Constitutional promises of indigenous recognition: Canada,Vanuatu and the challenges of pluralism

Constitutional foundations and the place of First Nations

The cornerstones of Canada’s constitutional history include an early recognition of the existence and rights of Aboriginal peoples and attempts to centralise colonial authority to infringe on those rights. The Royal Proclamation of 1763 (which followed the Treaty of Paris ³¹ and declared the Crown’s policy on British North America) ³² referred to the reservation of Indian Hunting Grounds in areas not ‘ceded to or purchased by’ the Crown and prohibited acquisition of such land except through Crown processes. ³³ Subsequently, the Constitution Act 1867 (UK), ³⁴ in distributing power between the newly defined Canadian federal and provincial governments, ³⁵ directed legislative authority over ‘Indians and lands reserved for the Indians’ to the new federal Parliament. ³⁶ Reflected in and framed by these constitutional terms, there was a long history of treaty-making and reservation of Aboriginal lands across significant parts of Canada—driven by the colonial objectives of alliance and orderly settlement. ³⁷ Yet First Nation governments long remained somewhat invisible in the constitutional structure (as interpreted and applied). ³⁸ Even the precise status of underlying Aboriginal rights to land remained uncertain for many years. ³⁹ The Supreme Court only clearly confirmed the existence of ‘Indian title’ and its common law source in the Calder decision of 1973. ⁴⁰

Discussion of constitutional reform began soon after confederation, but focused for many years on Britain’s control over amendment processes. Yet by the late 1960s, discussion had turned to a more significant patriation of the Constitution and entrenchment of a bill of rights. ⁴¹ Importantly for present purposes, an assimilationist 1969 government ‘White Paper on Indian Policy’, ⁴² awakened and strengthened a First Nations voice ⁴³ in the debates—with calls coming (particularly from the West) for greater protection of Aboriginal rights and identity by constitutional amendment. ⁴⁴ This momentum was soon bolstered by the Calder decision referred to above, which crystallised the potential significance of common law Aboriginal title ⁴⁵ and prompted renewed negotiation of claims. ⁴⁶ When protection for Aboriginal rights did not materialise in the constitutional plans, a coalition of Aboriginal groups pressured governments with national demonstrations. ⁴⁷ Yet there was also some opposition among Aboriginal peoples, on the basis that the proposals could result in some erosion of their nationhood and distinct legal identity. ⁴⁸

Ultimately, broadly cast protections did emerge: s 35 of the Canadian Constitution Act 1982 recognises and affirms the ‘existing aboriginal and treaty rights of the aboriginal peoples of Canada’. This provision gave these rights constitutional status. However, the section was in many respects a ‘shell without a filling’, ⁴⁹ as it does not define these ‘rights’ nor the nature of the protection conferred. It also failed to define what was meant by ‘existing’ rights. ⁵⁰ The ensuing exploration has focused primarily on land use rights, but the plain meaning of ‘rights’ is broader. ⁵¹ On the other hand, as will be seen, this notion of ‘Aboriginal rights’ has become something narrower than the full manifestation of all Aboriginal traditions or laws (even in the context of land use).

The proponents and drafters of s 35 were aware of its uncertainties. ⁵² The 1982 document itself, in s 37, provided for a constitutional conference to be held soon after to discuss matters including ‘the identification and definition’ of ‘rights’. That initial conference produced clarifying amendment on specific issues, ⁵³ but no substantial progress on the central issues of definition. Instead, s 37.1 was added, providing for at least two further conferences. Further conferences were held between 1984 and 1987, but without significant progress on definitional issues or contested questions about self-governance. ⁵⁴ Later negotiations produced a broad package of proposed amendments (the ‘Charlottetown Accord’) ⁵⁵ that did address Aboriginal representation and self-government, ⁵⁶ but in October 1992, Canadians voted by referendum to reject the Accord. Importantly, it is understood that concerns over erosion of existing nation-to-nation relations, inadequate consultation, financing issues and gender equality issues led to some significant opposition by treaty-covered First Nations peoples. ⁵⁷

Canada was accordingly left with little guidance on the meaning of s 35’s recognition and affirmation of ‘Aboriginal rights’. A difficult legal journey was inevitable. The task of translation and implementation has fallen to the courts—resulting in an ad hoc exploration of the issues, complex problems of reconciliation with common law precedent, concerns over the cultural competence of legal professionals ⁵⁸ and debates over conflation of legal, moral and political questions in the pursuit of a workable constitutional compromise. This struggle (traced later in this article) is an important case study on Western law’s practical receptivity to customary laws and the challenges of legal pluralism.

Pre-existing recognition of customary laws

To complete the background to Canada’s s 35, we should reflect briefly on how customary laws have been dealt with more generally. The deeper history of Canada, as for many settler colonial countries, is filled with successive assimilationist policies that left little room for engagement with customary laws. ⁵⁹ In recent times, despite growing understanding, that engagement has remained somewhat specific and limited.

In the absence of any general legislative initiative, various statutes have referenced specific customary laws for particular purposes ⁶⁰ —notably (but controversially) ⁶¹ the many iterations of the current Indian Act 1985. More broadly, First Nations’ federally legislated on-reserve ‘jurisdiction’ (relating to matters such as membership, public order, land and resource use) ⁶² is a potentially important conduit for customary principles. Yet in this context those principles tend to be confined and filtered by the imposition of Western processes. ⁶³

A number of treaties also provide some specific recognition of customary laws and rights. ‘Treaty rights’ are now ‘recognized and affirmed’ under s 35 (along with ‘Aboriginal rights’), underlining their enforceable nature. ⁶⁴ Examples of customary law recognition, and indeed authority to practise and develop those laws, can be found both in colonial treaties (typically formalising purchase and reservation of lands, alliances and/or peace agreements) ⁶⁵ and modern Land Claims Agreements. ⁶⁶ Notably, in addition to the creation of reserves (often in traditional territory), many of these early and modern settlements preserve subsistence rights over surrendered lands—in terms respecting the traditional practices and customs.

The modern agreements are inevitably more specific in their definition of rights, and customary law recognition is often now somewhat subsumed by the broader attention to ‘self-government’. As discussed further below, broad or specific self-government agreements (another potential conduit for customary principles) can be negotiated as part of a comprehensive land claim ⁶⁷ or as a stand-alone agreement (often in the context of a reserve). ⁶⁸ The nature and limitations of these agreements have been incrementally explored in commentary. ⁶⁹ In British Columbia, with its lack of historic treaties, ‘shared decision-making’ agreements have also come to prominence as an attempt to build frameworks for collaboration on land management (particularly in response to the modern ‘consultation’ obligations flowing from the s 35 jurisprudence—discussed below). It has been argued, however, that these ‘shared decision-making’ agreements have generally fallen short of enabling First Nation communities to significantly contribute by reference to their own laws and customs. ⁷⁰

The courts have found constitutional space for the agreed recognition of customary law-making power ⁷¹ and themselves provided further actual recognition of customary laws in specific contexts—including marriage, adoption, band membership and elections and sentencing. ⁷² In the latter regard, specific initiatives include the ‘First Nations Court’ (within the Provincial Court of British Columbia) that works holistically in sentencing, recognising the unique circumstances of First Nations defendants and encouraging communities to contribute to the process. ⁷³ Also in the court space, the incremental legal awakening of common law Aboriginal title (prior to s 35) entailed some common law appreciation of customary laws—but their precise role in this context remained uncertain for many years. ⁷⁴

Inevitably, there have been conspicuous assertions of customary law authority outside of the avenues discussed above. Notable recent examples include the assertion of environmental assessment authority by the Tsleil-Waututh Nation in relation to a pipeline expansion in its traditional territory, and the introduction (without federal authority) of a Mohawk Court on the Akwesasne reserve on the Ontario/Quebec/New York borders. ⁷⁵

A key theme of the very significant 2015 final report of the Truth and Reconciliation Commission of Canada, ⁷⁶ which emerged from the Commission’s 6 years of hearings involving residential school survivors across Canada, was the importance of respecting and revitalising Indigenous legal traditions. ⁷⁷ This acknowledgment of importance, and indeed the resurgence in fact of Indigenous legal traditions, ⁷⁸ stand in contrast to the quite constrained legal accommodation of customary laws revealed by the brief review above. The s 35 framework had ushered in a potentially deeper engagement. Through the protection of specific ‘Aboriginal rights’, the associated customary laws might find a voice in the Constitution. ⁷⁹ And the broader notion of ‘Aboriginal title’ that would re-emerge through s 35 might stimulate renewed respect for customary connections and land uses, protect a modern ‘title’ that could draw on a range of customary laws, and potentially build new recognition of First Nation ‘jurisdiction’. Alternatively, s 35 could be read as a lesser engagement with customary laws—which were perhaps just to be sought and narrowly interpreted as the ‘brute facts of Indigenous existence prior to contact’. ⁸⁰ Certainly s 35 carries a significant responsibility in contemporary Canadian law. Some have lamented that it ‘failed to reset the relationship between Indigenous peoples and the Crown’ ⁸¹ —or that the Supreme Court has demonstrated a ‘tenacious unwillingness to frame Aboriginal rights broadly’. ⁸² Yet this is an evolving legal platform, and we will return later to see how it has fared.

The protectorate

In Vanuatu, as in Canada, customary laws were in force before the arrival of foreigners and continued to be practiced during the colonial era. The term ‘colonial’ is used loosely here as Vanuatu was never a colony; it was originally governed by England and France under a Joint Naval Commission, by virtue of a Convention signed in 1887. Some of the earliest colonial constituent laws were made under the Crown’s prerogative powers. These usually consisted of a Royal Charter, ⁸³ Letters Patent ⁸⁴ and Royal instructions. ⁸⁵ However, due to the decline of the royal prerogative, most constituent arrangements in Vanuatu were made or ratified by Order-in-Council, under the Foreign Jurisdiction Act 1890. This was expanded upon by an Anglo-French Protocol in 1906 ⁸⁶ and later replaced by an Anglo-French Protocol signed in 1914 and ratified in 1922. ⁸⁷ This arrangement was known as the ‘condominium’, ⁸⁸ nicknamed locally as the ‘pandemonium’. ⁸⁹ The 1914 Protocol underpinned the system of government until independence in 1980.

Under the Protocol, the country was administered by two High Commissioners appointed by England and France. ⁹⁰ It established a Joint Court, with civil and criminal jurisdiction in cases between French citizens and British subjects, or optants, ⁹¹ and between those categories and natives. ⁹² England and France also established their own national courts. ⁹³ The Protocol provided for a hotchpot of laws. English legislation and case law applied to British subjects and optants ⁹⁴ and the French Civil Code applied to French citizens and optants (‘introduced laws’). Locally made ‘colonial laws’ included Queen’s Regulations made by the High Commissioner or Resident Commissioner and French Regulations made by their counterpart (for their respective citizens and optants), together with Joint Regulations issued by the High Commissioners for the ‘maintenance of order and for the good government of the group, and for carrying the present Convention into effect’ ⁹⁵ (applying to all inhabitants).

The 1914 Protocol also provided that ‘native laws and customs…where not contrary to the dictates of humanity and the maintenance of order shall be utilised for the preparation of a code of native law both civil and penal’. ⁹⁶ Codes were to be put in force region by region, administered by Native Courts. ⁹⁷ A Native Criminal Code was drawn up in 1938, ⁹⁸ and Courts established over the following years. No civil code was introduced, and the Criminal Code was impliedly repealed by the Penal Code Act ⁹⁹ (applicable to everyone). The Protocol made some provision for ascertaining custom through the employment of assessors, knowledgeable in custom, to sit with judges in the common law courts. ¹⁰⁰

Alongside these provisions, traditional leaders were often encouraged by colonial administrators to enforce customary laws as a form of social control. ¹⁰¹ More particularly, the rules of customary land holding were left in place. The common law rule that radical title to land belonged to the Crown was not applied, and legislation provided that all land, including waste land, belonged to Indigenous people. ¹⁰² However, during the period of dependency, ¹⁰³ sales of perpetual titles to land were permitted (with permission of the Joint Court). ¹⁰⁴

Independence and constitutional recognition

In the 1960s, disputes over land clearing for coconut plantations led to the emergence of ‘Nagriamel’, a protest and pro-independence movement led by Jimmy Stevens. ¹⁰⁵ Britain was in favour of granting independence, although not on the terms demanded. ¹⁰⁶ France was opposed, fearing pro-independence aspirations in their mineral-rich territory of New Caledonia. ¹⁰⁷ In the early 1970s, the Vanua’aku Party was established, laying the seeds for a party system which has never completely ‘taken’ in Vanuatu. ¹⁰⁸ The Vanua’aku party steered the push for independence. Yet in June 1980, Jimmy Stevens led an uprising on Espirito Santo island, objecting to the terms on which independence was planned and the Vanua’aku Party’s dominance. ¹⁰⁹ The rebels declared Espiritu Santo’s independence. As neither France nor the United Kingdom sent troops, the uprising was quelled with assistance from Papua New Guinean soldiers. ¹¹⁰

In the meantime, on 30 July 1980, the country had become independent. The new Constitution was based on a Westminster parliamentary democracy. ¹¹¹ However, the prevailing nationalism propelled customary laws to the top of the agenda, and this was reflected in the aspirational prefatory part: ¹¹²

WE, the people of Vanuatu…CHERISHING our ethnic, linguistic and cultural diversity,

MINDFUL at the same time of our common destiny, HEREBY proclaim the establishment of the united and free Republic of Vanuatu founded on traditional Melanesian values, faith in God, and Christian principles, AND for this purpose give ourselves this Constitution.

There are no express limitations placed on the application of customary laws in art 95(3). However, as the Constitution is declared by art 2 to be the supreme law of Vanuatu, customary laws are viewed as subject to its provisions, including the fundamental rights and duties in ch 2. ¹¹⁴ The Constitution also authorises Parliament to enact legislation, and although it is not expressly stated, the courts view customary laws as subordinate to those Acts. ¹¹⁵

Further down the hierarchy, things become rather murky. Article 95(1) and (2) states that, until otherwise provided by Vanuatu’s Parliament, laws in force immediately before Independence continue to apply. As explained above, laws in force include colonial laws and introduced laws. Colonial laws apply ‘as if they had been made in pursuance of the Constitution’, ¹¹⁶ which gives them the same status as Acts of Vanuatu’s Parliament and therefore appears to give them precedence over customary laws. Less certain is the relationship between customary laws and introduced laws. ¹¹⁷ The Constitution provides that British and French laws ¹¹⁸ ‘continue to apply to the extent that they are not expressly revoked or incompatible with the independent status of Vanuatu and wherever possible taking due account of custom’. ¹¹⁹ Again, the reference to custom appears almost an afterthought, and it is unclear whether introduced laws are to apply in preference to custom, or whether they must give way if incompatible with custom, unless there is some specific reason why this is not possible. Thus, the Constitution places customary laws in an uncertain position in the hierarchy and, as discussed later, the courts have been left to grapple with this. ¹²⁰

Vanuatu’s Constitution goes further by providing for the inclusion of traditional leaders in national government through a National Council of chiefs (‘the Malvatumauri’). ¹²¹ This is not a traditional body but is composed of custom chiefs elected by their peers sitting in District Councils of Chiefs. ¹²² The Malvatumauri determines its own procedure ¹²³ but must meet at least annually. ¹²⁴ Opinions and votes in the Council are privileged. ¹²⁵ The Malvatumauri has a general competence to discuss all matters relating to custom and tradition and may make recommendations for the preservation and promotion of Ni-Vanuatu culture and languages. ¹²⁶ It ‘may be consulted on any question, particularly any question relating to tradition and custom, in connection with any bill before Parliament’. ¹²⁷ Article 31 provides that Parliament is to provide for the organisation of the Malvatumauri. Basic provision was made by the National Council of Chiefs (Organisation) Act 1985, including that ‘the rules, functions, duties and obligations of customary chiefs at village, island and regional levels’ were to be determined by the ‘customary law of Vanuatu in so far as it has not been repealed or modified by written law’. ¹²⁸ In 2006, a more elaborate framework was provided, ¹²⁹ under which the Malvatumauri became an umbrella body overseeing two other levels of councils, namely, the Island and Urban Councils of Chiefs. Between one and three Island Councils are established on each of Vanuatu’s Islands, and an urban council in Port Vila (the capital) and in Luganville (the main town on Espiritu Santo). The functions of the Councils (including resolution of disputes according to, and promotion of, custom) are carefully set out. ¹³⁰

The details provided for the organisation of the Councils arguably take them further away from traditional processes. For example, the Act provides for the National Council to have an elected Chairperson and for the appointment of a Chief Executive officer. ¹³¹ Elected positions and external appointments may be seen as running counter to Pacific traditions of consensus and compromise and a catalyst for social tensions. Some imposed procedures might be more appropriate than they first appear (e.g. election may accord with selection of chiefs on merit over lineage). ¹³² Yet in broad terms introduced process very likely contributes to the reality, particularly in rural areas, that many communities live with little reference to laws and institutions beyond their custom.

The Constitution enhances the Malvatumauri’s role by providing that Parliament must consult this body on certain customary land matters. ¹³³ This has recently been strengthened to require consultation before any change to Vanuatu’s land law. ¹³⁴ The Malvatumauri and Island Councils of Chiefs are also given a supervisory role in the land dispute resolution process. ¹³⁵

In addition to these provisions and the general arts 95 and 47, the Constitution makes special provision to ensure that land is governed by customary laws. Article 73 provides that all land in the Republic belongs to the ‘custom owners’. Under art 75 ‘[only] indigenous citizens…who have acquired their land in accordance with a recognised system of land tenure shall have perpetual ownership…’. And while customary land may be transferred to other Ni-Vanuatu if customary laws permit, and provided the process accords with customary laws, ¹³⁶ transfers to non-Indigenous citizens or to foreigners are only allowed in the form of a lease. ¹³⁷ Further, land transactions between an Indigenous citizen and a non-Indigenous citizen or non-citizen are only permitted with government consent. ¹³⁸ Consent is prohibited if the transaction is prejudicial to indigenous or national interests. ¹³⁹ As a result of these provisions, 98% of land is under customary tenure. ¹⁴⁰ Article 74 provides that ‘the rules of custom shall form the basis of ownership and use of land’. Accordingly, disputes concerning customary land are to be determined in accordance with customary laws. However, land disputes are common and, as discussed further below, the pathways for resolving these have been a subject of contention.

While the Constitution declared the State to be founded on traditional Melanesian values and afforded some recognition to customary laws, as with Canada, the difficult detail was largely left aside, in this case, to be pursued by Parliament. The Constitution ¹⁴¹ provides in art 51 that:

Ascertainment of rules of custom

(1) Parliament may provide for the manner of the ascertainment of relevant rules of custom except for the rules of custom relating to ownership of custom land, and may in particular provide for persons knowledgeable in such custom to sit with the judges of the Supreme Court or the Court of Appeal and take part in its proceedings.

The assembly and application of the Van der Peet test

The Supreme Court’s first close examination of s 35 came in the 1990 decision of R v Sparrow ¹⁴⁹ —a case concerning government power to regulate fishing by net length restrictions. The case focused primarily on possible extinguishment or infringement of the Aboriginal rights in issue, clarifying that the new constitutional protection meant that any post s 35 ‘infringement’ of ‘rights’ (and attendant traditions) must be ‘justified’ by reference to an exacting standard. Yet the broader difficulty of this legal confluence was already apparent. First, the Court largely avoided difficult questions about the evolution and modern exercise of Aboriginal traditions. ¹⁵⁰ Second, the reasoning raised the possibility that the constitutional protection covered only a subset of traditions (i.e. ‘integral’ ones). And third, while the Court explained that the ambiguous word ‘existing’ in s 35(1) means ‘unextinguished’, ¹⁵¹ it has been noted that this effectively consigns Aboriginal peoples and their rights to a ‘frozen lake with two air holes placed centuries apart’—all rights were forcibly submerged for generations and only those that have made it to the second hole have now been recognised. ¹⁵² The Court was already grappling here with some of the key challenges identified at the beginning of this article.

In the critical decision of Van der Peet, one of a 1996 trilogy, ¹⁵³ Lamer CJC ¹⁵⁴ built his ‘integral to distinctive culture’ test upon terminology from Sparrow and what he saw to be the ‘purpose’ of s 35—namely:

…the protection and reconciliation [with Crown sovereignty] of the interests which arise from the fact that prior to the arrival of Europeans in North America Aboriginal peoples lived on the land in distinctive societies, with their own practices, customs and traditions. ¹⁵⁵

There were alternative views about the appropriate constitutional ‘reconciliation’. L’Heureux-Dubè J viewed the purpose of s 35 more as cultural and societal preservation, and hence focused the test on the social and cultural significance of a practice, tradition or custom. ¹⁵⁸ Her Honour was critical of a point in time (‘frozen right’) approach—preferring to require the activity to have been sufficiently significant and fundamental to the culture and social organisation of the group for a substantial continuous period of time. ¹⁵⁹ McLachlin J sought to avoid ‘freezing’ rights by distinguishing between general ancestral rights and their modern exercise ¹⁶⁰ and requiring (without reference to dates) continuity between the modern practice and the laws and customs that ‘held sway’ before European ones. ¹⁶¹

Difficult questions obviously arise about what is ‘integral’ or ‘significant’ and by whose measure. Moreover, the cogitation here on the temporal source, baseline scope and/or adaptability of ‘rights’ is important as regards the nature of s 35’s engagement with customary laws; is it seeking and preserving just the practices of pre-contact existence, or is it more fully recognising the customary laws and processes themselves? A broader definition of the ‘ancestral right’, or flexibility on the period of inquiry, avoids rather than answers this.

Lamer CJC’s ‘integral to distinctive culture’ test was confirmed and elucidated by majorities in two cases accompanying Van der Peet—R v NTC Smokehouse and R v Gladstone. ¹⁶² These three cases illustrate well the complexity and potential controversy of the test. The claims were characterised as assertions of a right to exchange fish (salmon or herring spawn) for money or other goods—however, in Gladstone a broader ‘commercial’ classification was considered in the alternative. ¹⁶³ Only in Gladstone was the claimed right (in fact both classifications) found to be an element of a practice, custom or tradition integral to the distinctive pre-contact culture of the group. ¹⁶⁴ It was emphasised (given there had also been pre-contact exchanges in the other cases) that it must be one of the things that ‘truly made the society what it was’, as opposed to incidental or occasional activities. ¹⁶⁵

A fourth decision in 1996, R v Pamajewon, ¹⁶⁶ concerned an asserted right to operate and regulate high stakes gambling on a reservation—and therefore raised difficult questions of customary law recognition and self-governance more directly. ¹⁶⁷ The Court was prepared to assume (without deciding) that s 35 could include rights of ‘self-government’ but found that the specific rights asserted here were not made out on the evidence and the exacting Van der Peet test. ¹⁶⁸

Canadian government policy later recognised an ‘inherent right of self-government’ as a potential s 35 right (with cross-reference to Van der Peet language) and that such a right ‘may find expression in treaties’ and ‘in the context of the Crown’s relationship with treaty First Nations’. ¹⁶⁹ Yet this policy, although laudably driven by the goals of building stronger communities and dismantling old Indian Act restrictions, was the product of years of contention and was carefully hedged. The recognition of self-government over the ‘special relationship’ to land and resources was (by glossary) limited essentially to reserve and relevant agreement lands (as opposed to traditional lands more broadly); the right to self-government was said to operate within the constitutional ‘framework’ and therefore required harmonious ‘cooperative arrangements’ with other governments; and this right was said not to include a ‘right of sovereignty’ in the international law sense. ¹⁷⁰ As noted earlier in this paper, broad or specific self-government agreements can be negotiated as part of a larger comprehensive land claim process, ¹⁷¹ or as a stand-alone agreement (often in the context of a reserve). ¹⁷²

The controversies of Van der Peet returned to the Supreme Court in 2006. In R v Sappier ¹⁷³ ‘Aboriginal rights’ had been raised in defence to prosecutions for unlawful cutting of timber. The Crown argued that while pre-contact timber usage may have been important for survival it was not established to be a defining practice, custom or tradition that ‘truly made the society what it was’. ¹⁷⁴ Yet the Court, ¹⁷⁵ having characterised the claimed right as one to harvest wood for domestic uses, ¹⁷⁶ was prepared to infer from evidence on the importance of the resource that the practice of harvesting was also significant. ¹⁷⁷ Notably, it rejected the view that practices merely for ‘survival’ could not satisfy Van der Peet ¹⁷⁸ —in the process revisiting comments in earlier decisions. ¹⁷⁹ The Court was also concerned this time to accommodate ‘evolution’ of activities—to not ‘freeze the right in its pre-contact form’. ¹⁸⁰ Here, the right to harvest wood was allowed to evolve into a right to harvest wood by modern means for modern dwellings. ¹⁸¹

The outer edges of s 35 were found again in the 2011 case of Lax Kw’alaams Indian Band v Canada (Attorney General). ¹⁸² In response to an assertion of fishing rights on the northwest coast, the Court held that the established practices, customs and traditions of the pre-contact society did not support a contemporary right to broad commercial fishing: the sporadic historical trade in fish (bar one specific product) was found to be peripheral and non-defining. ¹⁸³ It was noted that while evolution was possible (in subject matter and method), ¹⁸⁴ the modern claim as framed lacked ‘continuity and proportionality’—being qualitatively and quantitatively different to the pre-contact trade. ¹⁸⁵ A late-added lesser claim (framed in terms of a right to a ‘prosperous economy’) was rejected for both substantive and procedural reasons, ¹⁸⁶ and the residual claim to a fishery for ‘food, social and ceremonial’ purposes was considered uncontentious and not worthy of any declaration. ¹⁸⁷

The legal and moral logic of the ‘integral to distinctive culture’ test has been hotly debated; key concerns being its propensity to ‘moor’ Aboriginal rights to the past and its awkward search for the ‘integral’ features of ‘distinctive’ cultures. ¹⁸⁸ Most importantly, these cases illustrate well some of the intractable difficulties of legal pluralism in operation—and the added challenges of constitutional context. The courts were given no map for this legal journey, and they candidly pursued a controversial compromise in the constitutional provisions.

The recovery of ‘Aboriginal title’

One year after Van der Peet, the Supreme Court carved out of the new ‘Aboriginal rights’ methodology a revised notion of ‘Aboriginal title’. Delgamuukw v British Columbia ¹⁸⁹ concerned a more comprehensive claim than the fisheries cases. Lamer CJC ¹⁹⁰ explained that common law Aboriginal title is protected ‘in its full form’ by s 35(1) ¹⁹¹ —as a distinct species of ‘Aboriginal right’ arising from a sufficiently significant connection with land. ¹⁹² It is established, essentially, upon proof of exclusive occupation (by reference to physical occupation and systems of Aboriginal law) at the point of acquisition of sovereignty. ¹⁹³ And this title confers a right to the land itself (and its use for a variety of purposes), subject to the limitation that uses must not be ‘irreconcilable’ with the nature of the attachment to the land. ¹⁹⁴

Aboriginal law has a conspicuous role in this formula, albeit a somewhat ill-defined one. ¹⁹⁵ Inevitably, the courts have wrestled with the challenges of pluralism in this context also. The ‘irreconcilable uses’ limitation, drawn in part from constitutional ‘purpose’ and so an awkward overlay on common law principle, ¹⁹⁶ was considered by some key observers to be somewhat preservationist and paternalistic. ¹⁹⁷ When the Supreme Court itself returned to this issue in 2014, ¹⁹⁸ it was careful to emphasise that this restriction emerged from the ‘collective’ nature of Aboriginal title, which is held for the present and all succeeding generations. ¹⁹⁹

A more significant dilemma emerged around the assessment of original ‘occupation’ and ‘exclusivity’ under the Delgamuukw test, and particularly the extent to which Aboriginal laws and perspectives influence that assessment. Lamer CJC in Delgamuukw was ostensibly relativist in his approach (reminiscent of early US cases)—accommodating the potential selectivity and intermittency of traditional land use ²⁰⁰ and noting the need to seek ‘exclusivity’ with sensitivity to Aboriginal perspectives. ²⁰¹ In the 2005 decision of R v Marshall; R v Bernard, ²⁰² a Supreme Court majority ²⁰³ cast doubt on this flexibility, apparently drawing the test back towards the tighter inquiries associated with general law ‘possession’ (such that seasonal hunting and fishing might typically translate as ‘rights’ rather than ‘title’). ²⁰⁴ Yet there was equivocation in this decision; the majority also emphasised the importance of the Aboriginal perspective (and specific land and group characteristics), and the imprecision of notions of ‘exclusivity’. ²⁰⁵

The sequel to Delgamuukw was a long time coming, but in the interim, the controversy around assessment of original ‘exclusive occupation’ (and the role of Aboriginal laws and perspectives) steadily grew. Ultimately, this emerged squarely in the 2014 decision of Tsilhqot’in v British Columbia. ²⁰⁶ The Supreme Court ²⁰⁷ rejected a strict view that would result in only small pockets of ‘title’ surrounded by larger areas supporting only Van der Peet style specific ‘rights’. According to the Court, title could be established by proof of regular and exclusive use of territory (as opposed to intensive use of definite tracts with defined boundaries)—and this was to be assessed with due attention to Aboriginal culture and practices and might include tracts regularly used for hunting and fishing (etc) and over which the group exercised effective control. ²⁰⁸ This is a significant show of respect for Aboriginal histories, practices and attendant laws; Tsilhqot’in law was a ‘key ingredient’ in the case in the assessment of use and occupation. ²⁰⁹ The decision was of enormous significance for the non-treaty regions of Canada (particularly British Columbia).

The s 35 protection

The broader dilemma thrown up by s 35 related to the nature of protection afforded to recognised ‘Aboriginal rights’ (and title). In the first place, as s 35 was located in pt II of the Constitution Act, it was apparently free of the ‘reasonable limits’ qualification and legislative override provisions applying to the new Charter of Rights and Freedoms (in pt I). ²¹⁰ And s 25 (in pt 1) further provided that the Charter guarantees ‘shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada’. ²¹¹ The Charter principles of course reflect some of the more sacrosanct tenets of Western law, and not surprisingly, there has since been cogitation on whether s 25 should operate as an ‘absolute bar’ to Charter-based challenges to s 35 rights—or merely as an interpretative provision informing the construction of potentially conflicting rights. In the Supreme Court’s own brief consideration, ²¹² it was said that ‘these issues raise complex questions of the utmost importance to the peaceful reconciliation of Aboriginal entitlements with the interests of all Canadians…. best left for resolution on a case-by-case basis’. ²¹³

Beyond this lingering structural uncertainty, bigger questions about the nature of s 35’s protection produced the most significant constitutional ‘compromise’ forged by the courts. The 1990 Sparrow decision had laid down a broad requirement that a post s 35 ‘infringement’ of these rights, once identified, must be ‘justified’. This entailed establishing a ‘valid legislative objective’ for the infringement, and that action was consistent with the ‘special trust relationship’ between the Crown and Aboriginal peoples (which would turn upon questions of proportionality, compensation, consultation and priority in any conservation measures). ²¹⁴ This initial test attracted controversy, but moreover it is often argued that in later cases the bar for ‘justification’ was noticeably lowered. ²¹⁵ In Gladstone ²¹⁶ and Delgamuukw, ²¹⁷ the Sparrow notion of priority was diluted, ²¹⁸ and what had been a search for a ‘compelling and substantial’ legislative objective (e.g., conservation or public safety) appeared to be eroded to one satisfied by industry or infrastructure development projects and general economic expansion. ²¹⁹ In Delgamuukw, Lamer CJC again referred to s 35’s purpose of ‘reconciling’ prior Aboriginal occupation with Crown sovereignty in supporting the broadening approach. ²²⁰

Yet this issue, going to the priority accorded to the Western law’s own central purposes, proved not to be settled. According to the Supreme Court in Tsilhqot’in, ²²¹ absent consent from Aboriginal title holders ²²² ‘justification’ of incursion on title land would require the Crown to establish: (1) a proper discharge of its duty to consult and accommodate; (2) a compelling and substantial objective; and (3) consistency with the Crown’s fiduciary obligation toward the group. ²²³ The first mentioned duty arises even where the Crown has just actual or constructive knowledge of the potential existence of Aboriginal title ²²⁴ (albeit that it varies according to the strength of the claim and seriousness of potential impact). ²²⁵ Further, and importantly, the ‘compelling and substantial objective’ must be considered from the Aboriginal perspective as well as that of the broader public. ²²⁶ Moreover, the Court said that the fiduciary obligation requires the Crown to respect the group and cross-generational nature of the title interest and imports an obligation of ‘proportionality’ in the justification process. ²²⁷ These are significant hurdles for the Crown in any attempt to ‘justify’ infringement of Aboriginal title—and the intergenerational equity that apparently underpins the ‘irreconcilable uses’ limit on Aboriginal title now appears to confine both parties. ²²⁸

There was, however, a significant addendum to the Court’s revitalisation of the ‘infringement/justification’ test. It was decided that this regime applied to (and could be utilised for) provincial as well as federal infringement. ²²⁹ This has been controversial: seen by some to dismantle an important institutional buffer for Aboriginal communities, ²³⁰ yet by others as recognition of Aboriginal decision-making authority as against both levels of government. ²³¹ Certainly the decision has prompted some ‘government to government’ style interaction between the province and the community in this case. ²³²

The ‘duty to consult’, refined and formalised in the Tsilhqot’in decision, ²³³ has become a lynchpin in the implementation of the constitutional compromise and navigation of competing legal perspectives. In this regard the courts have been called upon to consider further questions about whether breach of the duty can be relied on by individuals, ²³⁴ whether the duty applies at the law-making stage, ²³⁵ the reach of the duty and its ‘triggers’, the means and bodies by which the Crown can fulfil the duty, and the standard of consultation required. ²³⁶ There has also been related refinement and delimitation of the fiduciary duty owed by the government in certain contexts, and the broader responsibilities arising from the ‘honour of the Crown’. ²³⁷

As alluded to above, by the time of Tsilhqot’in the principles around Aboriginal title were building towards a species of self-government or ‘jurisdiction’. ²³⁸ Aboriginal title now supports a range of uses over robustly defined portions of traditional territory, with associated rights of collective decision-making over lands and resources ²³⁹ and triggers nation-to-nation style engagement with governments in the context of infringement. With the Tsilhqot’in decision, and indeed growing political affirmation of the need for recognition, respect, co-operation and partnership (as reflected in recent Principles and Directives), ²⁴⁰ the country is at the top of a significant step forward in the meaningful accommodation of customary laws and processes—however, clearly the challenges in this field are complex, and progress is always precarious.

The implementation of recognition provisions

The problematic task of deciphering the constitutional recognition provisions has similarly been left to the courts in Vanuatu. Here, we examine how the courts have approached the issues, commencing with the decision in Banga v Waiwo. ²⁴¹ This case has been extensively traversed elsewhere, ²⁴² but given that for some time it stood alone in its detailed consideration of customary laws in common law proceedings, it remains an important starting point. At first instance, ²⁴³ Lunabek Senior Magistrate (‘SM’) was called upon to determine the ‘damages’ for adultery to be paid to a spouse under the Matrimonial Causes Act. ²⁴⁴ The SM was faced with the complex hierarchy of laws laid down by the Constitution and took the opportunity to review the place of custom. Acknowledging the Preamble, which founded Vanuatu society on ‘traditional Melanesian values’, he interpreted art 95(2) ²⁴⁵ as restricting the continued application of British and French law to British and French subjects. He concluded that it did not apply to Ni-Vanuatu, ²⁴⁶ who were only subject to legislation passed by the Parliament of Vanuatu or declared by Vanuatu courts. If no such law existed, then customary laws would apply. ²⁴⁷ In this case, given the seriousness of adultery under customary laws, he awarded punitive damages. ²⁴⁸ Acknowledging the potential challenges of accurately ascertaining relevant customary laws, the SM noted (at least) that the court should not be bound to ‘observe strict legal procedure or apply technical rules of evidence’, but should consider all relevant evidence, including hearsay and opinion, and otherwise inform itself as it saw fit. ²⁴⁹

Lunabek SM also considered the important question of how local variations were to be accommodated when multiple groups are involved. With increased mobility and intermarriage, this is an important question for the courts. The SM suggested that where Ni-Vanuatu parties came from areas with different customs the court should search for a ‘common basis or foundation’ and turn that shared foundation into a rule. ²⁵⁰ Where only one of the parties was Ni-Vanuatu the court should consider both any applicable British or French law and applicable customary laws and ‘apply the law relevant to the case’. ²⁵¹ However, he did not expand on how that relevance might be determined. An answer may be found in the Underlying Law Act of Papua New Guinea, the successor to the Customs Recognition Act, which states that in deciding on which customary law to apply, ‘the court shall have regard to (a) the place and nature of the transaction, act or event; and (b) the nature of residence of the parties’. ²⁵²

This decision was appealed to the Supreme Court. ²⁵³ While agreeing that Vanuatu’s Matrimonial Causes Act should be interpreted differently from its English counterparts and that punitive damages were available, Chief Justice Vaudin d’Imecourt disagreed with the reasoning underpinning the lower decision. His Honour contended that the constitutional drafters must have intended equality before the law, ²⁵⁴ and so art 95(2) should be read as making British and French laws applicable to everyone in Vanuatu after independence. The Chief Justice held that the common law courts should use custom ‘only in the event that there was no rule of law applicable to a matter before it’. ²⁵⁵ He justified this marginalisation by pointing out that custom varied widely across Vanuatu (not commenting directly on Lunabek SM’s suggested way of dealing with conflicts) and that customary laws were difficult to ascertain because they were unwritten and judges and magistrates were not experts in all or any of the customs applying across Vanuatu. ²⁵⁶ On the question of proof, the Chief Justice observed only that although there might not be a need for strict rules, ‘if and when the need arises to establish a particular custom, evidence must, nevertheless, be obtained and a clear custom must be established’. ²⁵⁷

While the lack of Parliamentary provision on the application of unwritten and diverse customary laws does indeed make its application more complex that does not overcome the apparent flaw in the Chief Justice’s reasoning. This narrow view of art 95(3) relegates customary laws to a law of last resort. This betrays the constitutional aspirations set out in the Preamble ²⁵⁸ and ignores what was argued earlier to be the natural reading of art 47(1), taken in context, requiring a court to determine matters ‘whenever possible in conformity with custom’.

Lunabek SM later became Chief Justice of Vanuatu, leaving Pacific scholars eager for a case requiring reconsideration of these issues to come before him. While this has yet to occur, the place of customary laws in the hierarchy was considered very recently by another Supreme Court judge. This case, PP v Leo, ²⁵⁹ is a rare example of a clear claim that the traditional system should prevail over the state system. The defendant was a chief and leader of the Tauraga Movement in North-Eastern Pentecost, an island far removed from the capital. He pleaded not guilty to charges of criminal misconduct including threatening to kill, malicious damage and arson—which arose from an incident in his village. As Chief, he had placed a gorogoro (ban) on collecting seafood from an area within the village boundary. Two villagers were accused of breaking this. According to the prosecution they denied this, but nevertheless went to offer the defendant a tusked pig by way of apology, in response to which he allegedly berated them and took a shovel to their houses, threatening to shoot them if they did not leave the village. The villagers and their families abandoned their belongings and fled, following which the defendant and his followers allegedly looted and/or burnt their houses and gardens. In defence, it was contended that after the gorogoro was broken a customary court of five chiefs was convened and had imposed a customary penalty of 5000 pigs and that in default the villagers were to leave voluntarily or, as a last resort, by a custom eviction. The defendant argued that as the fine was not paid and the villagers did not leave, what followed was all a part of the customary eviction process.

At a preliminary hearing, the defence argued that as the actions had been taken by the customary court, in accordance with customary laws, they were not justiciable under Vanuatu’s written laws. The prosecution countered that the Court clearly had jurisdiction under the Penal Code. This led the Court again to questions about the hierarchy of laws in this legally and historically complex context. Wiltens J held that the Supreme Court did have jurisdiction, relying on arts 47 ²⁶⁰ and 49 ²⁶¹ of the Constitution, s 28 of the Judicial Services and Courts Act, ²⁶² and s 1 of the Penal Code. ²⁶³ He concluded that, in the light of art 47, the Court was compelled to determine the case according to law, which he took to mean the written law (for criminal acts the Penal Code and the Criminal Procedure Code). Wiltens J echoed the views of d’Imecourt CJ in Banga, stating ‘[c]ustomary considerations would only be a factor in the Supreme Court’s considerations if there were no rules of law applicable to what it was determining’. However, His Honour went further in his relegation of customary laws:

Of the three bases on which the Court must make a determination, customary considerations are the least significant or compelling. The most compelling basis requires the Court to determine the matter in accordance with law; if no rules of law are in place, then the next basis of determination is substantial justice. If the matter is to be determined on the basis of natural justice, it is only then, if possible, that conformity with custom is to be considered. ²⁶⁴

His Honour went on to deal with art 95(3), which defence counsel appears to have suggested gave customary laws precedence over ‘pre-independence foreign laws’. ²⁶⁵ As the Penal Code is a post-independence Act of Vanuatu Parliament, it is hard to see how this advanced the case and Wiltens J expressed himself to be unclear on this point. ²⁶⁶ However, he went on to deliver a further blow to the status of customary laws:

Article 95 of the Constitution was inserted…to deal with transitional matters. What it plainly says is that customary law will continue to have effect as part of the laws of Vanuatu. Pre-independence, customary law played a relatively minor part in the way the laws were administered. Some thirty-eight years later, that continues to be the position. Article 95 was not ever intended to give greater prominence to customary considerations – just to maintain the status quo.

There has been no diminution of significance; neither has customary law taken on added significance; except in one area and that relates to ownership and use of land. Had Parliament wished, customary law in the area of alleged criminal misconduct could also have been devolved to the Chiefs—that has not occurred. There cannot be a clearer message of Parliament’s intent than 38 years of silence in the face of many calls for change. ²⁶⁷

The Supreme Court has also imposed a broader limitation on the application of customary laws. In the 2011 decision of Chief Poilapa v Masaai, ²⁷⁴ the question arose whether the Court had jurisdiction to determine a dispute as to paramount chiefly title. The matter came on appeal from the Magistrates Court (upholding an Island Court decision on applicable custom). The Supreme Court has jurisdiction to hear appeals from the Magistrates Court on questions of law, questions of fact or questions of mixed law and fact. ²⁷⁵ Spear J held, without reference to art 95, that he had no jurisdiction as custom did not come within any of those categories. Yet if customary law is neither law nor fact, nor a combination of the two, what exactly is it? Such confusion is not conducive to a meaningful accommodation of customary perspectives. Spear J’s reasoning was not entirely clear. However, it seems that either the decision was made per incuriam on the basis of failure to take into account art 95, or his Honour was distinguishing custom, as defined in the Interpretation Act, ²⁷⁶ from customary laws. As His Honour noted, the Act defines custom to mean ‘the customs and traditional practices of the Indigenous peoples of Vanuatu’. ²⁷⁷ He did refer to art 47(1), but appears to have been of the view that this only permitted orders relating to custom in exceptional circumstances. ²⁷⁸ Like the Supreme Court’s decisions in Banga v Waiwo, ²⁷⁹ and PP v Leo, ²⁸⁰ this approach seems to ignore the aspirations in the prefatory part of the Constitution and fails to give full effect to the clear mandate in art 95(3) that ‘customary law shall continue to have effect as part of the law’. Even if customary ‘laws’ were somehow not at issue in this case, custom would surely be within the jurisdiction of the court as a question of fact.

The implementation of recognition provisions relating to customary land

As noted in PP v Leo, customary laws have added significance in relation to land. The Constitution provides that ‘the rules of custom shall form the basis of ownership and use of land’, ²⁸¹ but it did not originally provide where or how disputes should be resolved. In broad terms, where traditional leaders have been able to decide matters, the State has not interfered. Indeed, until repealed, ²⁸² the Customary Land Tribunal Act 2001 included some express, pragmatic deference to actual customary resolutions. ²⁸³

However, as chiefs’ decisions proved to be unacceptable to the ‘losing’ party with increasing frequency, ²⁸⁴ Parliament has made a number of attempts to provide avenues (outside of the common law courts) for disputes to be dealt with in accordance with customary laws. These efforts are a somewhat unique example of concerted parliamentary pursuit of constitutional promises of recognition. Originally, customary land disputes were dealt with through Island Courts, ²⁸⁵ established throughout Vanuatu by Chief Justice’s warrant ²⁸⁶ and constituted by ‘not less than three justices knowledgeable in custom…at least one of whom shall be a custom chief residing within the territorial jurisdiction of the court’. ²⁸⁷ Island Courts decide cases in accordance with the ‘customary law prevailing within the territorial jurisdiction of the court so far as the same is not in conflict with any written law and is not contrary to justice, morality and good order’. ²⁸⁸ One problem was that this placed Island Courts at the bottom of the hierarchy, marking customary cases as less important. Further, an appeal on decisions relating to customary land lay to the Supreme Court, ²⁸⁹ allowing an avenue back into the common law system. A vast number of cases were appealed, resulting in a decision by the Chief Justice in 2000 not to hear any more appeals. ²⁹⁰

The Island Courts still deal with minor customary disputes but are no longer the main avenue for land disputes. This jurisdiction was transferred to Customary Land Tribunals in 2001 by the Customary Land Tribunal Act. ²⁹¹ This Act set up a complex hierarchy of tribunals within custom areas, constituted by village chiefs, to resolve customary land disputes. ²⁹² While appeal to a common law court was excluded, ²⁹³ this Act did not confer exclusive jurisdiction on the Tribunals. The common law courts retained jurisdiction to deal with disputes about leases of customary land and the Supreme Court had a power of review for lack of due process. ²⁹⁴ In practice, a large number of cases, pending before the Island or Supreme Courts in 2001, continued to be heard by Island Courts, with appeals still being heard by the Supreme Court. ²⁹⁵

In 2013, the legal landscape was altered again by the Custom Land Management Act, which purports to allow customary institutions to make all decisions regarding customary land. This Act states in opening:

The Parliament of Vanuatu has formalised the recognition of customary institutions termed ‘nakamals’ and ‘custom area land tribunals’ in this Act to determine the rules of custom which form the basis of ownership and use of land in Vanuatu.

Following these amendments, subject to the drafting uncertainties noted, only nakamals and custom area land tribunals have jurisdiction to make decisions about customary land, with Island Courts (land) having jurisdiction to review in limited circumstances, including for lack of due process or fraud. ³⁰⁶ However, it would be overstating the case to say that these reforms have returned decision-making to traditional institutions. ³⁰⁷ While the composition and procedure of the tribunals have been informed by customary practices, ³⁰⁸ they are not traditional but legislated bodies. Nakamals are customary institutions, but their composition and practices have changed over time and, according to research, they are not uniformly recognised as having authority to make decisions on customary land. ³⁰⁹ Further, the processes laid down by the Act are not customary. For example, if a nakamal has not determined ownership within 30 days, the parties must be invited to submit to mediation, and if that fails they must apply to a custom area land tribunal to resolve the dispute. ³¹⁰ Further, decisions must be recorded in writing at a central office and this constitutes evidence of customary title. This poses the risk that a parallel system of registration for customary land titles may result in conflicting titles. Government lands and justice department officials are also involved, resulting in a complex arrangement that is far removed from customary processes.

In practice, the Act has again failed to keep land cases away from the common law courts. This is highlighted by the recent judicial review in Kwirinavanua v Tetrau, ³¹¹ which arose from a 2013 decision of the Efate Island Court regarding ownership of land. The Island Court was dealing with this matter because it had been filed in 1996, before jurisdiction was transferred to the Customary Land Tribunals and subsequently to the nakamals. Under the Customary Land Tribunal Act and the Custom Land Management Act, cases pending before the Island or Supreme Courts may not be dealt with under the new legislation without the consent of all parties. ³¹² The successful party in the Island Court, a representative of the Toumata Tetrau family (the ‘Family’), wrote to the Custom Land Management Office Coordinator requesting a certificate of recorded interest. Some time afterwards a certificate was issued, and in 2016, members of the Family were granted a negotiators’ certificate ³¹³ identifying the Family as custom owners of the land. ³¹⁴ However, on 9 November 2016, ³¹⁵ the Coordinator received notification from Family Saurei that they had appealed the Island Court decision and in January 2017 on the basis of the unresolved appeal the Coordinator notified the Family that the certificate of recorded interest was cancelled. On judicial review the Supreme Court quashed the decision to cancel the certificate, directing the issue of a new one to the Family. The Coordinator appealed to the Court of Appeal, which held that the decision of the Island Court was not final as there was an appeal on foot and upheld the Coordinator’s power to set aside a certificate (‘a document of limited importance in the scheme’) ³¹⁶ —a duty here where it had been wrongly issued. The Court ordered the substantive appeal to be continued before the Supreme Court. ³¹⁷

The parties to various cases pending before the Island or Supreme Courts are unlikely to consent ³¹⁸ to their being dealt with under the new regime, given that legal representation is not allowed before a customary land tribunal ³¹⁹ (or by implication a nakamal). And until final decisions are made, there can be no recorded interest. At some time in the future, one can assume that decisions relating to customary land will (subject to drafting uncertainties raised earlier) ³²⁰ be dealt with outside the common law courts. While the new Act is far from perfect, it is a step forward in the meaningful recognition of customary laws and processes in relation to land.