Abstract
The Canadian state presents itself as tolerant, anti-colonial and self-critical. Yet, the legal justification for the Crown's acquisition of sovereignty and jurisdiction concerning Indigenous peoples and their lands, relies on the colonial era doctrine of terra nullius which is based on the proposition that Indigenous peoples were sufficiently inferior to enable the Crown to presume that their territories were unoccupied. This paper discusses how the doctrine of terra nullius becomes applied in Canadian law and its limitations as an acceptable proposition at this time in history. It then discusses and evaluates alternatives to that doctrine which have been proposed in various quarters in order to determine the possibilities for the conceptualization and establishment of a political and legal relationship between First Nations and Canada that is post-colonial in its approach and practice.

Gordon Christie
Judicial Justification of Recent Developments in Aboriginal Law

Abstract
Over the last few decades the Supreme Court of Canada has been working out what the constitutionalization of Aboriginal rights entails. Early jurisprudence took a rights-based approach to the protection of these rights, affording them a significant degree of protection from legislative infringement. In more recent decisions, however, the Supreme Court has markedly reduced the degree of protection these rights will enjoy. The judiciary has developed a set of general principles concerning the justification of judicial activism, principles ultimately grounded in a vision of Canada as a constitutional democracy and the role of the judiciary in such a democratic structure. This work examines the ways by which the judiciary might attempt to deploy the principles, and the vision on which they depend, in efforts to justify its recent activism in the realm of Aboriginal rights.

Kent McNeil
Aboriginal Governments and the Charter :Lessons from the United States

Abstract
The debate over the application of the Canadian Charter of Rights and Freedoms to Aboriginal governments remains unresolved. In the author's opinion, insufficient attention has been paid in Canada to the American experience with the application of civil rights guarantees to tribal governments. This experience reveals that for the past forty years American policy-makers and judges have been struggling with this contentious issue, and have attempted to achieve a balance between the protection of individual rights and preservation of tribal sovereignty and traditions. In light of the American experience, the author argues that a simplistic yes or no answer to the Charter's application to Aboriginal governments is inappropriate. In particular, more consideration has to be given to the impact of the Charter on Aboriginal cultures and to the role of Canadian courts in adjudicating disputes that arise within Aboriginal communities.

Mylène Jaccoud
La justice pénale et les Autochtones : D'une justice imposée au transfert de pouvoirs

Abstract
The administration of the justice system within Native communities went through several transformations in Canada. Under the pressures of First Nations' claims, the model of imposition has left room for others based on adapation of practices, participation, consultation and partial power transfers towards Native communities. Such processes of power transfers within the justice field, which started in the 1990's, are part of a more general movement of communitarisation of the penal system or diversion of some conflicts. They are not specific to native communities and limited by several factors, particularly by the founding premisses of the relations between the State and the First Nations, meaning the principle of incorporation of Native Peoples into the law of the State and the socio-economic conditions of Native communities.

Rémi Savard
Les peuples américains et le système judiciaire canadien :Spéléologie d'un trou de mémoire

Abstract
Why are First Nations overrepresented in Canadian prisons ? The habitual answer is that the Canadian justice system is not adapted to Aboriginal cultures. This has given rise to various measures of adjustment, which have not, however, contributed significantly to halt the constant increase of overrepresentation. The author argues that this predicament is rather due to the lack of credibility that the Canadian justice system has in the eyes of Aboriginal peoples, given its involvement in the dismantling of Aboriginal institutions of social control since the middle of the nineteenth century. For this reason, first of all, one must dissociate oneself from certain founding myths of present-day Canada. Moreover, all must be set in motion to allow Aboriginal peoples to reappropriate their political institutions, including their own ways of administering justice. Make no mistake : it is not a question of returning to the past, but rather of moving ahead towards the future.

Val Napoleon
Ravens Garden's : A Discussion about Aboriginal Sexual Orientation and Transgender Issues

Abstract
It is the thesis of this paper that the legal principles within pre-contact Aboriginal legal orders affecting individual and collective rights can be articulated and extended to apply to current-day sexual orientation and transgender issues in Aboriginal communities. The conceptual framework for the paper is that (1) pre-contact Aboriginal societies generally accepted sexual orientation and transgenderism diversity, (2) a consequence of colonialism has been widespread intolerance of sexual diversity, (3) recent litigation and political action have raised the profile of sexual orientation and transgender issues within Aboriginal societies, and (4) Aboriginal people can draw on pre-contact legal orders and employ a critical pragmatic approach to build non-oppressive self-governing nations. The paper argues further that the conflict between collective and individual rights is essentially a false dichotomy. The challenge is to figure out how Aboriginal legal systems can coexist with the western legal system in a way that maintains the integrity of each culture and that protects the rights of Aboriginal gay men, lesbians, and the transgendered.

Book Reviews

Renée Dupuis
Quel Canada pour les Autochtones ? La fin de l'exclusion
Jean Leclair

Duncan Ivison, Paul Patton & Will Sanders (eds.)
Political Theory and the Rights of Indigenous Peoples
Sylvie Poirier

Stuart Hampshire
Justice is Conflict
Leigh Turner

D. Weatherburn & B. Lind
Delinquent-Prone Communities
Maurice Cusson

Irini A. Stamatoudi
Copyright and Multimedia Works : A Comparative Analysis
David Lametti

Joan Brockman
Gender in the Legal Profession : Fitting or Breaking the Mould
Jean McKenzie Leiper

Lynn Mather, Craig A. McEwen and Richard J. Maiman
Divorce Lawyers at Work : Varieties of Professionalism in Practice
Joan Brockman
INTRODUCTION
Andrée Lajoie / Mylène Jaccoud
Guest Editors / Coordinatrices

Aboriginality and Normativity

As 2002 draws to a close, the so-called "Aboriginal question" presents itself with an urgency it has not had since the Oka crisis, and this not only in Quebec and Canada at large, but also at the international level. In Quebec, on the one hand, the signing of the Paix des Braves and the Agreement in principle with the Innu has caused considerable commotion. At the same time, the referendum in British Columbia, the introduction of several Bills at the federal level and the new direction signaled in the Throne Speech have not been received with any less controversy, albeit for different reasons. On the international scene, the creation of the Permanent Forum on Aboriginal Questions has just consolidated years of struggle to affirm the rights of Aboriginal Peoples. These developments have prompted the Canadian Journal of Law and Society to publish this special edition on Aboriginal issues. Our objective is not to intervene as activists in the political forum, - which is not the role of a scholarly journal, - but rather to further the debate by examining it from a critical distance in order to arrive at a deeper understanding of the underlying issues.

Tackling the subject from a global perspective to begin with, we approached Justice René Dussault, co-chair of the Royal Commission on Aboriginal Peoples, - formed precisely in response to the Oka crisis, - for his comments. More than six years after the completion of his report and with many of its recommendations still waiting to be implemented, Justice Dussault once again demonstrated his characteristic generosity and agreed to our request. "The future," he says, "must be built through mutual recognition, sharing and respect." The Commission, however, did not endorse a solution that envisions pluralism outside the Canadian state. Its proposal was for a third order of government, "which seems more realistic to us and would more easily allow for the reconciliation of what Aboriginal people perceive to be their interests and the interests of Canadian society at large."

The desire to reconcile the sovereignty of the Canadian State with the rights of Aboriginal Peoples, a desire shared by many Aboriginal groups and, significantly, by the Courts, brings into question the idea of the acquisition by prescription of the present territory held by the British Crown, the legitimacy of any claims of sovereignty over the territory currently known as Canada, and the colonialist ideology of terra nullius which underpins the sovereignty claim of the Canadian state. This according to Michael Asch, who explains in his article how Canadian law is based on a racist dichotomy between civilized and primitive cultures that is used to justify the territorial sovereignty of the Canadian nation-state and negate that of Aboriginal Peoples. In contrast, anthropological theories of cultural relativism have had their influence on the Courts, inspiring decisions which open the way for the recognition of First Nations' economic and cultural rights (hunting and ceremonial practices, for example), although stopping short of recognizing their rights to political sovereignty.

It is the terra nullius paradigm which Asch challenges, citing the unanimous refutation in anthropology of the idea that any of the peoples originally occupying colonized territories were inferior to their colonizers or incapable of governing themselves. The fact that Canada actively supported United Nations resolutions in favour of de-colonization, makes it unconscionable, Asch states, that Canadian sovereignty continue to be justified according to this doctrine. Critical of the solutions proposed by the Royal Commission on Aboriginal Peoples, he proposes rather that Canadian sovereignty base itself on negotiation with Aboriginal Peoples, taking as a point of departure the fact that Aboriginals were the original sovereign occupants of the land. He affirms the necessity of re-opening negotiations on contemporary treaties and suggests that all clauses ceding rights to territory in historic treaties be voided.

Gordon Christie is also of the opinion that it was not this premise of anterior Aboriginal sovereignty which has oriented the Courts in their decision-making. Guided by the complementary vision of their role in the production of law and their conception of the Canadian state as a constitutional democracy, they have instead opted for conciliation, or perhaps more accurately - reconciliation - between that which they consider to be the two objectives of article 35 of the Charter the presence of recognized ancestral rights and their co-existence alongside the principles of this constitutional democracy. This universe precludes the existence of absolute rights susceptible of creating chaos in Canadian society, and the interests of no single group can exclude those of any others. As a result, the Courts, hesitating to define the content of rights couched as open ended concepts in the constitutional text, have sent the ball back to the government, whom they thus incite to negotiate with Aboriginal groups concerning the modalities of the conciliation of their respective rights. Obviously, this conciliation entails as a pre-condition the acknowledgement by First Nations of the sovereignty of the Canadian Crown, yet there seems to be little evidence that such an acknowledgement exists. …

Under the circumstances, it is very difficult to justify the application of the Charter to Aboriginal governments and that question remains open. However, if the Supreme Court were to decide the question then, according to Kent McNeil, the application of the Charter to Aboriginal Nations, whose values differ from those of the dominant Canadian society, runs the risk of interfering with the integrity of their cultural and political identity. Thus after an in-depth analysis of the "tribal court" system in the United States, he proposes the transposition of this solution to the Canadian context. In McNeil's opinion, there is a pressing need to recognize and facilitate, in collaboration with Aboriginal groups, the establishment of a unique Aboriginal justice system as an intrinsic element of the governmental autonomy which is an essential part of their inherent rights.

It still remains to be seen how all this is to be accomplished, and Mylène Jaccoud demonstrates that the Canadian strategy which envisions the transfer of judicial and police powers to Aboriginal institutions, but operates on the presumption that this system will be incorporated into what already exists, is fundamentally incoherent. In ceding powers while maintaining juridical boundaries and insisting upon cultural adaptation, it oscillates between the model of an autonomous justice system and one of imposed justice. Throughout its history, the Canadian state has preferred to adapt its implementation of criminal law in the Aboriginal milieu, rather than modifying the content of the law itself to incorporate Aboriginal normative principles. As Jaccoud shows, this policy has been justified by essentially racist or culturalist considerations. It is only recently that a structural perspective has begun to orient certain penal policies in the Aboriginal milieu, as some powers have been transferred to Aboriginal communities. Nevertheless, Jaccoud is cautious about seeing this as a generous concession on the part of the Canadian state. There is a generalized movement across Canadian society towards the communalization of criminal justice and the decriminalization of certain conflicts, which goes hand-in-hand with a larger government strategy of public debt-reduction by motivating citizens to take private initiatives to deal with criminality. In the end, as long as the underlying objective of the absorption of Aboriginal Peoples into the legal system of the colonizers is not put in question, it will be difficult to proceed with any real transfer of powers.

It is precisely this racist incorporation into the existing system which Rémi Savard attacks in order to explain the systemic bias of Canadian courts towards Aboriginal people in criminal matters. Echoing Michael Asch, he shows the link between the colonial structure of the Canadian State and the over-representation of Aboriginal people in carceral institutions throughout the history of this continued colonial domination. Savard holds the colonizers responsible for the weakening of normative structures in Aboriginal communities. He illustrates his point by substituting for the supposed "Aboriginal problem" the problem of the colonizers' selective memory. Undertaking what he calls "a speleology of selective memory", Savard examines colonial policies prior to Confederation up to the armed conflicts between the Canadian government and the Métis of the Canadian West. Numerous government commissions throughout history which examined the "Indian problem" strove to restrain if not extinguish the systems of governance of Aboriginal Peoples. Emphasizing that the "real catastrophe is not the over-representation of this particular clientele in Canadian carceral institutions, but rather their very presence therein", Savard concludes that "respect for norms will reach an acceptable level amongst First Peoples the day they have re-appropriated the exercise of governance which our legislators and magistrates have persistently attempted to destroy since 1950."

It is therefore not for lack of a corpus of Aboriginal norms that could be applied, but rather as a result of the destruction of pre-existing normative systems that Canadian law has been able to invade Aboriginal society, as Val Napoleon demonstrates. She provides a concrete example of this in the rules protecting freedom of sexual orientation in Aboriginal communities, notably amongst the Gitxsan before contact with the colonizers. Napoleon reminds us that anthropologists introduced significant cultural biases in their way of interpreting Aboriginal practices concerning sexual orientation. The diversity and above all the complexity of roles, status and sexual identities were either obscured or interpreted as forms of sexual perversion. However, the reinterpretation of historical sources reveals quite to the contrary that diversity, flexibility and tolerance characterized the normative orders of most Aboriginal peoples of North America with respect to sexual practices. The current intolerance that one observes amongst numerous Aboriginal communities with regard to sexual orientation should be viewed, according to Napoleon, as the heritage of colonialism, - a colonialism which in large part destroyed the pluralism of Aboriginal normative orders. The reconstruction of Aboriginal communities requires the establishment of a juncture between cultural practices which preceded colonization and contemporary ones. The normativity of pre-colonial legal orders analyzed from such a critical and pragmatic perspective can nurture, according to the author, Aboriginal efforts to move away from colonial ways of thinking towards a non-oppressive self-determination.

In view of the analyses undertaken here, it is obviously not the objective of the contributing jurists and anthropologists, and still less so for the guest editors of this special edition of CJLS to propose solutions to "the Aboriginal question", or even to partial aspects thereof which have been only touched upon here. Nevertheless, one single issue does continually surface here, namely that of de-colonization and its concrete effects on the formulation of law that is both Canadian and Aboriginal, judicially determined or agreed to through negotiations. As we indicated at the outset, we are happy if this collection of texts can nourish the debate already well underway in many quarters.