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Uncertain Accommodation: Aboriginal Identity and Group Rights in the Supreme Court of Canada

By Dimitrios Panagos
Vancouver, British Columbia: UBC Press. 2016.

In Uncertain Accommodation: Aboriginal Identity and Group Rights in the Supreme Court of Canada, Dimitrios Panagos aims to explain the origins of our present predicament, in which courts are increasingly the site for conflicts regarding the appropriate scope of Aboriginal rights. His goal, in his words, is to “examine where the proverbial train went off the rails… and how to get it back on track” (7). In just 165 pages, he explains how identity came to be the metric of Aboriginal rights in Canada, and the problems this has produced. Instead of asking, “What is it, exactly, that they want?” Panagos reverses the question to ask why Canadians — our governments and courts — have been unable to agree on what Aboriginal rights should entail.

To answer this, Panagos maps the legal and scholarly landscape of recent Aboriginal-state relations, highlighting the large role played by the Supreme Court. He walks the reader through the writing of Section 35 of the Constitution Act and significant milestones in Aboriginal rights jurisprudence since then. While Section 35 established the foundation of Aboriginal rights, it did so without answering the central question of what ‘Aboriginality’ itself actually means. The question “Who are the Aboriginal peoples of Canada?” remains largely unanswered in law, and it is one made all the more pressing in light of the 2016 Daniels decision, which expanded federal jurisdiction over Metis and non-status Indians.

Panagos shows that in case after case, the SCC implicitly employs a Citizens Plus interpretation of Aboriginality: as a collective identity primarily defined by its relation to the state. While successive decisions have expanded the scope of Aboriginal rights, these rights remain, according to the SCC, a product of the sovereignty of the Crown. As such, Section 35 can only protect such ‘way-of-life-rights’ that simultaneously reinforce the relationship between Aboriginal community and the broader Canadian political community.

This citizen-state model definition, however, is not necessarily shared by those making submissions to court, either on behalf of attorney generals or Aboriginal litigants. The discordant implications of this are evident when governments justify the infringement of Aboriginal rights for large-scale resource extraction projects as ‘serving the national interest,’ and encounter indignant and litigious Aboriginal communities.

This means that our current legal framework necessarily precludes the kind of meaningful self-government many Indigenous people and communities desire so desperately. For Panagos, it is unfair to expect them to accept “simply having to hold one’s nose when using Aboriginal rights, [when] for many scholars, the Crown’s sovereignty and title are the very mechanisms that have led to Aboriginal peoples’ dispossession, displacement, and disappearance” (115). The courts’ continued reluctance to move beyond this citizen-state model, and successive governments’ failure to make it law, reflect the unpopularity of defining the current relationship between Aboriginal rights and the state too narrowly.

Panagos follows many in proposing that Aboriginal rights ought to be expressly based on a nation-to-nation model, allowing for the exercise of real self-definition and self-government.  Compared to his otherwise thorough analysis this seems a little hasty, without consideration of its possible real-world implications, particularly for criminal justice.

There is no specific discussion of criminal justice in the book, but given the current implementation of Aboriginal rights in this sphere, there is some question of how a nation-to-nation model might prove a stronger foundation. Gladue services remain poorly funded and rarely used across the country, even as the rates of Indigenous people in custody continues to rise. Indigenous youth account for only seven per cent of the overall population, but make up 41 per cent of Canada’s youth criminal justice system.

When half of all Indigenous people with status live off-reserve, First Nations do not function as the contained, territorial jurisdictions a simple nation-to-nation model presupposed by such a solution. Meanwhile, many of those living on-reserve lack access to even basic rights, such as clean drinking water and equitably funded child and family services. A nation-to-nation model of Aboriginal rights will only serve the interests of Indigenous peoples if it does not stand in for our federal and provincial governments continuing to shirk their responsibility to these communities.

Uncertain Accommodation is a welcome addition to the sometimes-insular world of Aboriginal politics and jurisprudence in Canada. It will be a useful introduction for students and practitioners, in many disciplines, to the range of demands being made by Indigenous peoples and their advocates today. Panagos shows that however unpopular or difficult it may be to figure out how a settler colonial state might also be a just one, we ought to work at least as hard to rebuild as we did to destroy.

University of Toronto

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