Draft: August 2003
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In another sense, the problem of whole cultural conceptions is linked to a more
difficult challenge namely that framing conflicts in terms of identity narrows these
conflicts in ways that obscure that some of these cases are actually about self-
determination. An important difference exists between conflicts that require for their
resolution the accommodation within mainstream laws of a particular practice or set of
traditions, and conflicts that require the accommodation of whole cultural conceptions,
the recognition of the right to self-determination, or a broad right to cultural autonomy.
The question of whether Canada has jurisdiction over the Sto:lo commercial fishery is
importantly distinct from the question of whether the Sto:lo commercial fishery can be
accommodated within the Canadian legal framework. And both these questions are
different from whether the Sto:lo fishery is central and integral to the Sto:lo identity or
way of life. In the Van der Peet case, the Supreme Court has been criticized not only for
getting Sto:lo identity wrong, and for creating a test which imports inauthentic elements
to that identity, but for strategically framing the matter in terms of identity and thereby
obscuring what this case is really about: namely self-determination.
In some important ways, this criticism is correct. An approach that focuses on
sorting out identity claims tends to interpret cases narrowly and limit the focus of legal or
political debate to assessing whether a particular practice or tradition can be
accommodated within a mainstream legal order. But two arguments can be made in
defence of identity approaches even in light of their limited nature. First, most legal cases
are about whether particular identity practices ought to be allowed or restricted, not
whether one people are justifiably governed by another. Moreover, in these more limited
cases, the project of considering, in the context of adjudication or deliberation, whether a
Convention