and interests of Indigenous people. However, the Royal Proclamation should be read in conjunction with the Treaty at Niagara; in taking these two historical documents together, one can conceptualize that the Royal Proclamation involves no overreaching of sovereignty, as both sides involved had consented in regards to their territories. As well, the Royal Proclamation is still valid in Canada, as it emphasizes the need to exercise Indigenous autonomy and sovereignty. In particular, the Royal Proclamation is enshrined in Section 25 of Canada’s Constitution Act, which guarantees that nothing can diminish or terminate the Aboriginal rights that were made officially valid when the Proclamation was ratified at Niagara. In this sense, the claim that originalism places severe structural limits on Indigenous rights is not necessarily true in all circumstances. In fact, there are landmark cases where Indigenous rights have been recognized and protected using an originalist approach; the Tsilhqot\’in Nation v British Columbia is one of those cases. Essentially, a semi-nomadic group of six bands had objected to the granting by the British Columbia government regarding a commercial logging license on land, which the Tsilhqot\’in Nation considered to be part of their traditional territory (Milne, 2017). The band then sought a declaration that prohibited commercial logging on their land (Milne, 2017). Despite the fact that the federal and provincial governments opposed the Tsilhqot\’in Nation’s title claim, the Supreme Court of Canada ruled that the appeal should be allowed and that a declaration of Aboriginal title over the land requested would be granted. As well, the Supreme Court of Canada declared that the province had breached its duty to consult the Tsilhqot\’in Nation. Therefore, the duty to consult these bands should also be granted (Milne, 2017). The ruling on behalf of the Supreme Court of Canada encompasses originalist ideologies, as the court had to identify how pre-sovereignty rights and interests could be embodied in common law terms; in determining what constituted sufficient occupation, the court looked to the historical practices and treaties of Tsilhqot\’in Nation. Precisely, the originalist argument on behalf of the Supreme Court was that sufficient occupation to ground Aboriginal title extends back to the parts of the land that were used regularly for fishing, hunting, and exploiting resources, which the Tsilhqot\’in Nation exercised with effective control at the time of the assertion of European sovereignty. The application of this decision involved discerning the continuity between present and pre-sovereignty occupation, and the Supreme Court found that this particular case included sufficient evidence of present occupation on behalf of the Tsilhqot’in Nation that was rooted in pre-sovereignty times. In the final analysis, the Crown was required to not only comply with its procedural duties given by the court, but was also required to justify any incursions on lands with an Aboriginal title by ensuring that the proposed government action is consistent with the requirements outlined in Section 35 of Canada’s Constitution Act, 1982.
There are bound to be disagreements regarding the impact of originalism in the judicial decision-making process. In particular, there are many who are in favour of the living tree conception, as they believe that an originalist framework will result in frozen rights, the dead hand of the past, and the like. As well, there are often debates surrounding the notion of whether an originalist approach is capable of harming the interests and rights of others. While some of these fears are reasonable to consider, given the invariable nature of originalism, there are also cases that could be made in favour of this theory. In particular, some theories of originalism allow for constitutional reform if absolutely necessary; the Royal Proclamation in conjunction with the Treaty of Niagara is a case where such an approach was utilized. The traditional theory of originalism, in the context of Indigenous issues, also recognizes and affirms Indigenous rights by ensuring that historical documents, such as treaties and sections within Canada’s Constitution Act, are preserved for the purposes of maintaining Indigenous interests. In the end, we cannot correct the many wrongs Indigenous populations have experienced throughout Canadian history, but the least we can do is fulfill the agreements and promises that were made in century-old constitutions and treaties. Honouring the meaning of these older documents may represent the root of originalist thought and good jurisprudence, in some circumstances.