Reconciliation: Indigenous Nation Sovereignty v. Crown Sovereignty

<e-notes> from [email protected] 5 February 2010 Edition with a 2016 Addendum Reconciliation: Resolving Conflict Between Two Absolute but Opposing Rights: Indigenous Nation “Sovereignty” vs. Crown “Sovereignty” What do you think was the earliest case in which the a federal division of powers. It cannot be defined as if Supreme Court of Canada talked of the need to "reconcile the Musqueam Band had continued to be a self- Aboriginal law and common law?" Can you think of any governing entity, or as if its members were not later cases where that discussion is continued? citizens of Canada and residents of British Columbia. This clear question was posed by Dr. Michael Posluns, Any definition of the existing right must take into author of Speaking With Authority: The Emergence of the account that it exists in the context of an industrial Vocabulary of First Nations’ Self-Government and The society with all of its complexities and competing Fourth World, coauthored with George Manuel. interests. The “existing right” in 1982 was one which had long been subject to regulation by the federal The discussion which follows is an effort to answer that government. It must continue to be so because only question via a free-flowing exploration. government can regulate with due regard to the One beginning point might be the Royal Proclamation, interests of all. 1763 in which King George III directed all within his The Supreme Court of Canada overturned that decision in command that the sovereignty of the indigenous nations 1990.2 It ruled the word “existing” had a great deal of was to be respected absolutely, that none of his subjects meaning. Earlier in 1990, the Supreme Court had issued were to enter upon indigenous lands, and that any its decision in R. v. Sioui,3 where the issue was whether extension of his sovereignty onto their lands was to take Georges Sioui and a group of fellow Hurons could cut place only after a Treaty had been entered into. some firewood, build a fire, and engage in some We jump ahead two centuries from 1763. It is 1982. traditional ceremonies in a provincial park. The Sioui Canada has patriated its Constitution, and in it the promise party said their activities were “within their rights”, and that existing aboriginal and treaty rights are recognized the Quebec Government said arresting them was “within and affirmed in s. 35. The Department of Justice is of the their rights”. firm belief that s. 35 is a throw-away feel-good section, The case went to the Supreme Court of Canada. Peter since there are no existing rights left. Hutchins, acting for the intervenor National Indian Not only was this the legal assumption, but, opinion had Brotherhood won the rare right to introduce new evidence it, there was a new reality at this point in time which First at the Supreme Court level – a document signed in 1760 Nations simply had to face. As the B.C. Court of Appeal by General Murray. Hutchins argued that the brief and put it in Sparrow1 in 1986: informal document constituted a treaty which guaranteed the Hurons, in exchange for their surrender, British The constitutional recognition of the right to fish protection and the free exercise of their religion, customs cannot entail restoring the relationship between and trade with the English. Indians and salmon as it existed 150 years ago. The world has changed. The right must now exist in the context of a parliamentary system of government and 2 [1990] 1 S.C.R. 1075 3 [1990] 1 S.C.R. 1025, 1990 CanLII 103 (S.C.C.) • 70 D.L.R. 1 R. v. Sparrow 1986 CanLII 172 (BC C.A.), (1986), 32 C.C.C. (4th) 427 • 56 C.C.C. (3d) 225 • [1990] 3 C.N.L.R. 127. Found (3rd) 65 (B.C.C.A.), pp. 90-1, overturned by Supreme Court of online at Canada.. http://www.canlii.org/en/ca/scc/doc/1990/1990canlii103/1990canlii103.html <e-notes> Reconciliation of Two Opposing Absolute Rights: First Nations “Sovereignty” vs. Crown “Sovereignty” -2- an informative <e-note> by <[email protected]> 5 February 2010 Edition customs in all parts of the territory frequented when it The Supreme Court decision was written by Justice is not incompatible with its occupancy is in my Antonio Lamer, prior to his appointment as Chief Justice. opinion the most reasonable way of reconciling the Justice Lamer’s Reasons for Decision followed this line: competing interests.” a) although the treaty gives the Hurons the freedom to Justice Lamer’s articulation of this task has endured in the carry on their customs and religion, it makes no jurisprudence, namely, choosing “from the various mention of the territory over which these rights may possible interpretations of common intention the one be exercised; which best reconciles" the interests of parties at the time the treaties were made. b) as there is no express indication of the territorial scope of the treaty, it must be interpreted by <<<<>>>> determining the intention of the parties at the time it The concept of reconciliation echoed in a second decision was concluded. When the historical context is given by the Supreme Court of Canada shortly after Sioui. In its full meaning, the interpretation that is called for is Sparrow, Chief Justice Dickson and Justice La Forest put that the parties contemplated that the rights guaranteed reconciliation of federal power and First Nation rights as by the treaty could be exercised over the entire something to be done voluntarily by the federal territory frequented by the Hurons in 1760, so long as government: the carrying on of the customs and rites was not incompatible with the particular use made by the There is no explicit language in the provision [s. Crown of this territory. 35(1)] that authorizes this Court or any court to assess the legitimacy of any government legislation that c) This interpretation would reconcile the Hurons' restricts aboriginal rights. Yet, we find that the words need to protect the exercise of their customs and the “recognition and affirmation” incorporate the desire of the British conquerors to expand; it gave the fiduciary relationship referred to earlier and so import British the necessary flexibility to be able to respond some restraint on the exercise of sovereign power. in due course to the increasing need to use Canada's Rights that are recognized and affirmed are not resources, in the event that Canada remained under absolute. British suzerainty, and it allowed the Hurons to continue carrying on their rites and customs on the Federal legislative powers continue, including, of lands frequented to the extent that those rites and course, the right to legislate with respect to Indians customs did not interfere with enjoyment of the lands pursuant to s. 91(24) of the Constitution Act, 1867. by their occupier; These powers must, however, now be read together with s. 35(1). In other words, federal power must be d) a provincial park accessible to the public for the reconciled with federal duty and the best way to purposes of education and cross country recreation achieve that reconciliation is to demand the was a type of occupancy which is not incompatible justification of any government regulation that with the exercise of Huron rites and customs. The infringes upon or denies aboriginal rights. activities with which the respondents are charged do not seriously compromise the Crown's objectives in <<<<>>>> occupying the park. Delgamuukw v. British Columbia4 , Justice McFarlane of e) Under s. 88 of the Indian Act, the Sioui party could the B.C. Court of Appeal in 1993 took a different run at therefore not be prosecuted since the activities in the issue. question were the subject of a treaty. “[284] During the course of these proceedings it “Accordingly,” Justice Lamer wrote, became apparent that there are two schools of thought. The first is an "all or nothing approach", which says “I conclude that in view of the absence of any express that the Indian nations were here first, that they have mention of the territorial scope of the treaty, it has to exclusive ownership and control of all the land and be assumed that the parties to the treaty of September 5 intended to reconcile the Hurons' need to protect the exercise of their customs and the desire of the British 4 1993 CanLII 4516 (BC C.A.); 104 D.L.R. (4th) 470 • [1993] 5 conquerors to expand. Protecting the exercise of the W .W .R. 97 <e-notes> Reconciliation of Two Opposing Absolute Rights: First Nations “Sovereignty” vs. Crown “Sovereignty” -3- an informative <e-note> by <[email protected]> 5 February 2010 Edition resources and may deal with them as they see fit. The In R. v. Gladstone,5 the Supreme Court of Canada upheld second is a co-existence approach, which says that the the Gladstone’s appeal of convictions for selling herring Indian interest and other interests can co-exist to a spawn on kelp without a license. large extent, and that consultation and reconciliation is Lamer C.J.C. continued at para. 73: the process by which the Indian culture can be preserved and by which other Canadians may be Because … distinctive aboriginal societies exist assured that their interests, developed over 125 years within, and are a part of, a broader social, political and of nationhood, can also be respected. The Indian economic community, over which the Crown is plaintiffs have taken the first step in recognizing the sovereign, there are circumstances in which, in order importance of other vested interests by not making a to pursue objectives of compelling and substantial claim to lands within the Territory held by others importance to that community as a whole (taking into under a fee simple title.” account the fact that aboriginal societies are part of that community), some limitation of those rights will In a separate decision in the same case, Mr. Justice be justifiable. Lambert wrote in dissent (and later quoted Justice Laforest in the Supreme Court of Canada decision which Aboriginal rights are a necessary part of the supported Justice Lambert’s dissent): reconciliation of aboriginal societies with the broader political community of which they are a part; limits So, in the end, the legal rights of the Indian people placed on those rights are, where the objectives will have to be accommodated within our total society furthered by those limits are of sufficient importance by political compromises and accommodations based to the broader community as a whole, equally a in the first instance on negotiation and agreement and necessary part of that reconciliation. ultimately in accordance with the sovereign will of the community as a whole. There, the Supreme Court followed a similar line of thinking as in Sioui, but made it clear reconciliation had to The legal rights of the Gitksan and Wet’suwet’en do with “interests”, not “sovereignty”, since all people, to which this law suit is confined, and which sovereignty was held by the Crown: “. . . distinctive allow no room for any approach other than the aboriginal societies exist within, and are a part of, a application of the law itself, and the legal rights of all broader social, political and economic community, over aboriginal peoples throughout British Columbia, form which the Crown is sovereign. . .” only one factor in the ultimate determination of what kind of community we are going to have in British Here the Gladstone Court slides into a third type of Columbia and throughout Canada in the years ahead. reconciliation: not reconciliation of rights, not reconciliation of interests, but what might be termed <<<<>>>> “social reconciliation.” There is no indication the Court is Reconciliation expressed in similar terms appeared again aware of the difference categories of reconciliation which in 1996 with the Gladstone, Van der Peet and Smokehouse are at play. trilogy. As B.C. Justice D.H Vickers pointed out a decade In the context of social reconciliation, aboriginal rights later in Tsilqhot’in, essentially this was a revisiting of the had to be balanced against such interests as “the pursuit of Court’s views in Sparrow: economic and regional fairness, and the recognition of the In defining the scope of Aboriginal rights protected by historical reliance upon, and participation in, the fishery s. 35(1), Lamer C.J.C. re-interpreted the Sparrow by non-aboriginal groups . . . In the right circumstances, theory of reconciliation (a means to reconcile such objectives are in the interest of all Canadians and, constitutional recognition of Aboriginal rights with more importantly, the reconciliation of aboriginal societies federal legislative power) as a means to work out the with the rest of Canadian society may well depend on their appropriate place of Aboriginal people within the successful attainment.” Canadian state. 5 [1996] 2 S.C.R. 723. Parallel citations: 1996 CanLII 160 (S.C.C.) • 137 D.L.R. (4th) 648 • [1996] 9 W .W .R. 149 • 109 C.C.C. (3d) 193 • 50 C.R. (4th) 111 • [1996] 4 C.N.L.R. 65 • 23 B.C.L.R. (3d) 155. <e-notes> Reconciliation of Two Opposing Absolute Rights: First Nations “Sovereignty” vs. Crown “Sovereignty” -4- an informative <e-note> by <[email protected]> 5 February 2010 Edition There was no reciprocity to the concept, because the Having set the stage with these potential polarities, the amalgamation of the aboriginal society into the larger Court sets out what constitutes “compelling and society makes reciprocity no longer necessary. “The larger substantial objectives” which might allow the Crown to society” always wins, even if the right being defended is override “aboriginal rights” and pay compensation for critical to survival of the aboriginal society and conceding having done so pursuant to the Sparrow test. After quoting the right is of only marginal interest to “the larger society.” from Van der Peet, Chief Justice Lamer states in para. 72: As the Court said, the purposes underlying aboriginal “. . . the import of these purposes is that the objectives rights must inform not only the definition of the rights but which can be said to be compelling and substantial also the identification of those limits on the rights which will be those directed at either the recognition of the are justifiable. Because distinctive aboriginal societies prior occupation of North America by aboriginal exist within, the Court said, and are a part of, a broader peoples or – and at the level of justification it is this social, political and economic community, over which the purpose which may well be most relevant – at the Crown is sovereign, there are circumstances in which, in reconciliation of aboriginal prior occupation with the order to pursue objectives of compelling and substantial assertion of the sovereignty of the Crown.” importance to that community as a whole (taking into account the fact that aboriginal societies are a part of that This revised theory of reconciliation then provides the community), some limitation of those rights will be rationale for the wide range of legislative objectives that justifiable. could meet the compelling and substantial requirement set out in Sparrow. That is what s. 35 of the Canadian Constitution, 1982 is all about, the Court stated in paragraph 73, The Court goes on to say that Aboriginal rights are a necessary part of the reconciliation of aboriginal societies “Aboriginal rights are recognized and affirmed by s. with the broader political community of which they are 35(1) in order to reconcile the existence of distinctive part; limits placed on those rights are, where the aboriginal societies prior to the arrival of Europeans in objectives furthered by those limits are of sufficient North America with the assertion of Crown importance to the broader community as a whole, equally sovereignty over that territory; they are the means by a necessary part of that reconciliation. which the critical and integral aspects of those <<<<>>>> societies are maintained.” The unbalanced definition of status of the two societies, The mystical “assertion of Crown sovereignty over one which is said to have had “prior occupation” and the Canadian territory” simply slides off the Gladstone other said to have “sovereignty” is further compounded in Court’s pen and is stated as an indisputable fact. No effort Van der Peet which also was decided by the Supreme is made to justify the statement. Neither is there any Court of Canada in 1996.7 Van der Peet sets out certain explanation as to why the “distinctive aboriginal societies” tests which the “aboriginal party” is required to meet but seem to have only “occupied” the land without any which are not required of the “Canadian party”. mention of their sovereignty, while the Crown is accorded sovereignty without prior occupation.6 The asymmetry begins with the characterization of the rights of the “aboriginal party” as “aboriginal rights”. The “Canadian party” is not required to demonstrate rights 6 A footnote in Prof. Kent McNeil’s “Reconciliation and the because it has “sovereignty”. Supreme Court: the Opposing Views of Chief Justices Lamer The Court saw the two parties not as being in a bilateral and McLachlin”, published in the Indigenous Law Journal vol. 2, Fall 2003, provides a variety of references to discussions on this subject of how the Crown could have obtained sovereignty without the consent of the indigenous peoples, noting that the Canada’s Underlying Title: Comparing perspectives on Legal Supreme Court had “deftly avoided” this issue. See Michael Ideology” in Curtis Cook and Juan D. Lindau, eds., Aboriginal Asch and Patrick Macklem, “Aboriginal Rights and Canadian Rights and Self-Government: The Canadian and Mexican Sovereignty: An Essay on R. v. Sparrow” (1991 29 Alta L. Rev. Experience in North American Perspective (Montreal & 498; John Borrows, “Sovereignty’s Alchemy: An Analysis of Kingston: McGill-Queen’s University Press, 2000) 148. . Delgamuukw v. British Columbia” (1999) 37 Osgoode Hall L.J. 7 537; Michael Asch, “First Nations and the Derivation of R. v. Van der Peet, [1996] 2 S.C.R. 507. <e-notes> Reconciliation of Two Opposing Absolute Rights: First Nations “Sovereignty” vs. Crown “Sovereignty” -5- an informative <e-note> by <[email protected]> 5 February 2010 Edition relationship, but rather in a fiduciary relationship: Conferences mandated by the Constitution was to “identify and define” the rights which were to be “A purposive analysis of s. 35(1) must take place in “recognized and affirmed” by s. 35. Those conferences light of the general principles applicable to the legal failed to fulfil their mandate, as year after year they relationship between the Crown and aboriginal foundered on the proposition advanced by federal and peoples. This relationship is a fiduciary one and a provincial governments that the box of rights was empty generous and liberal interpretation should accordingly until such time as the parties had agreed as to which rights be given in favour of aboriginal peoples. Any would be put in the box, while the First Nations, Inuit and ambiguity as to the scope and definition of s. 35(1) Metis parties to the conference insisted that the box was must be resolved in favour of aboriginal peoples.” already full, and the task of the conference was simply to The Court saw this relationship as “pre-existing doctrine” conduct an inventory of the rights which the box which was elevated “to constitutional status.” If, however, contained. this doctrine was “pre-existing”, it must have been The Supreme Court of Canada decided in Van der Peet to established when the “Doctrine of Discovery” was still set out the criteria for the unfulfilled task of “identifica- fully at play. In other words, the adoption of the “fiduciary tion and definition”. An “aboriginal right”, it said had to relationship” rather than the “bilateral relationship” is be “integral” to the aboriginal society claiming the right. fruit picked from the tree of the Doctrine of Discovery. “To be integral, a practice, custom or tradition must be of Understanding this point is critical to understanding the central significance to the aboriginal society in question – diminishing of the rights of the indigenous people from one of the things which made the culture of the society rights in a bilateral context to being mere “aboriginal distinctive. A court cannot look at those aspects of the rights” in a fiduciary relationship. aboriginal society that . . . are only incidental or As Van der Peet points out, occasional to that society. It is those distinctive features that need to be acknowledged and reconciled with the “Aboriginal rights existed and were recognized under sovereignty of the Crown,” Van der Peet continues. the common law. They were not created by s. 35(1) but subsequent to s. 35(1) they cannot be Note the asymmetry: where a claim by an aboriginal extinguished. They can, however, be regulated or society of a right conflicts with the Crown’s claim to infringed consistent with the justificatory test laid out jurisdiction, the Crown is not required to justify that its in R. v. Sparrow.” exercise of its jurisdiction is “integral to Canadian society”. Van der Peet continues in paragraph 31: The Van der Peet Court saw its approach to s. 35(1) as “. . . what s. 35(1) does is provide the constitutional being supported by the prior jurisprudence of the Court, framework through which the fact that aboriginals citing Calder as the case in point. In that decision, Justice lived on the land in distinctive societies, with their Hall recognized the existence of “aboriginal title”base on own practices, traditions and cultures, is acknow- the fact that the land to which they were claiming title had ledged and reconciled with the sovereignty of the “been in their possession from time immemorial" Crown. The substantive rights which fall within the provision must be defined in light of this purpose; the Justice Judson in Calder had explained the origins of the aboriginal rights recognized and affirmed by s. 35(1) Nishga's aboriginal title as follows, at p. 328: must be directed towards the reconciliation of the “Although I think that it is clear that Indian title in pre-existence of aboriginal societies with the British Columbia cannot owe its origin to the sovereignty of the Crown.”8 Proclamation of 1763, the fact is that when the settlers The “definition of rights” phrase echoes back to the came, the Indians were there, organized in societies Constitution Act, 1982 as it read in 1982 but no longer and occupying the land as their forefathers had done reads as it did then. The purpose of the First Ministers for centuries. This is what Indian title means and it does not help one in the solution of this problem to call it a "personal or usufructuary right". What they 8 In R. v. Jacobs, 1998 CanLII 3988 (BC. S.C.), the court are asserting in this action is that they had a right to interpreted this to mean that “s. 35(1) only recognizes and continue to live on their lands as their forefathers had affirms aboriginal rights that can be reconciled with sovereignty. <e-notes> Reconciliation of Two Opposing Absolute Rights: First Nations “Sovereignty” vs. Crown “Sovereignty” -6- an informative <e-note> by <[email protected]> 5 February 2010 Edition lived and that this right has never been lawfully discoverer and the natives, were to be regulated by extinguished.” themselves. The rights thus acquired being exclusive, no other power could interpose between them. Van der Peet also looked to Johnson v. M‘Intosh,9 the first of the decisions of United States Supreme Court Chief In the establishment of these relations, the rights of the Justice John Marshall on aboriginal title. In the course of original inhabitants were, in no instance, entirely his decision, the Chief Justice outlined the history of the disregarded; but were necessarily, to a considerable exploration of North America by the countries of Europe extent, impaired. They were admitted to be the and the relationship between this exploration and rightful occupants of the soil, with a legal as well as aboriginal title. In his view, aboriginal title is the right of just claim to retain possession of it, and to use it First Nations to land arising from the intersection of their according to their own discretion; but their rights to pre-existing occupation of the land with the assertion of complete sovereignty, as independent nations, were sovereignty over that land by various European nations. necessarily diminished, and their power to dispose of The substance and nature of aboriginal rights to land are the soil at their own will, to whomsoever they pleased, determined by this intersection. As the Chief Justice wrote: was denied by the original fundamental principle, that discovery gave exclusive title to those who made it. On the discovery of this immense continent, the great nations of Europe were eager to appropriate to While the different nations of Europe respected the themselves so much of it as they could respectively right of the natives, as occupants, they asserted the acquire. Its vast extent offered an ample field to the ultimate dominion to be in themselves; and claimed ambition and enterprise of all; and the character and and exercised, as a consequence of this ultimate religion of its inhabitants afforded an apology for dominion, a power to grant the soil, while yet in considering them as a people over whom the superior possession of the natives. These grants have been genius of Europe might claim an ascendency. understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy. The potentates of the Old World found no difficulty in convincing themselves that they made ample This reasoning assumes that the corollary of the Doctrine compensation to the inhabitants of the new, by of Discovery is that the rights of the First Nations to bestowing on them civilization and Christianity, in sovereignty, as independent nations, are “necessarily exchange for unlimited independence. But, as they diminished.” In Canadian courts, the rights are further were all in pursuit of nearly the same object, it was diminished to that only of “prior occupants”. necessary, in order to avoid conflicting settlements, Successfully attacking this reasoning has been made easier and consequent war with each other, to establish a now that the its foundation, the Doctrine of Discovery, has principle, which all should acknowledge as the law by been rejected as invalid. But until the corollary concept of which the right of acquisition, which they all asserted, “necessary diminishment” is also vanquished, there will should be regulated as between themselves. be a lack of symmetry in the relationship of the parties in This principle was, that discovery gave title to the their quest for “reconciliation”. government by whose subjects, or by whose authority, The Van der Peet court also quoted from “the legal it was made, against all other European governments, literature” for support to its position that s. 35(1) provides which title might be consummated by possession. the constitutional framework for reconciliation of the The exclusion of all other Europeans, necessarily gave pre-existence of distinctive aboriginal societies occupying to the nation making the discovery the sole right of the land with Crown sovereignty. It cited Mark Walter’s acquiring the soil from the natives, and establishing comments on Delgamuukw v. British Columbia. that the settlements upon it. It was a right with which no essence of aboriginal rights is their bridging of aboriginal Europeans could interfere. It was a right which all and non-aboriginal cultures.10 asserted for themselves, and to the assertion of which, “The challenge of defining aboriginal rights stems by others, all assented. Those relations which were to exist between the 10 “British Imperial Constitutional Law and Aboriginal Rights: A Comment on Delgamuukw v. British Columbia” (1992), 17 9 21 U.S. (8 W heat.) 543 (1823). Queen’s L.J. 350, pp. 412-13. <e-notes> Reconciliation of Two Opposing Absolute Rights: First Nations “Sovereignty” vs. Crown “Sovereignty” -7- an informative <e-note> by <[email protected]> 5 February 2010 Edition from the fact that they are rights peculiar to the practices, customs and traditions – the test for meeting of two vastly dissimilar legal cultures; identifying the aboriginal rights recognized and consequently there will always be a question about affirmed by s. 35(1) must be directed at identifying the which legal culture is to provide the vantage point crucial elements of those pre-existing distinctive from which rights are to be defined. . . . a morally and societies. It must, in other words, aim at identifying politically defensible conception of aboriginal rights the practices, traditions and customs central to the will incorporate both legal perspectives.” aboriginal societies that existed in North America prior to contact with the Europeans. . . The Van der Peet Court also cited Professor Brian Slattery’s suggestion “that the law of aboriginal rights is Framing “aboriginal rights” in “terms cognizable to the neither English nor aboriginal in origin: it is a form of Canadian legal and constitutional structure” is another intersocietal law that evolved from long-standing practices aspect of diminishment:. linking the various communities" and that such rights “As has already been noted, one of the fundamental concern "the status of native peoples living under the purposes of s. 35(1) is the reconciliation of the Crown's protection, and the position of their lands, pre-existence of distinctive aboriginal societies with customary laws, and political institutions."11 the assertion of Crown sovereignty. Courts adjudicat- Thus bolstered with Canadian, American, and even ing aboriginal rights claims must, therefore, be sensi- Australian jurisprudence, the Court was ready to adopt the tive to the aboriginal perspective, but they must also basic proposition it had put forward: be aware that aboriginal rights exist within the general legal system of Canada. To quote again Walters, at p. “. . . the aboriginal rights recognized and affirmed by 413: "a morally and politically defensible conception s. 35(1) are best understood as, first, the means by of aboriginal rights will incorporate both [aboriginal which the Constitution recognizes the fact that prior to and non-aboriginal] legal perspectives". The the arrival of Europeans in North America the land definition of an aboriginal right must, if it is truly to was already occupied by distinctive aboriginal reconcile the prior occupation of Canadian territory by societies, and as, second, the means by which that aboriginal peoples with the assertion of Crown prior occupation is reconciled with the assertion of sovereignty over that territory, take into account the Crown sovereignty over Canadian territory. The aboriginal perspective, yet do so in terms which are content of aboriginal rights must be directed at cognizable to the non-aboriginal legal system. fulfilling both of these purposes. . .” There is no symmetry in this approach, nor is any Unfortunately, the tests the Court utilized for “identifying justification for lack of symmetry offered. The reciprocal Aboriginal Rights in Section 35(1)” would carry the proposition is not required of the Crown. The Crown does indelible mark of “necessary diminishment”, however not have to reconcile the Canadian legal system with discredited or shaky that proposition might be. rights asserted or claimed by First Nations. There is no There would be more “necessary diminishment” to come: requirement that the common law take into account “the Van der Peet holds that only “crucial elements” of aboriginal perspective”. aboriginal societies, and these are further diminished by There is, however, one brief plea for symmetry: insisting that they be proven to have existed “prior to contact” and “framed in terms cognizable to the Canadian “It is possible, of course, that the Court could be said legal and constitutional structure”: to be "reconciling" the prior occupation of Canada by aboriginal peoples with Crown sovereignty through “In order to fulfil the purpose underlying s. 35(1) – either a narrow or broad conception of aboriginal i.e., the protection and reconciliation of the interests rights; the notion of "reconciliation" does not, in the which arise from the fact that prior to the arrival of abstract, mandate a particular content for aboriginal Europeans in North America aboriginal peoples lived rights. However, the only fair and just reconciliation on the land in distinctive societies, with their own is, as Walters suggests, one which takes into account the aboriginal perspective while at the same time 11 taking into account the perspective of the common Brian Slattery, "The Legal Basis of Aboriginal Title", in Frank law. True reconciliation will, equally, place weight on Cassidy, ed., Aboriginal Title in British Columbia: Delgamuukw v. The Queen (1992), at pp. 120-21). each.” <e-notes> Reconciliation of Two Opposing Absolute Rights: First Nations “Sovereignty” vs. Crown “Sovereignty” -8- an informative <e-note> by <[email protected]> 5 February 2010 Edition period prior to the assertion of sovereignty by the Crown.13 Alas, the plea is too late: this symmetry takes place only if the First Nation party is able to leap all the hurdles in The McLachlin Dissent in Van der Peet order to demonstrate the existence of an aboriginal right, while the Crown’s lane contains no hurdles at all: : It was Justice Beverly McLachlin – now Chief Justice of the Supreme Court – who wrote the most scathing “Courts must identify precisely the nature of the claim dissenting opinion in Van der Peet, addressing what being made in determining whether an aboriginal Justice Vickers later termed “the more problematic claimant has demonstrated the existence of an aspects” of the Chief Justice’s reasons. She characterized aboriginal right. the majority views as being “incomplete”. . . . in assessing a claim to an aboriginal right a court Justice McLachlin quoted from the decision of Chief must first identify the nature of the right being Justice Dickson and Justice La Forest in Sparrow where claimed; in order to determine whether a claim meets that decision quoted Professor Lyon in "An Essay on the test of being integral to the distinctive culture of Constitutional Interpretation"14 in giving a much more the aboriginal group claiming the right, the court must hearty interpretation to the meaning of s.35: first correctly determine what it is that is being claimed. The correct characterization of the appellant's . . . the context of 1982 is surely enough to tell us that claim is of importance because whether or not the this is not just a codification of the case law on evidence supports the appellant's claim will depend, in aboriginal rights that had accumulated by 1982. significant part, on what, exactly, that evidence is Section 35 calls for a just settlement for aboriginal being called to support. peoples. It renounces the old rules of the game under which the Crown established courts of law and denied . . . To reconcile aboriginal societies with Crown those courts the authority to question sovereign claims sovereignty it is necessary to identify the distinctive made by the Crown. features of those societies; it is precisely those distinctive features which need to be acknowledged Precisely. and reconciled with the sovereignty of the Crown. Justice McLachhlin continued her attack: “. . . The time period that a court should consider in It may not be wrong to assert, as the Chief Justice identifying whether the right claimed meets the does, that the dual purposes of s. 35(1) are first to standard of being integral to the aboriginal community recognize the fact that the land was occupied prior to claiming the right is the period prior to contact European settlement and second, to reconcile the between aboriginal and European societies. Because assertion of sovereignty with this prior occupation. it is the fact that distinctive aboriginal societies lived on the land prior to the arrival of Europeans that But it is, with respect, incomplete. As the foregoing underlies the aboriginal rights protected by s. 35(1), it passages from Sparrow attest, s. 35(1) recognizes not is to that pre-contact period that the courts must look only prior aboriginal occupation, but also a prior legal in identifying aboriginal rights.12 regime giving rise to aboriginal rights which persist, absent extinguishment. And it seeks not only to “. . . It is not the fact that aboriginal societies existed reconcile these claims with European settlement and prior to Crown sovereignty that is relevant; it is the sovereignty but also to reconcile them in a way that fact that they existed prior to the arrival of Europeans in North America. As such, the relevant time period is the period prior to the arrival of Europeans, not the 13 Delgamuukw in the Supreme Court of Canada added two additional hurdles: Section 35(1), since its purpose is to reconcile the prior presence of aboriginal peoples with the assertion of Crown sovereignty, must recognize and affirm both aspects of that prior presence -- first, the occupation of land, and second, the prior social organization and distinctive cultures of 12 As Prof. Kent McNeil has observed in “Reconciliation and the aboriginal peoples on that land. Supreme Court” (2003), the promise of giving “equal weight” is 14 negated by the tests which “reveal just how little aboriginal (1988), 26 Osgoode Hall L.J. 95, at p. 100, Dickson C.J. and perspectives really count.” La Forest J. continued at p. 1106. <e-notes> Reconciliation of Two Opposing Absolute Rights: First Nations “Sovereignty” vs. Crown “Sovereignty” -9- an informative <e-note> by <[email protected]> 5 February 2010 Edition provides the basis for a just and lasting settlement of peoples and their descendants. It stipulated that aboriginal claims consistent with the high standard aboriginal people not be permitted to sell their land which the law imposes on the Crown in its dealings directly but only through the intermediary of the with aboriginal peoples. Crown. Following these precepts, this Court in Sparrow The purpose of this stipulation was to ensure that the decreed, at pp. 1106-7, that s. 35(1) be construed in a aboriginal peoples obtained a fair exchange for the generous, purposive and liberal way. It represents "a rights they enjoyed in the territories on which they had solemn commitment that must be given meaningful traditionally lived an exchange which would ensure content" (p. 1108). It embraces and confirms the the sustenance not only of the current generation but fiduciary obligation owed by the government to also of generations to come. . . aboriginal peoples (p. 1109). It does not oust the ... federal power to legislate with respect to aboriginals, These arrangements bear testimony to the acceptance nor does it confer absolute rights. Federal power is to by the colonizers of the principle that the aboriginal be reconciled with aboriginal rights by means of the peoples who occupied what is now Canada were doctrine of justification. The federal government can regarded as possessing the aboriginal right to live off legislate to limit the exercise of aboriginal rights, but their lands and the resources found in their forests and only to the extent that the limitation is justified and streams to the extent they had traditionally done so. only in accordance with the high standard of The fundamental understanding – the Grundnorm of honourable dealing which the Constitution and the law settlement in Canada – was that the aboriginal people imposed on the government in its relations with could only be deprived of the sustenance they aboriginals (p. 1109). [emphasis added] traditionally drew from the land and adjacent waters To summarize, a court approaching the question of by solemn treaty with the Crown, on terms that would whether a particular practice is the exercise of a ensure to them and to their successors a replacement constitutional aboriginal right under s. 35(1) must for the livelihood that their lands, forests and streams adopt an approach which: (1) recognizes the dual had since ancestral times provided them. . . purposes of s. 35(1) (to preclude extinguishment and ... to provide a firm foundation for settlement of . . . We apply the common law, but the common law aboriginal claims); (2) is liberal and generous toward we apply must give full recognition to the pre-existing aboriginal interests; (3) considers the aboriginal claim aboriginal tradition. in the context of the historic way of life of the people . . . I share the concern of L'Heureux Dubé J. that the asserting it; and (4) above all, is true to the position of Chief Justice defines the rights at issue with too much the Crown throughout Canadian history as trustee or particularity, enabling him to find no aboriginal right fiduciary for the first peoples of this country. where a different analysis might find one. By ... insisting that Mrs. Van der Peet's modern practice of This much appears from the Royal Proclamation of selling fish be replicated in pre contact Sto:lo 1763, R.S.C., 1985, App. II, No. 1, which set out the practices, he effectively condemns the Sto:lo to rules by which the British proposed to govern the exercise their right precisely as they exercised it territories of much of what is now Canada. The hundreds of years ago and precludes a finding that the Proclamation, while not the sole source of aboriginal sale constitutes the exercise of an aboriginal right. rights, recognized the presence of aboriginals as existing occupying peoples. It further recognized that Madam Justice McLachlin also criticized that the they had the right to use and alienate the rights they approach of Chief Justice Lamer in his decision was enjoyed the use of those territories. “indeterminate and ultimately may speak more to the politically expedient than to legal entitlement. The assertion of British sovereignty was thus expressly recognized as not depriving the aboriginal The imprecision of the proposed test is apparent. "In people of Canada of their pre existing rights; the the right circumstances", themselves undefined, maxim of terra nullius was not to govern here. governments may abridge aboriginal rights on the Moreover, the Proclamation evidences an underlying basis of an undetermined variety of considerations. concern for the continued sustenance of aboriginal While "account" must be taken of the native interest <e-notes> Reconciliation of Two Opposing Absolute Rights: First Nations “Sovereignty” vs. Crown “Sovereignty” -10- an informative <e-note> by <[email protected]> 5 February 2010 Edition and the Crown's fiduciary obligation, one is left interests require that we permit the Crown to require a uncertain as to what degree. judicially-authorized transfer of the aboriginal right to non-aboriginals without the consent of the aboriginal At the broadest reach, whatever the government of the people, without treaty, and without compensation? I day deems necessary in order to reconcile aboriginal cannot think it does. and non aboriginal interests might pass muster. In narrower incarnations, the result will depend on On this view, the right imposes its own internal limit doctrine yet to be determined. Upon challenge in the equivalence with what by ancestral law and custom courts, the focus will predictably be on the social the aboriginal people in question took from the justifiability of the measure rather than the rights resource. The government may impose additional guaranteed. limits under the rubric of justification to ensure that the right is exercised responsibly and in a way that Courts may properly be expected, the Chief Justice preserves it for future generations. There is no need to suggests, not to be overly strict in their review; as impose further limits on it to affect reconciliation under s. 1 of the Charter, the courts should not negate between aboriginal and non aboriginal peoples. the government decision, so long as it represents a [emphasis added] "reasonable" resolution of conflicting interests. This, with respect, falls short of the "solid constitutional The second reason why it is unnecessary to adopt the base upon which subsequent negotiations can take broad doctrine of justification proposed by the Chief place" of which Dickson C.J. and La Forest J. wrote in Justice is that other means, yet unexploited, exist for Sparrow, at p. 1105. resolving the different legal perspectives of aboriginal and non aboriginal people. In my view, a just Again, “”Precisely.” calibration of the two perspectives starts from the Madam Justice McLachlin made a third observation: “the premise that full value must be accorded to such proposed departure from the principle of justification aboriginal rights as may be established on the facts of elaborated in Sparrow is unnecessary to provide the the particular case. "reconciliation" of aboriginal and non aboriginal interests Only by fully recognizing the aboriginal legal which is said to require it. entitlement can the aboriginal legal perspective be “The Chief Justice correctly identifies reconciliation satisfied. At this stage of the process – the stage of between aboriginal and non aboriginal communities as defining aboriginal rights – the courts have an a goal of fundamental importance. This desire for important role to play. But that is not the end of the reconciliation, in many cases long overdue, lay behind matter. The process must go on to consider the non- the adoption of s. 35(1) of the Constitution Act, 1982. aboriginal perspective – how the aboriginal right can As Sparrow recognized, one of the two fundamental be legally accommodated within the framework of non purposes of s. 35(1) was the achievement of a just and aboriginal law. lasting settlement of aboriginal claims. It was Justice McLachlin’s view that reconciliation The Chief Justice also correctly notes that such a between Aboriginal and non Aboriginal peoples could be settlement must be founded on reconciliation of achieved in a way that was more respectful of aboriginal rights with the larger non aboriginal culture constitutional principles. She noted that Aboriginal and in which they must, of necessity, find their exercise. It non-Aboriginal perspectives have historically been is common ground that ". . . a morally and politically reconciled through treaties. Thus she argued for defensible conception of aboriginal rights will reconciliation through negotiated settlements. incorporate both [the] legal perspectives" of the "two Traditionally, this has been done through the treaty vastly dissimilar legal cultures" of European and process, based on the concept of the aboriginal people aboriginal cultures": Walters, supra, at pp. 413 and and the Crown negotiating and concluding a just 412, respectively. solution to their divergent interests, given the The question is how this reconciliation of the different historical fact that they are irretrievably compelled to legal cultures of aboriginal and non aboriginal peoples live together. At this stage, the stage of reconciliation, is to be accomplished. More particularly, does the the courts play a less important role. It is for the goal of reconciliation of aboriginal and non-aboriginal aboriginal peoples and the other peoples of Canada to <e-notes> Reconciliation of Two Opposing Absolute Rights: First Nations “Sovereignty” vs. Crown “Sovereignty” -11- an informative <e-note> by <[email protected]> 5 February 2010 Edition work out a just accommodation of the recognized diminish the substance of the right that s. 35(1) of aboriginal rights. the Constitution Act, 1982 guarantees to the aboriginal people. This no court can do. [emphasis This process – definition of the rights guaranteed by s. added] 35(1) followed by negotiated settlements – is the means envisioned in Sparrow, as I perceive it, for I therefore conclude that a government limitation reconciling the aboriginal and non aboriginal legal on an aboriginal right may be justified, provided perspectives. It has not as yet been tried in the case of the limitation is directed to ensuring the the Sto:lo. A century and one half after European conservation and responsible exercise of the right. settlement, the Crown has yet to conclude a treaty Limits beyond this cannot be saved on the ground with them. that they are required for societal peace or reconciliation. Specifically, limits that have the Until we have exhausted the traditional means by effect of transferring the resource from aboriginal which aboriginal and non aboriginal legal people without treaty or consent cannot be perspectives may be reconciled, it seems difficult to justified. Short of repeal of s. 35(1), such transfers assert that it is necessary for the courts to suggest can be made only with the consent of the aboriginal more radical methods of reconciliation possessing the people. It is for the governments of this country potential to erode aboriginal rights seriously. and the aboriginal people to determine if this I have argued that the broad approach to justification should be done, not the courts. In the meantime, it proposed by the Chief Justice does not conform to the is the responsibility of the Crown to devise a authorities, is indeterminate, and is, in the final regulatory scheme which ensures the responsible analysis unnecessary. Instead, I have proposed that use of the resource and provides for the division of justifiable limitation of aboriginal rights should be what remains after conservation needs have been confined to regulation to ensure their exercise met between aboriginal and non aboriginal peoples. conserves the resource and ensures responsible use. <<<<>>>> There remains a final reason why the broader view of justification should not be accepted. It is, in my The final case in 1996 involving “reconciliation” was respectful opinion, unconstitutional. Adams15 , which provides an example of a situation where the broader public interest did not justify a prima facie The Chief Justice's proposal comes down to this. In infringement of an Aboriginal right. The result of that case certain circumstances, aboriginals may be required to is summarized by Chief Justice Lamer, at paragraph 58: share their fishing rights with non aboriginals in order to effect a reconciliation of aboriginal and non I have some difficulty in accepting, in the circum- aboriginal interests. In other words, the Crown may stances of this case, that the enhancement of sports convey a portion of an aboriginal fishing right to fishing per se is a compelling and substantial objective others, not by treaty or with the consent of the for the purposes of s. 35(1). While sports fishing is an aboriginal people, but by its own unilateral act. I important economic activity in some parts of the earlier suggested that this has the potential to violate country, in this instance, there is no evidence that the the Crown's fiduciary duty to safeguard aboriginal sports fishing that this scheme sought to promote had rights and property. a meaningful economic dimension to it. But my concern is more fundamental. How, On its own, without this sort of evidence, the without amending the Constitution, can the Crown enhancement of sports fishing accords with neither of cut down the aboriginal right? The exercise of the the purposes underlying the protection of aboriginal rights guaranteed by s. 35(1) is subject to rights, and cannot justify the infringement of those reasonable limitation to ensure that they are used rights. It is not aimed at the recognition of distinct responsibly. But the rights themselves can be aboriginal cultures. Nor is it aimed at the diminished only through treaty and constitutional reconciliation of aboriginal societies with the rest of amendment. Canadian society, since sports fishing, without To reallocate the benefit of the right from aboriginals to non-aboriginals, would be to 15 1996 CanLII 169 (S.C.C.), [1996] 3 S.C.R. 101 <e-notes> Reconciliation of Two Opposing Absolute Rights: First Nations “Sovereignty” vs. Crown “Sovereignty” -12- an informative <e-note> by <[email protected]> 5 February 2010 Edition evidence of a meaningful economic dimension, is not the recognition that “distinctive aboriginal societies "of such overwhelming importance to Canadian exist within, and are a part of, a broader social, society as a whole" (Gladstone, at para. 74) to warrant political and economic community” (at para. 73). the limitation of aboriginal rights. [emphasis added] In my opinion, the development of agriculture, forestry, <<<<>>>> mining, and hydroelectric power, the general economic development of the interior of British Columbia, In 1997, in Delgamuukw16 at the Supreme Court of protection of the environment or endangered species, Canada, Chief Justice Lamer referred back to his Reasons the building of infrastructure and the settlement of for Decision in Van der Peet. There, he said he had foreign populations to support those aims, are the kinds explained, reconciliation between prior occupation by of objectives that are consistent with this purpose and, distinctive aboriginal societies and Crown sovereignty was in principle, can justify the infringement of aboriginal to be achieved by “their bridging of aboriginal and title. non-aboriginal cultures” (at para. 42). Accordingly, he said, “a court must take into account the perspective of the In the separate decision of Justices La Forest and aboriginal people claiming the right. . . . while at the same L’Heureux-Dubé in Delgammukw, Justice La Forest time taking into account the perspective of the common wrote, law” such that “[t]rue reconciliation will, equally, place On a final note, I wish to emphasize that the best weight on each” (at paras. 49 and 50). approach in these types of cases is a process of Chief Justice Lamer’s closing remarks also referred to negotiation and reconciliation that properly considers reconciliation. The concluding sentence is quoted more the complex and competing interests at stake. This than the admonition to the Crown which preceded it: point was made by Lambert J.A. in the Court of Appeal:17 As was said in Sparrow, at p. 1105, s. 35(1) “provides a solid constitutional base upon which subsequent So, in the end, the legal rights of the Indian people will negotiations can take place”. Those negotiations have to be accommodated within our total society by should also include other aboriginal nations which have political compromises and accommodations based in a stake in the territory claimed. the first instance on negotiation and agreement and ultimately in accordance with the sovereign will of the Moreover, the Crown is under a moral, if not a legal, community as a whole. duty to enter into and conduct those negotiations in good faith. Ultimately, it is through negotiated The legal rights of the Gitksan and Wet’suwet’en settlements, with good faith and give and take on all peoples, to which this law suit is confined, and which sides, reinforced by the judgments of this Court, that allow no room for any approach other than the we will achieve what I stated in Van der Peet, supra, at application of the law itself, and the legal rights of all para. 31, to be a basic purpose of s. 35(1) – “the aboriginal peoples throughout British Columbia, form reconciliation of the pre-existence of aboriginal only one factor in the ultimate determination of what societies with the sovereignty of the Crown”. Let us kind of community we are going to have in British face it, we are all here to stay. Columbia and throughout Canada in the years ahead. [Emphasis added.] Unfortunately, the majority reasons in Delgamuukw also expanded the list of justificable infringements of Mr. Justice La Forest also referred with approval to the aboriginal title: statements by the Royal Commission on Aboriginal Peoples18 respecting the relative merits of negotiated In the wake of Gladstone, the range of legislative recognition of Aboriginal rights and title over objectives that can justify the infringement of court-imposed solutions. In the passage referred to by Mr. aboriginal title is fairly broad. Most of those objectives can be traced to the reconciliation of the prior occupation of North America by aboriginal peoples 17 1993 CanLII 4516 (BC C.A.), [1993] 5 W .W .R. 97, at pp. with the assertion of Crown sovereignty, which entails 379-80 18 Report of the Royal Commission on Aboriginal Peoples, 16 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 “Restructuring the Relationship,” Part 2, at page 562. <e-notes> Reconciliation of Two Opposing Absolute Rights: First Nations “Sovereignty” vs. Crown “Sovereignty” -13- an informative <e-note> by <[email protected]> 5 February 2010 Edition Justice La Forest, the Royal Commission states Courts have read Aboriginal rights to lands and The courts can be only one part of a larger political resources as requiring a reconciliation that asks much process of negotiation and reconciliation. As noted in a more of Aboriginal peoples than it does of Canadians. recent report by a task force of the Canadian Bar Reconciliation should not be a front for assimilation. Association, "While the courts may be useful to decide Reconciliation should be embraced as an approach to some native issues or to bring pressure on the parties to Aboriginal-Canadian relations that also requires settle by some other means, it appears clear that Canada to accede in many areas. judicial adjudication will not provide all of the answers Yet both legislatures and courts have been pursuing a to the issues surrounding native claims". course that, by and large, asks change only of Negotiations are clearly preferable to court-imposed Aboriginal peoples. Canadian institutions have been solutions. Litigation is expensive and time-consuming. employing domesticating doctrines in their response to Negotiation permits parties to address each other's real the [Royal Commission on Aboriginal Peoples]. This needs and make complex and mutually agreeable approach hinders Aboriginal choice in the development trade-offs. A negotiated agreement is more likely to of their lands and resources, rather than enhancing it. achieve legitimacy than a court-ordered solution, if <<<<>>>> only because the parties participate more directly and constructively in its creation. Gitxsan and Other First Nations v. British Columbia (Minister of Forests)21 in 2002 offered a useful discussion Negotiation also mirrors the nation-to-nation of the development of the law of duty of consultation as it relationship that underpins the law of Aboriginal title applied to the question of reconciliation. and structures relations between Aboriginal nations and the Crown. In summary that duty arises from the fiduciary duty of the Crown to recognize, affirm and protect aboriginal <<<<>>>> rights however they arise. Crown title is burdened by In R. v. Marshall19 in 1999, “reconciliation” moved its aboriginal title and rights ) and thus there my be two focus from reconciling competing interests in the present conflicting rights whenever the Crown seeks to grant to the question of reconciling the intentions of parties to rights to parties over land claimed as subject to Treaty at the time treaty was entered into, first proposed in aboriginal rights. The duty to consult and Sioui. Mr. Justice Binnie spoke of the need to seek an accommodate then arises from those potentially interpretation of common intention of the parties which conflicting rights and becomes the means of "best reconciles the interests of both parties at the time the reconciling those rights. treaty was signed." Whether aboriginal title and rights are potentially <<<<>>>> infringed must be assessed in light of the potential of a Crown granted right in question being inconsistent with In 2001, Chief Justice McLachlin returned to the theme of the exercise of aboriginal rights including title if such “reconciliation” in Mitchell, when she wrote of "the rights should be proven to exist in the area in question. promise of reconciliation embodied in s. 35(1).” However, that theme was not elaborated further, and the decision did <<<<>>>> not sustain the First Nation position. Nonetheless, the Another view of reconciliation – one that seems to be phrase is an attractive one and has been repeated in other worth repeating – was expressed in 2002 by Mr. Justice jurisprudence, still without elaboration. J.E. Scanlan in the Nova Scotia Supreme Court in R. v. However, criticism was starting to emerge on how the Marshall (S.F.).22 The comment related to the slow courts were defining “reconciliation”. John Borrows in progress of reconciliation: “Domesticating Doctrines: Aboriginal Peoples after the Royal Commission”20 wrote: 21 2002 BCSC 1701 (CanLII), (2002), 10 B.C.L.R. (4th) 126, 19 1999 CanLII 665 (S.C.C.), [1999] 3 S.C.R. 456 2002, BCSC 1701. 20 22 (2001) 46 McGill L.J. 615 (QL) at para. 64. 2002 NSSC 57 (CanLII) <e-notes> Reconciliation of Two Opposing Absolute Rights: First Nations “Sovereignty” vs. Crown “Sovereignty” -14- an informative <e-note> by <[email protected]> 5 February 2010 Edition I would make one final observation which is clearly in and reconciliation that properly considers the complex the nature of obiter. During the course of arguing this and competing interests at stake”. All of these appeal Crown counsel indicated the Mi'kmaq of Nova non-prosecutorial approaches likely would have Scotia may have valid claims in parts of this province involved the Indian Brook Mi’kmaq community and other than at the cutting sites. The Courts, in earlier perhaps the entire Mi’kmaq community in Nova Scotia decisions have referred to the fact that many of the rather than placing the onus of establishing the treaty issues still outstanding between Aboriginal right upon the Applicants. communities and governments are best resolved “The State has the right to use its discretion and pursue through a process of negotiations as opposed to whichever approach it wishes. However, if the State litigation. chooses to pursue the prosecutorial approach, it ought Litigation, whether criminal or civil, is slow and not have the unfair advantage of prosecuting extremely expensive. This adversarial approach does Applicants who lack the financial resources to retain nothing to further the process of reconciliation. legal counsel and lack the ability to advance a treaty-based defence without the benefit of legal Surely after waiting 240 years it is time to move on and counsel.” resolve the outstanding issues in a comprehensive way. The process of reconciliation must begin if native and <<<<>>>> non-native communities in this province are to move Where Has All This Brought Us To? forward and prosper together. There are limitations in what can be done after 240 years but it is best to Madam Justice Satanove of the B.C. Supreme Court in address the issues before another century goes by. Lax Kw'alaams Indian Band v. Canada (Attorney General),24 made a useful summary of the “general legal It may be in the interest of all involved if the principles” set out by the Supreme Court of Canada to outstanding issues can be resolved by identifying provide a framework within which to decide “the complex bundles of possible rights or entitlements and resolving and sometimes esoteric issues that arise in aboriginal the grievances through a comprehensive settlement. If cases.” Included in the list is the following evidence that the issues are not addressed in a global way then a must be provided to the court to establish “an aboriginal piecemeal approach will continue. . . A lasting right”. resolution to these matters will only be achieved through negotiation. A lasting resolution will provide 1. Evidence that there is continuity the right claimed as an opportunity for reconciliation. it is practiced today with pre-contact practices, customs and traditions. This means: Another Nova Scotia judge who became impatient with the Crown’s efforts toward reconciliation was Provincial 2. evidence that the right has not been extinguished; Court Associate Chief Judge R. Brian Gibson in R. v. Paul.23 3. evidence which considers the right in the context of a pre-contact distinctive culture as well as in the light “The evidence and record reveal that the Applicants are of present-day circumstances; members if the Indian Brook Mi’kmaq community and have, from the outset of these charges, asserted that 4. evidence that the right was being practiced before they have a treaty right to fish for snow crab. The the arrival of Europeans; Crown had the option to test or deal with that treaty 5. evidence that the pre-contact activity was an integral issue in a number of ways, aside from pursuing a part of the aboriginal community’s culture prior to prosecution of the Applicants on both of these charges. contact with the Europeans, that it continued after the Other approaches could have been either a reference or arrival of the Europeans. Where the practice, custom or a declaratory action as stated in Marshall II at tradition arose solely as a response of European paragraph 13. Another approach, and perhaps the best influences then it will not meet the standard for approach, as stated in Marshall II at paragraph 22, recognition of an aboriginal right; would have been to pursue a “process of negotiation 23 24 2002 NSPC 25 (CanLII). 2008 BCSC 447 (CanLII) <e-notes> Reconciliation of Two Opposing Absolute Rights: First Nations “Sovereignty” vs. Crown “Sovereignty” -15- an informative <e-note> by <[email protected]> 5 February 2010 Edition 6. this means evidence that the right claimed is central in 2004 stood for the principles that a claim did not have and a significant part of a society’s distinctive culture, to be proven before consultation was required, and that one of the things that made this society truly what it while Aboriginal claims can be and are pursued through was. litigation, “negotiation is a preferable way of reconciling state and Aboriginal interests.” Then, building on 7. evidence identifying the nature of the right being Delgamuukw which built on Van der Peet, she added: claimed, including the nature of the action done pursuant to the right; “The historical roots of the principle of the honour of the Crown suggest that it must be understood 8. evidence of the practice, custom or tradition being generously in order to reflect the underlying realities relied upon to establish the right; from which it stems. In all its dealings with Aboriginal 9. evidence that the right is claimed in context and is peoples, from the assertion of sovereignty or the not distorted, i.e., that it is not artifically broadened nor resolution of claims and the implementation of treaties, narrowed; the Crown must act honourably. Nothing less is required if we are to achieve “the reconciliation of the 10. evidence that the legislation imposes unreasonable pre-existence of aboriginal societies with the limits or undue hardship or denies the preferred means sovereignty of the Crown”. of exercising the rights; It was at this point that Chief Justice McLachlin revisted 11. evidence or argument that the government’s use of her faith in reconciliation through negotiated settlements. the legislation is not compelling or substantial; In doing so, she wrote the words that had been buried 12. evidence for the particular First Nation community away since 1763: since general evidence is not acceptable and each case Treaties serve to reconcile pre-existing Aboriginal must be decided on a case-by-case basis. sovereignty with assumed Crown sovereignty, and to 13. The right right must be expressed in terms define Aboriginal rights guaranteed by s. 35 of the cognizable to the Canadian legal and constitutional Constitution Act, 1982. structure. Section 35 represents a promise of rights recognition, If the court agrees these tests have been met, the claimant and “[i]t is always assumed that the Crown intends to may have established there is a right which can now move fulfil its promises” (Badger, supra, at para. 41). on to reconciliation. This promise is realized and sovereignty claims <<<<>>>> reconciled through the process of honourable negotiation. A Distinct Shift Begins To Take Place in the Evolution of Reconciliation It is a corollary of s. 35 that the Crown act honourably in defining the rights it guarantees and in reconciling In British Columbia (Minister of Forests) v. Okanagan them with other rights and interests. Indian Band25 in 2003, the Court made a costs order which, it said, would “ensure that the parties will be This, in turn, implies a duty to consult and, if encouraged to resolve the matter through negotiation, appropriate, accommodate. which remains the ultimate route to achieving There we have it, finally. “Aboriginal sovereignty” is reconciliation between aboriginal societies and the “pre-existing”. “Crown sovereignty” is “assumed”. Crown.” The basis for bilateralism and symmetry has been <<<<>>>> established. The Supreme Court of Canada’s unanimous judgment in With some occasional reversion in semantics used, Haida Nation v. British Columbia (Minister of Forests)26 Madam Chief Justice McLachlin elaborates on her statement and her faith in negotiated settlements: 25 The jurisprudence of this Court supports the view that [2003] 3 S.C.R. 371, 2003 SCC 71 the duty to consult and accommodate is part of a 26 process of fair dealing and reconciliation that begins 2004 SCC 73, [2004] 3 S.C.R. 511 <e-notes> Reconciliation of Two Opposing Absolute Rights: First Nations “Sovereignty” vs. Crown “Sovereignty” -16- an informative <e-note> by <[email protected]> 5 February 2010 Edition with the assertion of sovereignty and continues beyond The controlling question in all situations is what is formal claims resolution. required to maintain the honour of the Crown and to Reconciliation is not a final legal remedy in the usual effect reconciliation between the Crown and the sense. Rather, it is a process flowing from rights Aboriginal peoples with respect to the interests at guaranteed by s. 35(1) of the Constitution Act, 1982. stake. . . This process of reconciliation flows from the Crown’s duty of honourable dealing toward Aboriginal peoples, Treaties serve to reconcile pre-existing which arises in turn from the Crown’s assertion of Aboriginal sovereignty with assumed sovereignty over an Aboriginal people and de facto Crown sovereignty, and to define control of land and resources that were formerly in the Aboriginal rights guaranteed by s. 35 of the control of that people. . .” Constitution Act, 1982. Referring to some of the Court’s previous views on the role of reconciliation, she states: Section 35 represents a promise of rights To limit reconciliation to the post-proof sphere risks recognition, and “[i]t is always assumed that treating reconciliation as a distant legalistic goal, the Crown intends to fulfil its promises”. . . devoid of the “meaningful content” mandated by the “solemn commitment” made by the Crown in This promise is realized and sovereignty recognizing and affirming Aboriginal rights and title: claims reconciled through the process of Sparrow. . . It also risks unfortunate consequences. honourable negotiation. When the distant goal of proof is finally reached, the Aboriginal peoples may find their land and resources It is a corollary of s. 35 that the Crown act changed and denuded. This is not reconciliation. Nor is it honourable. honourably in defining the rights it ... guarantees and in reconciling them with But, when precisely does a duty to consult arise? other rights and interests. The foundation of the duty in the Crown’s honour and the goal of reconciliation suggest that the duty This, in turn, implies a duty to consult and, arises when the Crown has knowledge, real or if appropriate, accommodate. constructive, of the potential existence of the Aboriginal right or title and contemplates conduct – Chief Justice Beverly McLachlin that might adversely affect it. . . re Haida Nation ... I conclude that consultation and accommodation before final claims resolution, while challenging, is not impossible, and indeed is an essential corollary to the This flows from the meaning of “accommodate”. The honourable process of reconciliation that s. 35 terms “accommodate” and “accommodation” have been demands. defined as to “adapt, harmonize, reconcile” . . . “an It preserves the Aboriginal interest pending claims adjustment or adaptation to suit a special or different resolution and fosters a relationship between the parties purpose . . . a convenient arrangement; a settlement or that makes possible negotiations, the preferred process compromise”28 . . . The accommodation that may result for achieving ultimate reconciliation: see Sonia from pre-proof consultation is just this — seeking Lawrence and Patrick Macklem, “From Consultation to compromise in an attempt to harmonize conflicting Reconciliation: Aboriginal Rights and the Crown’s interests and move further down the path of Duty to Consult”.27 reconciliation. ... 28 Concise Oxford Dictionary of Current English (9th ed. 1995), 27 (2000), 79 Can. Bar Rev. 252, at p. 262. at p. 9. <e-notes> Reconciliation of Two Opposing Absolute Rights: First Nations “Sovereignty” vs. Crown “Sovereignty” -17- an informative <e-note> by <[email protected]> 5 February 2010 Edition A commitment to the process does not require a duty to reasonable and necessary, make the required agree. But it does require good faith efforts to accommodation. As such, the Crown must consult where understand each other’s concerns and move to address its honor is engaged and its honor does not require a them. specific Aboriginal interest to trigger a fiduciary ... relationship for it to be so engaged. Balance and compromise are inherent in the notion of Another way of formulating this difference is that a reconciliation. . . . specific infringement of an Aboriginal right is no longer Haida has also come to stand for another proposition: that necessary for the Government’s duty to consult to be the honour of the Crown can trigger the duty to consult for engaged. purpose of reconciliation in cases where fiduciary duty is The major difference between the fiduciary duty and the insufficient to be the same trigger. honor of the Crown is that the latter can be triggered even As Justice Vickers put it in Tsilqhot’in, Chief Justice where the Aboriginal interest is insufficiently specific to McLachlin’s concerns set out in Haida “echo her dissent require that the Crown act in the Aboriginal group’s best in Van der Peet, where she disagreed that the goal of interest (that is, as a fiduciary). In sum, where an reconciliation permits the Crown to require a judicially Aboriginal group has no fiduciary protection, the honor of authorized transfer of an Aboriginal right to non- the Crown fills in to insure the Crown fulfills the section Aboriginal people without the consent of Aboriginal 35 goal of reconciliation of “the pre-existence of people, without treaty and without compensation.” aboriginal societies with the sovereignty of the Crown.”30 Justice Vickers saw the McLachlin judgment in Haida as <<<<>>>> “returning the focus to a theory of reconciliation which In Taku River Tlingit First Nation v. British Columbia acknowledges the historical injustices suffered by (Project Assessment Director), 2004,31 Chief Justice Aboriginal peoples and places limits on the ability of the McLachlin added “accommodation” into the Crown to alter the content of the right claimed in the pre reconciliation formula, again in the context of “competing proof stage. It is logical to conclude that, in the post-proof societal concerns”: stage, the Crown’s ability to alter or infringe upon an Aboriginal right would be faced with severe restrictions.” “. . . accommodation requires that Aboriginal concerns be balanced reasonably with the potential impact of the <<<<>>>> particular decision on those concerns and with In Wewaykum Indian Band v. Canada,29 Justice Binnie of competing societal concerns. Compromise is inherent the SCC noted that the fiduciary duty does not exist in to the reconciliation process.” every case but rather is limited to situations where a The Chief Justice also spoke for the Court in building specific First Nation’s interest arises. As Justice Binnie “honour of the Crown” into the equation: explained at paragraph 81 of that judgment, “The fiduciary duty imposed on the Crown does not exist at “In all its dealings with Aboriginal peoples, the Crown large but in relation to specific Indian interests.” must act honourably, in accordance with its historical and future relationship with the Aboriginal peoples in Thus since 2002, the decision in Wewaykum meant that in question. The Crown’s honour cannot be interpreted order for the purpose of reconciliation which underpins s. narrowly or technically, but must be given full effect in 35 of the Constitution Act, 1982 to have meaning, there order to promote the process of reconciliation must be a broader duty on the Crown with respect to mandated by s. 35(1). Aboriginal relations than that imposed by a fiduciary relationship. “The obligation to consult does not arise only upon proof of an Aboriginal claim, in order to justify Hence, in Haida Nation, the Court first identified the honor of the Crown as the source of the Crown’s duty to consult in good faith with First Nations, and where 30 This is the argument set out by Mr. Justice Phelan of the Federal Court in Dene Tha' First Nation v. Canada (Minister of Environment), 2006 FC 1354 (CanLII) 29 2002 SCC 79 (CanLII), [2002] 4 S.C.R. 245, 220 D.L.R. (4th) 31 1, 2002 SCC 79 2004 SCC 74, [2004] 3 S.C.R. 550 <e-notes> Reconciliation of Two Opposing Absolute Rights: First Nations “Sovereignty” vs. Crown “Sovereignty” -18- an informative <e-note> by <[email protected]> 5 February 2010 Edition infringement. That understanding of consultation As well, if we are to move ahead on the strength of Justice would deny the significance of the historical roots of Binnie’s statement, we have to deal with a fact pointed out the honour of the Crown, and deprive it of its role in by Justice Vickers in Tsilqhot’in: the reconciliation process. Although determining the required extent of consultation and accommodation Courts are not accustomed to taking into account before a final settlement is challenging, it is essential to “claims, interests and ambitions” in the process of the process mandated by s. 35(1). reconciliation. In the course of a trial, a court will examine an entire body of evidence in an attempt to “As discussed in Haida, the process of consultation establish the factual truth in an objective manner. In an may lead to a duty to accommodate Aboriginal adversarial system, claims are dealt with to produce a concerns by adapting decisions or policies in response. win/lose result. Interest negotiations, designed to take The purpose of s. 35(1) of the Constitution Act, 1982 is opposing interests into account, have the potential to to facilitate the ultimate reconciliation of prior achieve a win/win result. Aboriginal occupation with de facto Crown sovereignty. Such an approach, in the context of consensual treaty negotiation, would provide the forum for a fair and just Pending settlement, the Crown is bound by its honour reconciliation. to balance societal and Aboriginal interests in making decisions that may affect Aboriginal claims. The Mr. Justice Binnie was critical of the government’s Crown may be required to make decisions in the face approach to the rights of the Mikisew. of disagreement as to the adequacy of its response to Aboriginal concerns. Balance and compromise will There is in the Minister’s argument a strong advocacy then be necessary.” of unilateral Crown action (a sort of “this is surrendered land and we can do with it what we like” <<<<>>>> approach) which not only ignores the mutual promises of the treaty, both written and oral, but also is the In 2005, the Supreme Court of Canada set down its antithesis of reconciliation and mutual respect. decision in Mikisew Cree.32 Justice Ian Binnie started off in paragraph 1 with a clear statement: The overarching objective, he said, should be “reconciliation, not confrontation”. The fundamental objective of the modern law of aboriginal and treaty rights is the reconciliation of “Consultation that excludes from the outset any form of aboriginal peoples and non-aboriginal peoples and their accommodation would be meaningless. The respective claims, interests and ambitions. The contemplated process is not simply one of giving the management of these relationships takes place in the Mikisew an opportunity to blow off steam before the shadow of a long history of grievances and Minister proceeds to do what she intended to do all misunderstanding. along. The multitude of smaller grievances created by the “Treaty making is an important stage in the long indifference of some government officials to aboriginal process of reconciliation, but it is only a stage. What people’s concerns, and the lack of respect inherent in occurred at Fort Chipewyan in 1899 was not the that indifference has been as destructive of the process complete discharge of the duty arising from the honour of reconciliation as some of the larger and more of the Crown, but a rededication of it.” explosive controversies. And so it is in this case. In another context, Mr. Justice Binnie wrote that With these strong and unequivocal words, helpful as they “consultation is key to achievement of the overall are in many respects, Justice Binnie opened up a new objective of the modern law of treaty and aboriginal definition of reconciliation: not reconciliation of interests, rights, namely reconciliation. not reconciliation of sovereignties, but rather Mikisew is useful in still another context. The federal reconciliation of “peoples”. government has argued that Haida is applicable only where Treaties have not been signed. Where Treaties have 32 been signed, there is nothing left to discuss. True, Haida Mikisew Cree First Nation v. Canada (Minister of Canadian speaks in para. 20 begins by quoting Sparrow: Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388 <e-notes> Reconciliation of Two Opposing Absolute Rights: First Nations “Sovereignty” vs. Crown “Sovereignty” -19- an informative <e-note> by <[email protected]> 5 February 2010 Edition decision making process and the creation of an “Where treaties remain to be concluded, the honour of Alternative Energy Action Plan for their traditional the Crown requires negotiations leading to a just territories. The Protocol states, “ settlement of Aboriginal claims.” The Province acknowledges that the Nations and However, any notion this implies finality was shattered by First Nations have aboriginal title, rights and Mr. Justice Binnie who said in Mikisew that the signing of Treaty 8 was not the end of reconciliation, but “the interests within their traditional territories and beginning”. this Reconciliation Protocol is a bridging step to a future reconciliation of those aboriginal title, <<<<>>>> rights, and interests with provincial title, rights, A linguistic note: in McDiarmid Lumber Ltd. v. God's and interests. Lake First Nation33 , the Manitoba Court of Appeal in Haida Reconciliation Protocol - Kunst'aa Guu – 2005 noted that Justice Marceau of the Federal Court of Kunst'aayah35 establishes a unique shared decision- Appeal had noted with favour the use of the word making process at the strategic level for resource use, “accord” (as it was used in the French text of an Act provides a share of resource revenues including carbon rather than the word “agreement”. “Accord,” he noted, offsets and a community forest tenure and the “has a clear connotation of the idea of a reconciliation, of opportunity to purchase additional forest tenures. a pact arrived at by the giving and taking by both parties, of a mutual understanding worked out through In addition, the provincial government and First Nations concessions and compromise, and is therefore a word have been developing a range of mechanisms such as joint closely related to treaty. . .” land-use agreements, revenue sharing, and economic benefits. <<<<>>>> <<<<>>>> In 2005 the Government of British Columbia and the B.C. First Nations Leadership Council entered into a “New In Platinex36 in 2006, the Court found that the duty to Relationship” based on “respect, recognition and consult carried within it a “duty to negotiate”. accommodation of Aboriginal title and rights; respect for The duty to consult, however, goes beyond giving each others’ laws and responsibilities, and for the notice and gathering and sharing information. To be reconciliation of Aboriginal and Crown titles and meaningful, the Crown must make good faith efforts to jurisdictions.” A new Ministry was established, “Minister negotiate an agreement. The duty to negotiate does not of Aboriginal Relations and Reconciliation”. mean a duty to agree, but rather requires the Crown to As a result of the New Relationship, several agreements possess a bona fide commitment to the principle of were entered into to “create the opportunity for reconciliation over litigation. The duty to negotiate comprehensive and lasting reconciliation: does not give First Nations a veto; they must also make bona fide efforts to find a resolution to the issues at Musqueam Reconciliation, Settlement and Benefits hand. Agreement – settled three court cases with the ... Musqueam Indian Band through a negotiated Litigation of cases where Aboriginal issues are agreement that transfers ownership of a parcel of land involved, whether by means of judicial review or by and provides cash for future economic activities. way of injunctive relief, does not and will not promote Coastal First Nations Reconciliation Protocol34 to reconciliation. build a new ferry terminal at Klemtu, as well as sharing a portion of resource revenue and carbon offsets. The Coastal First Nations will also be part of a new shared 35 33 http://www.newrelationship.gov.bc.ca/shared/downloads/haida_r 2005 MBCA 22 (CanLII) econciliation_protocol.pdf 34 36 http://www.newrelationship.gov.bc.ca/shared/downloads/cfn_bc Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation, _reconciliation_framework.pdf 2006 CanLII 26171 (ON S.C.) <e-notes> Reconciliation of Two Opposing Absolute Rights: First Nations “Sovereignty” vs. Crown “Sovereignty” -20- an informative <e-note> by <[email protected]> 5 February 2010 Edition Reconciliation will only be achieved by communica- <<<<>>>> tion and honest and open dialogue. The parties initial- In 2006, in a strongly-worded dissenting decision in ly engaged in consultation with each other, but it did McDiarmid Lumber Ltd. v. God's Lake First Nation38 , not continue. It must begin again. The parties must writing for himself and Justices Fish and Abella, Mr. continue to seek their own resolution of their issues Justice Binnie gave “reconciliation” an additional and concerns. objective – remediation of dispossession: <<<<>>>> The history of Indian peoples in North America has Mr. Justice Michael Phelan in Dene Tha' First Nation v. generally been one of dispossession, including Canada (Minister of Environment)37 in 2006 advanced the dispossession of their pre-European sovereignty, of proposition that the honour of the Crown can be triggered their traditional lands, and of distinctive elements of in cases where the fiduciary duty trigger cannot be their cultures. Of course, arrival of new settlers also utilized. brought considerable benefits. The world has changed and with it the culture and expectations of aboriginal The major difference between the fiduciary duty and peoples have changed, as they have for the rest of us. the honor of the Crown is that the latter can be triggered even where the Aboriginal interest is Yet it has been recognized since before the Royal insufficiently specific to require that the Crown act in Proclamation of 1763 . . . that at some point the the Aboriginal group’s best interest (that is, as a process of dispossession has to stop. Accordingly, fiduciary). In sum, where an Aboriginal group has no even in periods when federal government policies fiduciary protection, the honor of the Crown fills in to favoured assimilation, which is to say for most of the insure the Crown fulfills the section 35 goal of first century of Canada’s existence, Parliament’s reconciliation of “the pre-existence of aboriginal legislative policy was to protect reserves and their societies with the sovereignty of the Crown.” contents as a sanctuary for those Indians who wished to stay in their own communities and adhere to their own In assessing whether the Crown has fulfilled its duty of cultures. The promise in Treaty No. 5 of agricultural consultation, the goal of consultation – which is supplies is a 19th and 20th Century recognition of the reconciliation – must be firmly kept in mind. The goal need to ameliorate the effects of dispossession. of consultation is not to be narrowly interpreted as the mitigation of adverse effects on Aboriginal rights In my view, whatever legislative measures flow out of and/or title. Rather, it is to receive a broad interpreta- Parliament’s recognition of the impact of that tion in light of the context of Aboriginal-Crown dispossession, and the desire for reconciliation of relationships: the facilitation of reconciliation of the aboriginal and non-aboriginal peoples arising from that pre-existence of Aboriginal peoples with the present situation, should apply as much to bands dispossessed and future sovereignty of the Crown. without a treaty as to those with whom treaties were made. [emphasis added] The goal of consultation does not also indicate any specific result in any particular case. It does not mean <<<<>>>> that the Crown must accept any particular position put In his 2007 Tsilhqot’in decision,39 the late Mr. Justice forward by a First Nations people. D.H. Vickers set out a partial listing of the challenges and ... tragedies which had been faced by the Tsilhqot’in Nation Consultation is not consultation absent the intent to over recent history. He added that dimension to the task of consult. Consultation cannot be meaningful if it is reconciliation: inadvertent or de facto. Consultation must represent the good faith effort of the Crown (reciprocated by the The present Canadian community is now faced with the First Nation) to attempt to reconcile its sovereignty challenge of acknowledging past wrongs and of with pre-existing claims of rights or title by the First Nation. 38 2006 SCC 58, [2006] 2 S.C.R. 846, 39 Tsilhqot'in Nation v. British Columbia, 2007 BCSC 1700 37 2006 FC 1354 (CanLII) (CanLII) <e-notes> Reconciliation of Two Opposing Absolute Rights: First Nations “Sovereignty” vs. Crown “Sovereignty” -21- an informative <e-note> by <[email protected]> 5 February 2010 Edition building a consensual and lasting reconciliation with Lloyd Barber, speaking as Commissioner of the Indian Aboriginal people. Trials in a courtroom have the Claims Commission, is quoted on this issue:40 inevitable downside of producing winners and losers. My hope is that this judgment will shine new light on It is clear that most Indian claims are not simple the path of reconciliation that lies ahead. issues of contractual dispute to be resolved through conventional methods of arbitration and Thus in writing his judgment, he said, “Because the Court adjudication. They are the most visible part of the is engaged in the broader process of reconciliation, I have much, much more complex question of the departed from the usual practice and expressed my views relationship between the original inhabitants of this on some issues that might not have been addressed but for land and the powerful cultures which moved in the nature of these proceedings. upon them. “Important work lies ahead for the provincial and Courts are obliged to address this complex question in federal governments and Tsilhqot’in people. In that the context of their constitutional obligations. David regard, there will have to be compromises on all sides Stack describes the nature of this obligation in “The if a just and lasting reconciliation is to be achieved. Impact of the RCAP on the Judiciary: Bringing Justice Vickers wrote an entire chapter of his Reasons for Aboriginal Perspectives into the Courtroom”:41 Decision on “Reconciliation”. In it, he canvassed the The courts’ opportunity to advance the larger jurisprudence, and spoke frankly of his own hopes for the vision of justice [recognition of Aboriginal rights future. and self-government] comes from their Throughout the course of the trial and over the long constitutional obligation to interpret and enforce months of preparing this judgment, my consistent hope the Constitution, specifically s. 35(1). . . has been that, whatever the outcome, it would These words leave the courts with a wide ultimately lead to an early and honourable discretion to protect, define, and recognize the reconciliation with Tsilhqot’in people. After a trial of rights of Aboriginals. In many cases, this gives this scope and duration, it would be tragic if courts the unenviable task of determining the kind reconciliation with Tsilhqot’in people were postponed of relationships that rights-bearing Aboriginals are through seemingly endless appeals. The time to reach to have with the larger non-Aboriginal society. an honourable resolution and reconciliation is with us today. In tracing the jurisprudence, Justice Vickers then places his finger directly on the problem which has been Black’s Law Dictionary, 8th ed., defines reconciliation identified earlier in this essay: as: “Restoration of harmony between persons or things that had been in conflict”. The relationship between The Court is clearly concerned with developing a Aboriginal and non-Aboriginal Canadians has a theory of reconciliation that accords with Canada’s troubled history. Fuelled by the promise of s. 35(1), identity as a constitutional democracy. However, the the early part of this century has brought significant majority’s link between its theory of reconciliation and changes in government policies at both the provincial the justification of infringements test described in Van and federal levels. der Peet and Gladstone would appear to effectively place Aboriginal rights under a Charter s. 1 analysis. Thus, there is a kindling of hope and expectation that a just and honourable reconciliation with First Nations As McLachlin J. points out, this is contrary to the people will be achieved by this generation of constitutional document, and arguably contrary to the Canadians. objectives behind s. 35(1). Unfortunately, the initial reluctance of governments to acknowledge the full impact of s. 35(1) has placed the 40 question of reconciliation in the courtroom – one of our Report of the Royal Commission on Aboriginal Peoples: Looking Forward, Looking Back, vol. 1 (Ottawa: Supply and most adversarial settings. Courts struggle with the Services Canada, 1996) at p. 203, quoting A Report: Statements meaning of reconciliation when Aboriginal and and Submissions (Ottawa: Queen’s Printer, 1977) at p. 2. non-Aboriginal litigants seek a determination regarding the existence and implications of Aboriginal rights. 41 (1999) 62 Sask. L. Rev. 471, at para. 44 (QL): <e-notes> Reconciliation of Two Opposing Absolute Rights: First Nations “Sovereignty” vs. Crown “Sovereignty” -22- an informative <e-note> by <[email protected]> 5 February 2010 Edition What role, in particular, should the judiciary be playing The result is that the interests of the broader in this matter? The way forward is clear enough, if Canadian community, as opposed to the unpalatable to the judiciary. A Section One-like constitutionally entrenched rights of Aboriginal approach to justifying legislative interference with peoples, are to be foremost in the consideration of Aboriginal rights should never have been the Court. In that type of analysis, reconciliation contemplated. The judiciary simply cannot justify this does not focus on the historical injustices suffered change to the law as it applies to Aboriginal peoples by Aboriginal peoples. It is reconciliation on terms and their rights. imposed by the needs of the colonizer. Appeals to the need for the application of the rule of Justice Vickers quoted Lisa Dufraimont, in “From law are empty, as are notions that the Court requires Regulation to Recolonization: Justifiable Infringement of such an approach to operate appropriately in a balanced Aboriginal Rights at the Supreme Court of Canada”:42 constitutional democracy. As unpleasant as the Like the broadening test for justification of resulting situation may be, Aboriginal rights, at this infringement it informs, the discussion of reconciliation point in the process of reconciliation, must be accorded in Gladstone and Delgamuukw suggests that Aboriginal the sort of legal protection they demand – that of ‘sure rights must give way when they conflict with public and unavoidable’ rights. goals and interests. This idea of reconciliation is These would be the sorts of rights which operate to simply not a plausible articulation of the purpose of s. protect essential Aboriginal interests – in living 35(1). Governments do not recognize and affirm according to the good ways, knowledge of which has minority rights for the benefit of the majority. been handed down from generation to generation. Rather, the purpose of s. 35(1), as suggested in The practical outcome of this should be clear – this Sparrow, is remedial. Aboriginal rights have been would bring the governments of Canada to the constitutionalized precisely in order to promote a just negotiating table, and would give Aboriginal peoples settlement for Aboriginal peoples by strengthening and the sort of strength they need to work out a fair legitimizing their claims against the Crown. accommodation, a resolution of the ills caused by Justice Vickers saw that “in an ideal world, centuries of colonialism. “the process of reconciliation would take place outside This is as it should be, for from the perspective of the the adversarial milieu of a courtroom. This case theory and principles underlying the superstructure of demonstrates how the Court, confined by the issues Canadian society and Canadian law there is no other raised in the pleadings and the jurisprudence on way to work out an appropriate place for Aboriginal Aboriginal rights and title, is ill-equipped to effect a peoples in contemporary society. reconciliation of competing interests. That must be For Canada to advance to maturity, for the social reserved for a treaty negotiation process. compact to welcome within all those currently living Despite this fact, the question remains: how can this within Canada’s geographic boundaries, Aboriginal Court participate in the process of reconciliation peoples must be able to bargain their way into a fair between Tsilhqot’in people, Canada and British constitutional contract. Columbia in these proceedings? This can only be accomplished with recognition on the Justice Vickers found remarks of Gordon Christie on this Canadian side of the table of the position occupied by issue in “Aboriginality and Normativity, Judicial Aboriginal peoples: they come to these negotiations in Justification of Recent Developments in Aboriginal the same state they were in 500 years ago, as organized Law”43 as being “particularly thought provoking and societies existing ‘prior’ to the assertion of Crown helpful”: sovereignty, societies organized according to separate and distinct conceptions of the good and of how to lead good lives. 42 (2000) 58 U.T. Fac. L. Rev. (QL) at para. 24: 43 (2002) 17 No. 2 C.J.L.S. 41 at pp. 69-70. <e-notes> Reconciliation of Two Opposing Absolute Rights: First Nations “Sovereignty” vs. Crown “Sovereignty” -23- an informative <e-note> by <[email protected]> 5 February 2010 Edition Justice Vickers recognized the problem he faced: Professor Slattery further argues that historical title “provides the point of departure for any modern inquiry The Aboriginal interests considered by the courts are and a benchmark for assessing the actions of colonial necessarily confined to the pleadings. The court must governments and the scope of Indigenous also take into account the interests and needs of the dispossession”: Slattery at pp. 281 282. broader society which are not confined to the pleadings. This is what the test of justification requires. In his view, a number of “Principles of Reconciliation Regrettably, the adversarial system restricts the govern the legal effect of aboriginal title in modern examination of Aboriginal interests that is needed to times.” He writes that these principles: achieve a fair and just reconciliation. … take as their starting point the historical title of In this context, Justice Vickers referred to an article by the Indigenous group, … but they also take into Professor Brian Slattery entitled “The Metamorphosis of account a range of other factors, such as the Aboriginal Title”.44 subsequent history of the lands in question, the Indigenous group’s contemporary interests, and the In this article, Professor Slattery argues for the interests of third parties and the larger society. So “Principles of Recognition and Reconciliation”. He doing, they posit that historical aboriginal title has notes at p. 283 that “reconciliation must strike a been transformed into a generative right, which can balance between the need to remedy past injustices and be partially implemented by the courts but whose the need to accommodate contemporary interests.” full implementation requires the recognition of I agree entirely with the views expressed by Professor modern treaties. Slattery at p. 286: He continues by suggesting that the actions of courts In other words, section 35 does not simply have the potential to diminish the possibility of recognize a static body of aboriginal rights, whose reconciliation ever occurring. He concludes at p. 282: contours may be ascertained by the application of … the successful settlement of aboriginal claims general legal criteria to historical circumstances — must involve the full and unstinting recognition of what we have called historical rights. the historical reality of aboriginal title, the true Rather, the section recognizes a body of generative scope and effects of Indigenous dispossession, and rights, which bind the Crown to take positive steps the continuing links between an Indigenous people to identify aboriginal rights in a contemporary and its traditional lands. So, for example, to form, with the participation and consent of the maintain that “nomadic” or “semi-nomadic” Indigenous peoples concerned. peoples had historical aboriginal title to only a fraction of the ancestral hunting territories, or to Professor Slattery points out at p. 281 that hold that aboriginal title could be extinguished reconciliation cannot be achieved by the current simply by Crown grant, is to rub salt into open process of translating an historical right into one that wounds. corresponds with a modern common law right. He writes, “such a process artificially constrains and However, by the same token, the recognition of distorts the true character of aboriginal title and risks historical title, while a necessary precondition for compounding the historical injustices visited on modern reconciliation, is not in itself a sufficient Indigenous peoples”. basis for reconciliation, which must take into account a range of other factors. So, for example, This case serves as an example of that conclusion. I to suggest that historical aboriginal title gives rise fear, as he foretold, that “[f]ar from reconciling to modern rights that automatically trump third Indigenous peoples with the Crown,” the conclusions I party and public interests constitutes an attempt to am driven to reach seem more “likely to exacerbate remedy one grave injustice by committing another. existing conflicts and grievances”: Slattery at p. 281. Courts should not be placed in this invidious position merely because governments at all levels, for successive generations, have failed in the discharge of their constitutional obligations. Inevitably this decision 44 (2006) 85 Can. Bar Rev. 255. <e-notes> Reconciliation of Two Opposing Absolute Rights: First Nations “Sovereignty” vs. Crown “Sovereignty” -24- an informative <e-note> by <[email protected]> 5 February 2010 Edition and others like it run the risk of rubbing salt into open This is, of course, not a task for a court. However, in wounds. the context of treaty negotiation, it strikes me as a The narrow role this court can play in defining convenient starting point. Recognition that Aboriginal Tsilhqot’in Aboriginal rights in the Claim Area lies in people have historical rights to their ancestral an application of the jurisprudence to the facts of this homelands regardless of whether they had developed case. I can only hope that it will assist the parties in conceptions of “ownership,” “property,” or finding a contemporary solution that will balance “exclusivity” quickly moves the debate to the real Tsilhqot’in interests and needs with the interests and question: what interests are at stake and how are they needs of the broader society. to be reconciled? The application of Professor Slattery’s “Principles of Professor Slattery further describes the “Principles of Recognition and Reconciliation” may assist in this Reconciliation”, as follows at pp. 284-285: process. At pp. 283-284, Professor Slattery suggests 1) They should acknowledge the historical rights that the “Principles of Recognition” should have of Indigenous peoples to their ancestral lands under certain basic characteristics: Principles of Recognition, as the essential starting 1) They should acknowledge the historical reality point for any modern settlement. that “when the settlers came, the Indians were 2) They should explain how historical aboriginal there, organized in societies and occupying the rights were transformed into generative rights with land as their forefathers had done for centuries,” as the passage of time, and explain the rise of third Judson J. observed in the Calder case. party and other societal interests. They should not draw arbitrary distinctions 3) They should draw a distinction in principle between “settled”, “nomadic”, and “semi-nomadic” between the “inner core” of generative aboriginal peoples but accept that all of the Indigenous rights that may be implemented without negotiation peoples in Canada had historical rights to their in modern times, and a “penumbra” or “outer ancestral homelands – the lands from which they layer” that needs to be articulated in treaties drew their material livelihood, social identity, and concluded between the Indigenous people and the spiritual nourishment – regardless whether they Crown. had developed conceptions of “ownership,” “property,” of “exclusivity,” and without forcing 4) They should provide guidelines governing the their practices into conceptual boxes derived from accommodation of rights and interests held by third English or French law. parties within the historical territories of Indigenous peoples. 2) They should take account of the long history of relations between Indigenous peoples and the 5) They should create strong incentives for British Crown, and the body of inter-societal law negotiated settlements to be reached within a that emerged from those relations. reasonable period of time. 3) They should draw inspiration from fundamental I confess that early in this trial, perhaps in a moment of principles of international law and justice, self pity, I looked out at the legions of counsel and principles that are truly universal, and not asked if someone would soon be standing up to admit grounded simply in rules that European imperial that Tsilhqot’in people had been in the Claim Area for powers formulated to suit their own convenience, over 200 years, leaving the real question to be such as the supposed “principle of discovery”. answered. My view at this early stage of the trial was that the real question concerned the consequences that 4) They should envisage the continuing operation would follow such an admission. I was assured that it of customary law within the Indigenous group was necessary to continue the course we were set upon. concerned. At the same time, they should explain the way in which the collective title of an My view has not been altered since I first raised the Indigenous group relates to the titles of other issue almost five years ago. Indigenous groups and to rights held under the general land system. <e-notes> Reconciliation of Two Opposing Absolute Rights: First Nations “Sovereignty” vs. Crown “Sovereignty” -25- an informative <e-note> by <[email protected]> 5 February 2010 Edition At the end of the trial, a concession concerning an policy of the federal government to litigate always, Aboriginal hunting and trapping right in the Claim consult only if ordered to do so. The case is Tzeachten Area was made by both defendants. As I have already First Nation v. Canada (Attorney General).45 noted, that concession brings with it an admission of Mr. Justice Lemieux wrote with regard to federal motions the presence of Tsilhqot’in people in the Claim Area to disallow a First Nation application for judicial review for over 200 years. This leaves the central question because the application was made more than 30 days after unanswered: what are the consequences of this the decision was made: centuries-old occupation in the short term and in the long term, for Tsilhqot’in and Xeni Gwet’in people? The Applicants have persuaded me that they have made out a reasonable explanation for delaying their I have come to see the Court’s role as one step in the application. When they became aware of the transfer of process of reconciliation. For that reason, I have taken the lands by DND to CLC, they sought consultation the opportunity to decide issues that did not need to be rather than litigation. They asked for consultation with decided. For example, I have been unable to make a CLC, Treasury Board, DND only to be sidetracked. declaration of Tsilhqot’in Aboriginal title. However, I have expressed an opinion that the parties are free to They then sought relief through a representative action use in the negotiations that must follow. filed in the B.C. Supreme Court but were denied access on jurisdictional grounds. Shortly after the B.C. Court What is clear to me is that the impoverished view of of Appeal rendered its decision, the Applicants Aboriginal title advanced by Canada and British instituted this proceeding in the Federal Court. Columbia, characterized by the plaintiff as a “postage stamp” approach to title, cannot be allowed to pervade . . . time and time again the Courts have stated that and inhibit genuine negotiations. A tract of land is not negotiated resolutions are superior to litigated just a hunting blind or a favourite fishing hole. outcomes in the process of reconciling Crown Individual sites such as hunting blinds and fishing sovereignty with prior aboriginal occupation. The holes are but a part of the land that has provided Applicants should not be penalized for seeking “cultural security and continuity” to Tsilhqot’in people consultations rather than litigation. for better than two centuries. <<<<>>>> A tract of land is intended to describe land over which Indigenous people roamed on a regular basis; land that In 2007, in Cook v. The Minister of Aboriginal Relations ultimately defined and sustained them as a people. The and Reconciliation,46 Madam Justice Garson wrote of the recognition of the long-standing presence of Province of British Columbia having a “constitutional Tsilhqot’in people in the Claim Area is a simple, imperative” to engage in reconciliation:, straightforward acknowledgment of an historical fact. “The power of the Crown to enter into treaties may be Given this basic recognition, how are the needs of a its natural person power to contract, but the basis for modern, rural, Indigenous people to be met? How can doing so is its constitutional imperative to take steps to their contemporary needs and interests be balanced “[reconcile] … the pre-existence of aboriginal societies with the needs and interests of the broader society? with the sovereignty of the Crown”: Haida at para. 17. That is the challenge that lies in the immediate future As MacLachlin C.J.C. wrote at para. 20 of Haida, for Tsilhqot’in people, Canada and British Columbia. “Where treaties remain to be concluded, the honour of the Crown requires negotiations leading to a just Justice Vickers concluded: settlement of aboriginal claims.” Reconciliation is a process. It is in the interests of all <<<<>>>> Canadians that we begin to engage in this process at the earliest possible date so that an honourable settlement with Tsilhqot’in people can be achieved. <<<<>>>> 45 Also in 2007, Mr. Justice Lemieux of the Federal Court 2007 FC 1131 (CanLII) added to the increasing judicial criticism of the apparent 46 2007 BCSC 1722 (CanLII) <e-notes> Reconciliation of Two Opposing Absolute Rights: First Nations “Sovereignty” vs. Crown “Sovereignty” -26- an informative <e-note> by <[email protected]> 5 February 2010 Edition In 2008, in R. v. Kapp,47 the Supreme Court of Canada No. 1 was a process of reconciliation between the interests invoked s. 25 of the Constitution Act, 1982 as part of the and ambitions of Aboriginal People and the Federal and reconciliation process. As Justice Bastarache put it, that Manitoba Crown.” section serves the purpose of protecting the rights of <<<<>>>> aboriginal peoples where the application of the Charter protections for individuals would diminish the distinctive, The Gitxaala Nation’s Argument collective and cultural identity of an aboriginal group. As to reconciliation, In Lax Kw’alaams Indian Band v. Canada (Attorney General),50 the Gitxaala Nation had status as an s. 25 reflects the notions of reconciliation and intervenor. Lax Ka’alaams appealed the trial decision to negotiation present in the treaty process and recognized the B.C. Court of Appeal. That court sustained the trial by the previous jurisprudence of this Court: Haida judge in January 2010 and rejected the Gitxaala Nation, Taku River. Section 25 is a necessary partner to argument. It is believed that notice of application for leave s. 35(1); it protects s. 35(1) purposes and enlarges the to appeal has been filed with the Supreme Court of reach of measures needed to fulfill the promise of Canada. reconciliation. The Gitxaalla argument, as stated by the B.C. Court of <<<<>>>> Appeal, is that the template for determining the existence of Aboriginal rights provided by the trilogy in 1996 has In 2009, in Brokenhead First Nations v. Canada,48 Mr. been substantially changed by a new “standard of life” Justice Douglas Campbell devoted a section of his approach that was first enunciated in dissent by Reasons for Decision to “Reconciliation”. Seeing McLachlin J. (as she then was) in the trilogy, first “took implementation of Treaty as a part of the process of root” in Marshall (1999) and was fully adopted by the reconsiliation, he cited with favour a publication by the Court in Mitchell v. M.N.R. Treaty Commissioner for Saskatchewan,49 noting that it was a helpful observation in understanding the importance [67] It will be recalled that in Marshall (1999), the of a non-litigious engagement between Aboriginal People Court was asked to construe the Mi’kmaq treaties of and government when making decisions which directly 1760-1 under which the Mi’kmaq had been promised affect Aboriginal Treaty rights: access to “necessaries” through trade in wildlife. (The Mi’kmaq did not assert any Aboriginal right outside the In law, as both the Haida and Mikisew cases treaties.) The Crown argued that the so-called emphasize, reconciliation is a “process,” and that “truckhouse” clause in the treaties was a time-limited process does not end with the making of a treaty. The response to a temporary problem that was now process carries on through the implementation of that essentially spent. (Para. 54.) treaty and is guided by a duty of honourable dealing. The very nature of the treaties is to establish mutual Binnie J. for the majority of the Court rejected that rights and obligations. proposition and equated the treaty right to “necessaries” to what Lambert J.A. had described in Fulfilling treaties is not a one-way street. Accordingly, Van der Peet as a “moderate livelihood”. (Para. 59.) the honour of Treaty First Nations is also at stake in the Binnie J. continued: treaty implementation process. As the Supreme Court of Canada has stated, “At all stages, good faith on both ... Bare subsistence has thankfully receded over the sides is required.” last couple of centuries as an appropriate standard of life for aboriginals and non-aboriginals alike. A Mr. Justice Campbell also said, “It is fair to say that the moderate livelihood includes such basics as “food, negotiation of Land Entitlement Agreements under Treaty clothing and housing, supplemented by a few amenities”, but not the accumulation of wealth 47 (Gladstone, supra, at para. 165). It addresses 2008 SCC 41, [2008] 2 S.C.R. 483 day-to-day needs. This was the common intention 48 2009 FC 982 (CanLII) 49 Treaty Implementation: Fulfilling the Covenant, Office of the 50 Treaty Commissioner, Saskatoon, 2007, pp. 127 – 128. 2009 BCCA 593 (CanLII) <e-notes> Reconciliation of Two Opposing Absolute Rights: First Nations “Sovereignty” vs. Crown “Sovereignty” -27- an informative <e-note> by <[email protected]> 5 February 2010 Edition in 1760. It is fair that it be given this interpretation trading practice,” replacing what he describes as a today. “murky scale of trade” basis. The distinction between a commercial right and a I would not normally have equated purpose with right to trade for necessaries or sustenance was ‘standard of life’, but more importantly, the majority in discussed in Gladstone, supra, where Lamer C.J., Marshall (1999) did not indicate, in my respectful speaking for the majority, held that the Heiltsuk of view, an intention of departing from the framework of British Columbia have “an aboriginal right to sell analysis established by the trilogy or of changing its herring spawn on kelp to an extent best described position with respect to the dissenting reasons of as commercial” (para. 28). This finding was based Lambert J.A. in Van der Peet. on the evidence that “tons” of the herring spawn on As we have seen, Marshall (1999) was a treaty case, kelp was traded and that such trade was a central and the treaty gave the claimants the promise of access and defining feature of Heiltsuk society. to “necessaries” through trade in wildlife. The Court McLachlin J., however, took a different view of was addressing a different issue than arose in the cases the evidence, which she concluded supported a discussed above, and in that context, the Court seems finding that the Heiltsuk derived only sustenance to have suggested the “social test” had a different from the trade of the herring spawn on kelp. significance. “Sustenance” provided a manageable limitation on ... what would otherwise be a free-standing [70] Again, I am unable to agree with Mr. Robbins that commercial right. She wrote at para. 165: Mitchell signals a sea change from the Court’s previous Despite the large quantities of herring spawn approach and its replacement by one that characterizes on kelp traditionally traded, the evidence does the extent of trading-based rights according to the not indicate that the trade of herring spawn on “standard of life” achieved by the practice or activity. kelp provided for the Heiltsuk anything more I see the categorization of trade, or any other activity in than basic sustenance. There is no evidence in question, according to whether it is aimed at feeding this case that the Heiltsuk accumulated wealth oneself or one’s people, aimed at obtaining items to be which would exceed a sustenance lifestyle used for ceremonial occasions, aimed at accumulating from the herring spawn on kelp fishery. private or communal wealth, or aimed at participation [Emphasis added.] in a large-scale market, as concerned with purpose, and In this case, equally, it is not suggested that as consistent with a principled approach to Aboriginal Mi'kmaq trade historically generated “wealth culture. which would exceed a sustenance lifestyle”. Nor The Supreme Court of Canada may have the opportunity would anything more have been contemplated by to deal with this issue. the parties in 1760. <<<<>>>> Catch limits that could reasonably be expected to produce a moderate livelihood for individual So Where Does That Leave Us? Mi'kmaq families at present-day standards can be The deep solution is to convince federal and provincial established by regulation and enforced without governments to put all conflicts (including those now violating the treaty right. In that case, the before the courts) into negotiation, and turn to litigation regulations would accommodate the treaty right. only when negotiations are irremediably unsuccessful. Such regulations would not constitute an infringement that would have to be justified under Success in this proposition is likely to require politicians the Badger standard. [At paras. 59-61.] to feel empowered enough that they will instruct government legal counsel to take this approach, and insist [68] Mr. Robbins on behalf of the Gitxaala Nation that the policy be followed. It is less probable that success submits that this reasoning departs substantially from can be expected by government lawyers convincing the trilogy and “signals a refined approach to politicians that the lawyers should be engaged at characterizing the extent of trading-based rights by way negotiating tables rather than in courts. of the purpose (ie., standard of life) served by the <e-notes> Reconciliation of Two Opposing Absolute Rights: First Nations “Sovereignty” vs. Crown “Sovereignty” -28- an informative <e-note> by <[email protected]> 5 February 2010 Edition If a case does go (or return to) litigation, there are two It may be that judicial supervision of a bilateral options (and undoubtedly more) which can be considered symmetrical reconciliation process will require the in legal strategy: invention of a new institution which is capable of bridging between the two parties in a manner that both parties stick with the early cases in the evolution of the consider to be fair and unbiased. concept of reconciliation (a la Van der Peet) and continue to argue as to whether a certain custom was How would such a new institution be devised? As the central and integral to the culture of a people prior to Supreme Court pointed out later in the Secession decision, contact by Europeans etc. etc This approach almost amending the rules of the game can only be accomplished guarantees everything will be so embroiled and tangled “through a process of negotiation which ensures that there that by the time the argument is ready to move on to is an opportunity for the constitutionally-defined rights of Mikisew and Haida, those latter cases will be rendered all the parties to be respected and reconciled.” to be of little use. Negotiation would be unsuccessful, however, if the Or, federal party entered it with its current policies and legal start with the precepts of Mikisew and Haida and more position or if First Nations would set out an immutable recent thinking about reconciliation, which will likely non-negotiable position. A paraphrasing of the Supreme mean recourse to Van der Peet is not required. This Court in its Reference re Secession decision might have means First Nations plaintiffs and applicants are this result: arguing Haida, the governments are arguing Van der We hold that First Nations could not purport to invoke Peet – and generally the decisions of the Court are a right of self-determination such as to dictate the terms written either in support of or in answer to the First of having a bilateral relationship with the sovereignty Nation positions. It is almost that the substantive of the Crown. That would not be a negotiation at all. dialogue is not between the adversaries, but between No negotiations could be effective if their ultimate is the First Nations and the Courts. cast as an absolute legal entitlement. Such a foregone <<<<>>>> conclusion would undermine the obligation to negotiate and render it hollow. To close this essay on reconciliation, a conundrum: However, we are equally unable to accept the reverse if First Nations were to be successful in achieving proposition, that a clear expression of First Nations to symmetry and parity in the reconciliation process, have a different relationship of their “sovereignty” with acting on the basis of rights and jurisdiction in the respect to the claim of the federal government that its same way that the Crown acts on the basis of rights and sovereignty trumps any First Nation claim. The jurisdiction, Canadian courts may no longer be of continued existence and operation of the Canadian assistance. constitutional order cannot remain indifferent to the As the Supreme Court of Canada said in Reference re clear expression of peoples who occupied Canada Secession of Quebec,51 before the arrival of Europeans and who claim that the sovereignty they enjoyed at that time remains in effect. The reconciliation of the various legitimate constitutional interests is necessarily committed to the A political majority that does not act in accordance political rather than the judicial realm precisely with the underlying constitutional principles we have because that reconciliation can only be achieved identified puts at risk the legitimacy of the exercise of through the give and take of political negotiations. its rights. To the extent issues addressed in the course of Negotiations would be necessary to address the interests negotiation are political, the courts, appreciating their of the federal government, of Quebec and the other proper role in the constitutional scheme, would have no provinces, and other participants, as well as the rights of supervisory role. all Canadians both within and outside Quebec. Undertaking that task seems to be too far into the future to be contemplated now. 51 [1998] 2 S.C.R. 217 <<<>>> <e-notes> Reconciliation of Two Opposing Absolute Rights: First Nations “Sovereignty” vs. Crown “Sovereignty” -29- an informative <e-note> by <[email protected]> 5 February 2010 Edition ADDENDUM means of maintaining the critical and integral aspects of those societies (Gladstone) The original essay in 2010 was followed with an i) reconciliation of aboriginal prior occupation with the Appendix, “The Evolution of the Definition of assertion of the sovereignty of the Crown (Chief Justice ‘Reconciliation’ in Canadian Jurisprudence.” Lamer in Van der Peet); That appendix soon evolved into an entirely separate j) reconciliation of those distinctive features that need to paper, “Geneology of Reconciliation in Supreme Court be acknowledged and reconciled with the sovereignty of of Canada First Nations Decisions” which is available the Crown (Chief Justice Lamer in Van der Peet); from <[email protected]> or can be downloaded from <www.academia.edu> k) reconciliation not only of prior aboriginal occupation, but also a prior legal regime giving rise to aboriginal APPENDIX rights which persist, absent extinguishment, with European settlement and sovereignty and to do so in a way The Evolution of the Definition of “Reconciliation” that provides the basis for a just and lasting settlement of in Canadian Jurisprudence aboriginal claims consistent with the high standard which the law imposes on the Crown in its dealings with a) reconcile the Hurons' need to protect the exercise of aboriginal peoples (Justice McLachlin in dissent in their customs and the desire of the British conquerors to Delgamuukw); expand (Justice Lamer in Sioui, 1990); .l) reconciliation is the promise embodied in s. 35(1) b) reconcile the competing interests at the time the Treaty (Chief Justice McLachlin in Mitchell); was made (Justice Lamer in Sioui); m) reconciliation is the accomplished through the means c) reconcile federal power and First Nation rights, of the duty to consult and accommodate potentially something which should be done voluntarily (Sparrow); conflicting rights (B.C. Supreme Court in Gitxsan and d) reconciling federal power with federal duty by Other First Nations); demanding the justification of any government regulation n) reconciliation is a process mandated by s. 35(1) in that infringes upon or denies aboriginal rights (Sparrow); which the Crown acts honourably, not interpreting that e) reconciliation is the process by which the Indian culture term narrowly or technically, but given full effect (Chief can be preserved and by which other Canadians may be Justice McLaughlin in British Columbia (Minister of assured that their interests, developed over 125 years of Forests) v. Okanagan Indian Band); nationhood, can also be respected (Justice McFarlane in o) reconciliation through treaties of pre-existing B.C. Court of Appeal in Delgamuukw); Aboriginal sovereignty with assumed Crown f) reconciliation of aboriginal societies with the broader sovereignty (Chief Justice McLachlin in Haida political community of which they are a part (Chief Nation); Justice Lamer in Delgamuukw); p) reconciliation acknowledges the historical injustices g) reconciliation is the balancing of aboriginal rights with suffered by Aboriginal peoples and places limits on the such interests as “the pursuit of economic and regional ability of the Crown to alter the content of the right fairness, and the recognition of the historical reliance claimed in the pre-proof stage (Justice Vickers on Haida upon, and participation in, the fishery by non-aboriginal in Tsilq'otin); groups . . . In the right circumstances, such objectives are q) reconciliation underpins s. 35 of the Constitution Act in the interest of all Canadians and, more importantly, the 1982, and for it to have meaning, there is a broader duty reconciliation of aboriginal societies with the rest of on the Crown with respect to Aboriginal relations than Canadian society may well depend on their successful that imposed by a fiduciary relationship (Justice Binnie in attainment.” (Gladstone); Wewaykum Indian Band); h) reconciliation of the existence of distinctive aboriginal r) reconciliation of aboriginal peoples and non-aboriginal societies prior to the arrival of Europeans with the peoples and their respective claims, interests and assertion of Crown sovereignty over that territory as a ambitions (Justice Binnie in Mikisew Cree); <e-notes> Reconciliation of Two Opposing Absolute Rights: First Nations “Sovereignty” vs. Crown “Sovereignty” -30- an informative <e-note> by <[email protected]> 5 February 2010 Edition x) reconciliation: the time to reach an honourable s) in the long process of reconciliation, treaty-making is an resolution and reconciliation is with us today (Justice important stage, but it is only as stage -- the treaty is not a Vickers in Tsilq'otin); complete discharge of the duty arising from the honour of the Crown, but a rededication of it (Justice Binnie in y) reconciliation: the Province of British Columbia has a Mikisew Cree; "constitutional imperative" to engage in reconciliation (Justice Garson, B.C. Supreme Court in Cook v Minister t) reconciliation is the overall objective of the modern law of Aboriginal Relations and Reconciliation); of treaty and aboriginal rights, and consultation is key to achievement of this objective -- the signing of Treaty 8 z) reconciliation and negotiation are reflected in s. 25 of was not the end of reconciliation, but the beginning the Constitution Act 1982 -- it protects s.35(1) purposes (Justice Binnie in Mikisew Cree); and enlarges the reach of measures needed to fulfill the promise of reconciliation (Justice Bastarache, R. v. Kapp, u) the principle of reconciliation over litigation is a bona Supreme Court of Canada); fide commitment required of the Crown -- it is not promoted by litigation of cases and rather requires honest aa) reconciliation is a process and that process does not and open dialogue (Platinex 2006); end with the making of a treaty -- the process carries on through the implementation of that treaty and is guided by v) reconciliation of the pre-existence of aboriginal a duty of honourable dealing; (quoted by Justice Douglas societies with the sovereignty of the Crown is the goal of Campbell in Brokenhead First Nations from Treaty s.35 (Justice Phelan in Dene Tha); Commission of Saskatchewan). w) reconciliation of a just, lasting and consensual nature is the challenge of the present Canadian community, requiring compromises on all sides -- trials in a courtroom have the inevitable downside of producing winners and losers (Justice Vickers in Tsilq'otin); <<<<>>>> <e-notes> Reconciliation of Two Opposing Absolute Rights: First Nations “Sovereignty” vs. Crown “Sovereignty” -31- an informative <e-note> by <[email protected]> 5 February 2010 Edition NEW 2016 ADDENDUM Since the original publication of the above essay in 2010, outside of the courts, Canada struck a “Truth and Reconciliation Commission”. In the 2015 federal election. The Liberal and New Democrat Party made generous use of the term “reconciliation” in their platform. After the election, the Truth and Reconciliation Commission which tabled its full report in December 2015. Speaking on that occasion, Prime Minister Justin Trudeau announced the Canadian government will work with indigenous leaders and other key partners “to design a national engagement strategy for developing and implementing a national reconciliation framework.” The “S-word” did not appear in the election dialogue, although both Liberals and NDP promised to enter into a “nation to nation relationship with Indigenous People’. Also since the 2010 essay, as of January 2016, there were 297 court decisions which used the word “reconciliation” with regard to “First Nations” in some context. Add “sovereignty” to the mix, and the number is reduced to 86 cases. Interesting to note that of the 86, over half, 46, are British Columbia cases. It must be noted, therefore, that the jurisprudence developed in this area is highly “British Columbia-centric”, and involves a place where there are not treaties for large area, British sovereignty was “assumed” prior to Treaty, and settlement was established prior to Treaty. These conditions were not present when the Rupert’s Land and North West Territory transactions too place at the time of Confederation. 2010 the settlement of ancient grievances. The future is more important than the past”. In Beckman v. Little Salmon/Carmacks First Nation,52 Justice Binnie’s majority decision baldy states, “ 2013 [8] Historically, treaties were the means by which the In Sga’nism Sim’augit (Chief Mountain) v. Canada Crown sought to reconcile the Aboriginal inhabitants (Attorney General),53 in the B.C. Court of Appeal, the of what is now Canada to the assertion of European decision of Justice Harris stated: sovereignty over the territories traditionally occupied by First Nations. [3] The Nisga’a Final Agreement and the Settlement Legislation acknowledge in their respective preambles He does not explain how the Treaties were the means of that the courts have said that reconciliation between the reconciliation, nor does he acknowledge any sovereignty prior presence of Aboriginal peoples and the assertion for the “Aboriginal inhabitants”. of sovereignty is best achieved through negotiation and In the minority decision by Justice Deschamps, para. 122, agreement, rather than litigation and conflict. This it is explained that First Nations are in a “special Treaty took many years to negotiate. relationship”, “originally based on the recognition of The Treaty is an agreement intended to resolve historic Aboriginal institutions that existed before the Crown claims advanced for more than a century by the Nisga’a asserted its sovereignty, that Aboriginal peoples, as Nation without litigation or conflict, and to lay the peoples, can enter into treaties with the Crown.” foundation for a productive and positive relationship That is to say, the Crown can enter into treaties because it between the Nisga’a Nation and the non-Aboriginal is sovereign, but “Aboriginal peoples, as peoples” enter community. into treaties because the had “Aboriginal institutions” which existed before the Crown came along. 2014 Whatever their authority, Justice Binnie saw the treaty as New points of view entered into t he judicial dialogue in being “as much about building relationships as it is about 2014 in Tyendinaga Mohawk Council v. Brant54 in the 53 2013 BCCA 49 (CanLII), < http://canlii.ca/t/fw02j> 52 [2010] 3 SCR 103, 2010 SCC 53 (CanLII), para. 10, 54 <http://canlii.ca/t/2df7v> 2014 ONCA 565 (CanLII), < http://canlii.ca/t/g8856> <e-notes> Reconciliation of Two Opposing Absolute Rights: First Nations “Sovereignty” vs. Crown “Sovereignty” -32- an informative <e-note> by <[email protected]> 5 February 2010 Edition Ontario Court of Appeal. It went introduced a discussion result, is inalienable to third parties”: Delgamuukw, at of the character of Indian title in Canada which leads into para. 113. This has all been reaffirmed in the the question of “sovereignty”. It begins with “the seminal Tsilhqot’in Nation case. case of St. Catharines Milling, which, it said, was The Court of Appeal then signals there are problems with “strongly influenced by jurisprudence from the Supreme these constructs: Court of the United States such as Johnson v. McIntosh (1823).55 The definition of Indian title in Canada most [62] Parenthetically, in the past several years the legal often referenced is found in the decision of the Privy principle that “discovery” by European nations in Council at pp. 54-55: colonial times gave rise to the astounding consequen- ces to indigenous peoples found by Johnson v. [T]he tenure of the Indians was a personal and McIntosh and St. Catharine’s Milling, has come under usufructuary right, dependent upon the good will of the criticism for its use as a valid legal principle. Sovereign.… [T]here has been all along vested in the Crown a substantial and paramount estate, underlying 2015 the Indian title, which became a plenum dominium whenever that title was surrendered or otherwise In Haida Nation v. Canada (Fisheries and Oceans),56 extinguished. the court noted without comment that The Court of Appeal continued the chain which deals with [14] The 1993 Gwaii Haanas Agreement recognizes “sovereignty” by totally ignoring it: the dual assertions of sovereignty, title and ownership [59] The definition of Indian title to land in Canada by the Government of Canada and the Haida Nation in developed in St. Catherine’s Milling began with the Gwaii Haanas, including both lands and waters. British policy from colonial times on the finding of This is the first case where the two sovereignties are set indigenous people on newly-discovered lands. That out side-by-side without further comment. policy was that on discovery, the indigenous people were the rightful occupants of the land but with only a <<<<>>>> legal claim to retain possession and use of it. Thus it is that after a flurry of judicial exposition in the “[T]heir rights to complete sovereignty, as 1990s and 2000s led to an igniting of hope with the direct independent nations, were necessarily diminished, words of Haida Nation in 2004, Indigenous sovereignty and their power to dispose of the soil at their own by virtue of prior occupation v. the “assumed sovereignty” will, to whomsoever they pleased, was denied by of the Crown, the discussion of reconciliation of the the original fundamental principle that discovery sovereignty of Indigenous Nations vis-a-vis the gave exclusive title to those who made it”: Calder, sovereignty of the Crown has sputtered out. at 382, citing Johnson v. McIntosh. There was one case which stuck to the clear statement of Dickson J. in Guerin went on to find at p. 378 that the Haida: Huu-Ay-Aht First Nation v. British Columbia European claims to sovereignty were justified by the (Minister of Forests),57 2005 BCSC 697 (CanLII) at para. principle of discovery. Although the Court in 94 [Huu-Ay-Aht First Nation], approved by this Court in Tsilhqot’in Nation did not address the doctrine of Wii’litswx #1: discovery directly, it did provide a more complete statement of the character of Aboriginal title at para. [94] Haida … and Taku River … established that the 70: “the right to the benefits associated with the land – principle of the honour of the Crown requires the Crown to use it, enjoy it and profit from its economic to consult and, if necessary, accommodate Aboriginal development.” peoples prior to proof of asserted Aboriginal rights and title. This is a corollary of s. 35 of the Constitution Act, The term used in our jurisprudence is that Indian title is 1982, in which reconciliation of Aboriginal and Crown sui generis, which distinguishes it from normal property interests. It “cannot be transferred, sold or surrendered to anyone other than the Crown and, as a 56 2015 FC 290 (CanLII), < http://canlii.ca/t/ggq8k> 57 Huu-Ay-Aht First Nation et al. v. The Minister of Forests et 55 8 W heaton 543, 21 U.S. 240 al., 2005 BCSC 697 (CanLII), <http://canlii.ca/t/1kg2j> <e-notes> Reconciliation of Two Opposing Absolute Rights: First Nations “Sovereignty” vs. Crown “Sovereignty” -33- an informative <e-note> by <[email protected]> 5 February 2010 Edition sovereignty implies a continuing process of negotiation It accomplishes these legal gymnastics by speaking of “the which is different from the administrative duty of fairness ultimate goal of reconciliation of the Crown’s sovereignty that is triggered by an administrative decision that affects with the aboriginal rights enshrined in s. 35 of the rights, privileges, or interests Constitution Act” (para. 178), rather than the reconciliation of two sovereignties. And that was it. [3] It is settled law that the reconciliation of rights The Courts, perhaps supported by the reluctance of many embedded in claims such as those made in this case by lawyers to even mention the subject, have successfully the KFN with the sovereignty of the Crown requires evaded the issue by ignoring it. This is accomplished by that those rights be determined, recognized and continuing to present the “sovereignty of the Crown” as respected. While those rights are being determined, the being so clear it is beyond discussion, while the Crown, acting honourably, must consult with the First “sovereignty of the Indigenous Nation” is pushed out of Nation before making decisions that might affect their sight to be replaced by “rights to the land” or “rights rights or claims and, where indicated, accommodate which pre-existed the assumption of sovereignty”, etc. their interests. The most recent decision in which the issue arose Other cases have avoided the argument by gratuitously dismisses the discussion by simply recasting it in very granting indigenous rights status as being “sui generis”. different terms while at the same time not questioning Crown sovereignty. It is Chartrand v. British Columbia Students of the decolonization of a colonizer’s laws may (Forests, Lands and Natural Resource Operations),58 find the next decade interesting. The Truth and which ends up supporting the First Nation position but Reconciliation Commission has recommended the arrives there by travelling over a very different route. abolition of the Doctine of Discovery, and the UN Declaration of the Rights of Indigenous Peoples speaks of In it, “rights” are respected in a way which supports free, prior and informed consent being required for the use Crown sovereignty (“honour of the Crown requires that of indigenous lands. respect”) without having to dealing with any thought that the rights are derived by indigenous sovereignty. Stand by. Fasten your seatbelts. We are expecting turbulence. <<<<>>>> Weesahkay Jack and the Great Flood by Roy Kakegamic 58 2015 BCCA 345 (CanLII), < http://canlii.ca/t/gkdbd>