Police-government relations in the context of state-Aboriginal relations

Lamer C. J., in describing the nature of Aboriginal title, held that while it encompasses the power to use the land in ways which are not tied to traditional practices, traditions and customs, this power is limited in that the title-holders can not use the land in a way which might break the traditional connection to the land which established the title in the first place. [...] R. 507 [hereinafter Van der Peet], Lamer C. J. developed a test for the establishment of Aboriginal rights which demands of the claimant that they demonstrate that the present activity said to fall under the right be continuous with an practice, tradition or custom integral to the culture of the people claiming the right at the time of contact with Europeans. [...] Elsewhere Lamer C. J. states that the reason for the protection accorded these rights lies in the need to reconcile the prior presence of organized Aboriginal societies to the sovereignty of the Crown (see the discussion beginning at paragraph 39). [...] With the overview of the ways in which Aboriginal (and treaty) rights differ essentially from any other rights held by minority populations in Canada, we can now turn to the question of the form the discussion around the tension between police independence and political oversight should take in the context of disputes involving Aboriginal communities. [...] The key differences lie not in the fact that Aboriginal and treaty rights are group rights, nor simply in their having a different set of requirements for the government to meet should the government attempt to justify infringement, but rather in the source of these rights in non-Canadian original societies, and their being embedded in a fiduciary context, with the honour of the Crown engaged.