Passage for Questions 4 and 5
The following passage was written in the late 1980s.
The struggle to obtain legal recognition of aboriginal rights is a difficult one, and even if a right is written into the law there is no guarantee that the future will not bring changes to the law that undermine the right. For this reason, the federal government of Canada in 1982 extended constitutional protection to those aboriginal rights already recognized under the law. This protection was extended to the Indian, Inuit, and Métis peoples, the three groups generally thought to comprise the aboriginal population in Canada. But this decision has placed on provincial courts the enormous burden of interpreting and translating the necessarily general constitutional language into specific rulings. The result has been inconsistent recognition and establishment of aboriginal rights, despite the continued efforts of aboriginal peoples to raise issues concerning their rights.
Aboriginal rights in Canada are defined by the constitution as aboriginal peoples’ rights to ownership of land and its resources, the inherent right of aboriginal societies to self-government, and the right to legal recognition of indigenous customs. But difficulties arise in applying these broadly conceived rights. For example, while it might appear straightforward to affirm legal recognition of indigenous customs, the exact legal meaning of “indigenous” is extremely difficult to interpret. The intent of the constitutional protection is to recognize only long-standing traditional customs, not those of recent origin; provincial courts therefore require aboriginal peoples to provide legal documentation that any customs they seek to protect were practiced sufficiently long ago—a criterion defined in practice to mean prior to the establishment of British sovereignty over the specific territory. However, this requirement makes it difficult for aboriginal societies, which often relied on oral tradition rather than written records, to support their claims.
Furthermore, even if aboriginal peoples are successful in convincing the courts that specific rights should be recognized, it is frequently difficult to determine exactly what these rights amount to. Consider aboriginal land claims. Even when aboriginal ownership of specific lands is fully established, there remains the problem of interpreting the meaning of that “ownership.” In a 1984 case in Ontario, an aboriginal group claimed that its property rights should be interpreted as full ownership in the contemporary sense of private property, which allows for the sale of the land or its resources. But the provincial court instead ruled that the law had previously recognized only the aboriginal right to use the land and therefore granted property rights so minimal as to allow only the bare survival of the community. Here, the provincial court’s ruling was excessively conservative in its assessment of the current law. Regrettably, it appears that this group will not be successful unless it is able to move its case from the provincial courts into the Supreme Court of Canada, which will be, one hopes, more insistent upon a satisfactory application of the constitutional reforms.
Which one of the following most accurately states the main point of the passage?
The overly conservative rulings of Canada’s provincial courts have been a barrier to constitutional reforms intended to protect aboriginal rights.
The overwhelming burden placed on provincial courts of interpreting constitutional language in Canada has halted efforts by aboriginal peoples to gain full ownership of land.
Constitutional language aimed at protecting aboriginal rights in Canada has so far left the protection of these rights uncertain due to the difficult task of interpreting this language.
Constitutional reforms meant to protect aboriginal rights in Canada have in fact been used by some provincial courts to limit these rights.
Efforts by aboriginal rights advocates to uphold constitutional reforms in Canada may be more successful if heard by the Supreme Court rather than by the provincial courts.
Explanation for Question 4
This question requires the examinee to identify the main point of the passage. For an answer choice to be the main point of the passage, it must do more than simply express a claim with which the author would agree. The correct answer choice is the one that most accurately expresses the point of the passage as a whole.
The correct answer choice is (C). The passage discusses the Canadian federal government’s 1982 decision to extend constitutional protection to aboriginal rights. In the first paragraph the author claims that this decision has “placed on provincial courts the enormous burden of interpreting and translating the necessarily general constitutional language into specific rulings.” The rest of the passage details the difficulties that have been encountered as provincial courts have attempted to carry out this task. The second paragraph is concerned mainly with the difficulties involved in interpreting the legal meaning of “indigenous,” especially as it relates to the recognition of indigenous customs. The third paragraph focuses primarily on an example of the difficulties encountered in an attempt to interpret the meaning of “ownership.” Answer choice (C) best captures the main point of the passage as a whole. It is clear that the author thinks the protection of aboriginal rights is uncertain, and it is clear that the author feels this is due to the difficulties involved in interpreting the general language of the constitutional reforms.
Answer choice (A) is incorrect. Near the end of the last paragraph, the passage does mention one provincial court ruling that the author feels is “excessively conservative.” However, the author clearly intends this to merely be one example of a problem caused by the difficult task of interpreting the constitutional language, rather than the main point of the passage. Moreover, even the “excessively conservative” decision described in the last paragraph has not been a barrier to constitutional reform. The constitution was already reformed in 1982 to extend protection to aboriginal rights. The difficulties detailed in the passage have arisen in legal efforts to apply the 1982 constitutional changes.
Answer choice (B) is incorrect. While this answer choice does identify the crucial issue involving the “overwhelming burden placed on provincial courts of interpreting constitutional language,” it is incorrect inasmuch as it focuses only on “efforts by aboriginal peoples to gain full ownership of land.” It’s clear that the author thinks land ownership is only one of the important issues concerning aboriginal rights. In the second paragraph, the author also discusses the right of self-government and the right to legal recognition of indigenous customs. Moreover, while the passage indicates that the “excessively conservative” decision described in the last paragraph has been a setback to one aboriginal group’s efforts to gain full ownership of its land, it does not say that such efforts have been “halted” by the decision. In fact, the author suggests that the group in question may seek to pursue its efforts further before the Supreme Court of Canada (last sentence of the passage).
Answer choice (D) is incorrect. The author points to one example of a provincial court ruling that, in the author’s opinion, seems to limit aboriginal rights rather than protect them. However, it is incorrect to regard this as the main point of the passage. The author’s point throughout the passage as a whole concerns the difficulty of interpreting the general constitutional language aimed at protecting aboriginal rights, not simply that some courts have limited these rights.
Answer choice (E) is incorrect. The author does introduce the possibility that the Supreme Court of Canada may be better able to uphold constitutional reforms. The author even expresses hope that this is so. But it is inaccurate to regard this hope as the main point of the passage, because the Supreme Court is mentioned only in connection with one specific court case. It is not central to the author’s discussion.
Based on the number of test takers who answered this question correctly when it appeared on the LSAT, this was an easy question.
The passage provides evidence to suggest that the author would be most likely to assent to which one of the following proposals?
Aboriginal peoples in Canada should not be answerable to the federal laws of Canada.
Oral tradition should sometimes be considered legal documentation of certain indigenous customs.
Aboriginal communities should be granted full protection of all of their customs.
Provincial courts should be given no authority to decide cases involving questions of aboriginal rights.
The language of the Canadian constitution should more carefully delineate the instances to which reforms apply.
Explanation for Question 5
This question requires the examinee to use evidence from the passage to infer what the author would be most likely to believe. The question is not simply to identify something that the author states explicitly. Rather, the test taker must identify what can reasonably be inferred from what the author says.
The correct answer choice is (B). In the second paragraph the author discusses the aboriginal right to the legal recognition of indigenous customs. It is clear from the tenor of the discussion in the passage that the author believes that this right should be protected, but the author notes that there have been difficulties in securing this protection. According to the author, provincial courts have required legal documentation as evidence that a custom is long-standing. As the author points out at the end of the second paragraph, however, this requirement is difficult to meet for aboriginal societies, “which often relied on oral tradition rather than written records.” Given that the author believes that aboriginal customs should receive legal recognition, and given that the author regards the requirement of written documentation as an impediment to such recognition in many cases, it can be inferred that the author would be likely to assent to the statement that oral tradition should sometimes be considered legal documentation for certain indigenous customs.
Answer choice (A) is incorrect. While the author clearly feels that aboriginal rights should be protected, that is a far cry from thinking that aboriginal peoples should not be answerable to federal laws. More importantly, the author’s argument in favor of the legal recognition of aboriginal rights, and also the presumption that problems should be resolved in the Canadian courts, suggest that the author probably believes that aboriginal peoples should be answerable to Canadian laws.
Answer choice (C) is incorrect. The main point of the passage as a whole is that there are difficulties involved in interpreting the language of the constitutional protection of aboriginal rights. Importantly, the author clearly agrees with the intentions of the constitutional protection. In discussing the legal recognition of aboriginal customs in the second paragraph, the author claims that the “intent of the constitutional protection is to recognize only long-standing traditional customs, not those of recent origin.” Since the author never questions this intent, there is no reason to think that the author would agree that aboriginal peoples should be granted full protection of all of their customs.
Answer choice (D) is incorrect. The author asserts that provincial courts have been placed in the difficult position of interpreting general constitutional language. This assertion takes it for granted that the provincial courts are the correct venue for the interpretation and application of the constitutional reforms. (If the author believed otherwise, it would be incumbent on him or her to say as much, rather than simply observing that the provincial courts are in a difficult position.) Furthermore, the passage does not provide any other evidence that the author thinks that provincial courts should be eliminated from the process, or be stripped of their authority concerning issues of aboriginal rights.
Answer choice (E) is incorrect. The author’s main point is that there are difficulties inherent in interpreting the language involved in the constitutional protection of aboriginal rights in Canada. Tellingly, however, the author describes the relevant constitutional language as “necessarily general” (first paragraph), and there is no evidence to suggest that the author believes that the language of the Canadian constitution should be revised or rewritten.
Based on the number of test takers who answered this question correctly when it appeared on the LSAT, this was a difficult question.