The Adjudication of Historical Evidence: A Comment and and Elaboration on a Proposal by Justice Lebel

The appropriate forum and procedures for deciding whether Aboriginal and treaty rights exists has been troubling for courts. In the early years after the enactment of section 35, and today, in a significant number of cases, the issue was decided in criminal proceedings. Often charges were laid for hunting or fishing without a license, or out of season. Such was the case in R. v. Marshall and R. v. Bernard when the Supreme Court of Canada was required to consider an appeal of a conviction for a provincial offence related to logging. Justice LeBel mused about the appropriateness of criminal proceedings to determine matters that had wide spread consequences on people who were not parties to the proceedings. This article looks at the alternative of using civil proceedings to address these matters, and tentatively concludes that it would be feasible if supports, such as adequate funding, were put in place. However, the article raises a larger concern with the approach the Supreme Court of Canada takes on history. In this case, and in others, the Court is attempting to read history in order to make a determination on the contemporary balance between Aboriginal and non-Aboriginal access to resources. This approach necessarily distorts history and sometimes results in puzzling conclusions. The article ends by contemplating a future process that could give full recognition to historical realities in order to inform contemporary rights