So Much Litigation, So Little Reconciliation

The entrenchment of aboriginal rights in Section 35 of the 1982 Constitution Act triggered a spate of litigation over the next three decades that has expanded the treaty rights and land claims of First Nations, Metis and Inuit peoples across Canada. Supreme Court of Canada Chief Justice Beverley McLachlin, who joined the court in 1989 and has led it since 2000, helped decide many of those cases. Last March, she told a group of law students in Toronto that the goal of “reconciliation” has guided the court’s work on aboriginal rights. The process is still in its “very early days,” she added, predicting it will become an increasing focus for the court in coming years. Yet in spite of the court’s work on aboriginal rights, reconciliation seems no closer today than it was three decades ago.

As tempting as it is to blame the Supreme Court for this lack of progress, the root of the problem lies in s.35(1) itself: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” We’re still figuring out what it means, let alone how to best harness it to the goal of reconciliation. Although the court has recognized that reconciliation is ultimately a political task, the codification of aboriginal rights in the supreme law of the land means the task of interpreting that vaguely written provision has mostly fallen to the courts.

For most of Canadian history, the Crown’s relationship with aboriginal groups was administered by legislators, not judges. Over time, the Crown crafted a legal relationship based on the Royal Proclamation of 1763, the British North America Act of 1867, the Indian Act, and the treaties. It hardly bears repeating that the relationship was not always positive. Over the course of the 19th and 20th centuries, various attempts were made to “solve the Indian problem” through assimilation, including the creation of the residential school system.

These integration efforts culminated in Ottawa’s 1969 White Paper, a proposal to abolish the Indian Act, dismantle the Department of Indian Affairs, privatize the reserves, and effectively end the special legal status of “Indians.” Then Prime Minister Pierre Trudeau said at the time that “[aboriginals] should become Canadians as all other Canadians… this is the only basis on which I see our society can develop as equals.” The White Paper sparked outrage among aboriginal groups across Canada, who mobilized to fight it both politically and in the courts. In 1973, the Nisga’a Nation earned a split decision from the Supreme Court in Calder, which acknowledged for the first time that aboriginal title had existed prior to colonization and continued to exist unless expressly extinguished.

Trudeau returned to power in 1980 and helped defeat Quebec’s separatists in the first sovereignty referendum with a promise to enshrine protection for the French language and culture in a Charter of Rights. But the early drafts of the Charter contained no such accommodation for aboriginals. Trudeau imagined a Canadian national identity based on universal equality, which he hoped would eventually supersede francophone and aboriginal nationalism. But aboriginal groups largely viewed themselves as distinct nations parallel to the Canadian nation, not within it. A 1980 paper by the Union of B.C. Indian Chiefs (UBCIC) affirmed that aboriginals across Canada sought to “insure [sic] the political integrity of our association with [the Crown] and the security of our various Nations from absorption in Canada.” A 1980 bulletin from the Constitutional Express of aboriginal protestors headed to Ottawa likewise warned: “The Charter of Rights and Freedoms… does not recognise [sic] the rights of groups of people. We would no longer be Bands, Tribes or Nations. We would each be classified as Canadians.”

After substantial lobbying, aboriginal rights were ultimately inserted into the Constitution Act. But the discrepancy between Trudeau’s vision of a unified Canada and aboriginal groups’ desire to retain distinct status was not resolved simply by adding s.35. Its vague language did not specify what rights it protected or how those rights interacted with the Charter rights of other Canadians and the sovereignty of the Crown.

The concept of reconciliation as a guiding principle for relations between Canada and its aboriginal peoples was peripheral to the early cases adjudicating s.35, even as late as the pivotal 1990 Sparrow ruling by the Supreme Court, which introduced “inherent” aboriginal rights to the jurisprudence. The principle really came to the fore in 1996, in R v. Van der Peet, when then Chief Justice Antonio Lamer concluded that s.35 sought “the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown.” According to this majority view, reconciliation was a political task for both parties to achieve through negotiation. Notably, however, Lamer clarified that courts must “be sensitive to the aboriginal perspective, but they must also be aware that aboriginal rights exist within the general legal system of Canada.” In other words, aboriginal rights existed within the broader legal order, and were ultimately subordinate to the Crown’s sovereignty, although the Crown had to provide adequate justification if its actions infringed on those rights. Section 35 thus limited aboriginal rights even as it affirmed them.

McLachlin, then still a Justice, held a dissenting view in Van der Peet. She agreed with the majority that it was up to the Crown and aboriginal groups to negotiate a “just and lasting settlement,” i.e. a treaty. At the treaty stage – “the stage of reconciliation” – the courts had a lesser role to play, as negotiation was a political task. However, she diverged from the majority on the limitations on s.35 rights. Although she agreed that justified infringement by the Crown was possible, she found Chief Justice Lamer’s approach left too much to the Crown’s discretion.In her view, reconciliation was not possible if the Crown retained the power to extinguish an aboriginal right “without the consent of the aboriginal people, without treaty, and without compensation.”

Since becoming Chief Justice in 2000, McLachlin’s views on reconciliation have evolved into a doctrine that has largely been embraced by the entire court. The main shift has been in redefining reconciliation as an ongoing process instead of a goal. In Haida Nation v. British Columbia, 2004, she noted:

“…the duty to consult and accommodate is part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution. Reconciliation is not a final legal remedy in the usual sense. Rather it is a process flowing from rights guaranteed by s.35(1) of the Constitution Act, 1982.”

McLachlin’s theory not only recasts reconciliation as a process, but further locates the key to its success in the government’s continuing duty to consult and accommodate in a manner that upholds the honour of the Crown.

The “honour of the Crown” and the “duty to consult and accommodate” sound great in theory: Of course the Crown should deal honourably with aboriginal groups, as with all Canadians. Yet the broad nature of these concepts means that consultation in accordance with the Crown’s honour depends, at least initially, on an aboriginal group’s perception of whether or not the Crown has upheld its obligations. If the group feels it hasn’t, the dispute is likely to land in court because only the courts can ultimately decide if the Crown has fulfilled its duties.

Consequently, reconciliation has become a judicial process instead of a political one. In this context, it’s increasingly likely that aboriginal groups will head to court if dissatisfied with the Crown instead of negotiating further. And although the Supreme Court has developed tests to objectively guide decisions on such matters, much is still up to the court’s discretion. Because the judicial process is by its nature adversarial, the Supreme Court’s assumption of a more prominent role in reconciliation has done more to increase tensions than to mitigate them.

One by-product of the McLachlin Court’s reconciliation doctrine has been the dilution of treaties. Even modern treaties, explicitly drafted to provide clarity and finality to both parties, have been de facto reopened by the court’s requirement for perpetual consultation. An example is the 2010 Beckman v. Little Salmon/Carmacks case. Despite having settled a land claim, the Yukon Government was found in breach of its fiduciary duty for issuing an agricultural lease on a ceded piece of land within Little Salmon traditional territory. The government’s assertion that the two decades of treaty negotiations qualified as adequate consultation was denied, for it didn’t adhere to the court’s interpretation of reconciliation as an ongoing process.

This summer’s Tsilhqot’in decision, in which the Supreme Court granted aboriginal title to a specific band for the first time, may have even greater implications than Haida. It affirmed the view held by many aboriginal groups that adequate consultation effectively means consent. How this will affect treatied First Nations is unclear, since the Tsilhqot’in don’t have one. Treaties, as a rule, require aboriginal signatories to cede some lands and surrender certain rights. After Tsilhqot’in, aboriginal groups who surrendered land and rights in return for greater autonomy, financial compensation, and a more equalized (reconciled) relationship with the Crown, may now face greater restraints on further claims compared to their non-treatied counterparts. Groups without treaties have not yet extinguished any s.35 rights and can still claim title to their traditional territories. This imbalance was displayed in the different outcomes of the Tsilhqot’in case and the Grassy Narrows case, another Supreme Court ruling this summer. The Grassy Narrows First Nation, unlike the Tsilhqot’in band, had a concluded treaty. It lost its appeal on grounds that its treaty had extinguished the rights upon which its case had been based.

Several aboriginal groups without treaties have expressed their intentions to enforce their claim to traditional lands in accordance with the Tsilhqot’in ruling instead of continuing to pursue negotiated settlements. Significantly, no treatied band has so far indicated they will do the same.

The root problem with Chief Justice McLachlin’s reconciliation doctrine is that the underlying discrepancy in views which existed at the time of s.35’s drafting has never been adequately resolved. She has said that “reconciliation is founded on an ideal of equality and mutual respect,” yet in practice her doctrine promotes specific group rights over the rights of all Canadians. The net effect has not been equality-based reconciliation, but constitutionally-entrenched inequality, in which certain groups enjoy greater constitutional protection than “normal” Canadians because of their culture. The net result is a Constitution that, to paraphrase George Orwell, views all people as equal, but some more equal than others. The impetus to secure aboriginal rights in the Constitution was a direct response to the White Paper’s assimilationist policy, yet in strengthening aboriginal rights to safeguard against assimilation, the law has inadvertently fostered assimilation’s direct opposite, constitutionally-entrenched segregation.

Does s.35 belong in the Constitution? The question is moot, because any attempt to remove or amend it today would give rise to all sorts of political and practical complications. Ultimately, the section probably should never have been added because it conflicts with the Constitution’s most important purpose, to articulate the fundamental, common values of the nation. These values cannot be purposive; they must flow from the people, not to them. Canada’s Constitution only partly meets these criteria, because the inclusion of group rights qualifies our most basic ideal of universal equality. While group rights may well merit protection through legislation or regulations, a Constitution should not espouse the rights of the few but be reserved exclusively for the rights of all.

Since removing or amending s.35 is not a viable option, the most practical solution would be for political leaders from both sides to reclaim the value of negotiation over litigation. It’s entirely possible. Canadians and aboriginal groups have lived relatively peacefully together throughout their shared history, and many aboriginal Canadians have successfully balanced their indigenous identity with citizenship. Even Harold Cardinal, the godfather of modern Canadian aboriginal nationalism, wrote in 1969 that “the vast majority of our people are committed to the concept of Canadian unity and to the concept of participation in that unity.” The challenge lies in identifying precisely how aboriginal groups will participate in the Canadian federation, and that is ultimately a task for aboriginal groups to negotiate with the Crown.

By now, it’s clear that reconciliation will not happen in court. That doesn’t mean we should abandon it as a goal; it just means we have to find a better path to its achievement. In the end, as Chief Justice Lamer put it, “[l]et us face it, we’re all here to stay.”


Yule Schmidt is a Whitehorse writer. She gratefully acknowledges input from aboriginal law and policy experts Tom Flanagan, Christopher Alcantara and Dwight Newman for this article.


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