genealogy of reconcilliation

<e-notes> from [email protected] 5 February 2010 Edition

Reconciliation: Resolving Conflict

Between Two Absolute but Opposing Rights:

First Nation “Sovereignty” vs. Crown “Sovereignty”

A Four Arrows <e-notes> Background Paper IV

What do you think was the earliest case in which the

Supreme Court of Canada talked of the need to "reconcile

Aboriginal law and common law?" Can you think of any

later cases where that discussion is continued?

This clear question was posed by Dr. Michael Posluns,

author of Speaking With Authority: The Emergence of the

Vocabulary of First Nations’ Self-Government and The

Fourth World, coauthored with George Manuel.

The discussion which follows is an effort to answer that

question via a free-flowing exploration.

One beginning point might be the Royal Proclamation,

1763 in which King George III directed all within his

command that the sovereignty of the indigenous nations

was to be respected absolutely, that none of his subjects

were to enter upon indigenous lands, and that any

extension of his sovereignty onto their lands was to take

place only after a Treaty had been entered into.

We jump ahead two centuries from 1763. It is 1982.

Canada has patriated its Constitution, and in it the promise

that existing aboriginal and treaty rights are recognized

and affirmed in s. 35. The Department of Justice is of the

firm belief that s. 35 is a throw-away feel-good section,

since there are no existing rights left.

Not only was this the legal assumption, but, opinion had

it, there was a new reality at this point in time which First

Nations simply had to face. As the B.C. Court of Appeal

put it in Sparrow in 1986:1

The constitutional recognition of the right to fish

cannot entail restoring the relationship between

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

a federal division of powers. It cannot be defined as if

the Musqueam Band had continued to be a self-

governing entity, or as if its members were not

citizens of Canada and residents of British Columbia.

Any definition of the existing right must take into

account that it exists in the context of an industrial

society with all of its complexities and competing

interests. The “existing right” in 1982 was one which

had long been subject to regulation by the federal

government. It must continue to be so because only

government can regulate with due regard to the

interests of all.

The Supreme Court of Canada overturned that decision in

1990. It ruled the word “existing” had a great deal of2

meaning. Earlier in 1990, the Supreme Court had issued

its decision in R. v. Sioui, where the issue was whether3

Georges Sioui and a group of fellow Hurons could cut

some firewood, build a fire, and engage in some

traditional ceremonies in a provincial park. The Sioui

party said their activities were “within their rights”, and

the Quebec Government said arresting them was “within

their rights”.

The case went to the Supreme Court of Canada. Peter

Hutchins, acting for the intervenor National Indian

Brotherhood won the rare right to introduce new evidence

at the Supreme Court level – a document signed in 1760

by General Murray. Hutchins argued that the brief and

informal document constituted a treaty which guaranteed

the Hurons, in exchange for their surrender, British

protection and the free exercise of their religion, customs

and trade with the English.

R. v. Sparrow 1986 CanLII 172 (BC C.A.), (1986), 32 C.C.C.1

(3rd) 65 (B.C.C.A.), pp. 90-1, overturned by Supreme Court of

Canada..

[1990] 1 S.C.R. 10752

[1990] 1 S.C.R. 1025, 1990 CanLII 103 (S.C.C.) • 70 D.L.R.3

(4th) 427 • 56 C.C.C. (3d) 225 • [1990] 3 C.N.L.R. 127. Found

online athttp://www.canlii.org/en/ca/scc/doc/1990/1990canlii103/1990canlii103.html

mailto:[email protected]

Reconciliation of Two Opposing Absolute Rights: First Nations “Sovereignty” vs. Crown “Sovereignty” -2-

an informative <e-note> by <[email protected]> 5 February 2010 Edition

The Supreme Court decision was written by Justice

Antonio Lamer, prior to his appointment as Chief Justice.

Justice Lamer’s Reasons for Decision followed this line:

a) although the treaty gives the Hurons the freedom to

carry on their customs and religion, it makes no

mention of the territory over which these rights may

be exercised;

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

was concluded. When the historical context is given

its full meaning, the interpretation that is called for is

that the parties contemplated that the rights guaranteed

by the treaty could be exercised over the entire

territory frequented by the Hurons in 1760, so long as

the carrying on of the customs and rites was not

incompatible with the particular use made by the

Crown of this territory.

c) This interpretation would reconcile the Hurons'

need to protect the exercise of their customs and the

desire of the British conquerors to expand; it gave the

British the necessary flexibility to be able to respond

in due course to the increasing need to use Canada's

resources, in the event that Canada remained under

British suzerainty, and it allowed the Hurons to

continue carrying on their rites and customs on the

lands frequented to the extent that those rites and

customs did not interfere with enjoyment of the lands

by their occupier;

d) a provincial park accessible to the public for the

purposes of education and cross country recreation

was a type of occupancy which is not incompatible

with the exercise of Huron rites and customs. The

activities with which the respondents are charged do

not seriously compromise the Crown's objectives in

occupying the park.

e) Under s. 88 of the Indian Act, the Sioui party could

therefore not be prosecuted since the activities in

question were the subject of a treaty.

“Accordingly,” Justice Lamer wrote,

“I conclude that in view of the absence of any express

mention of the territorial scope of the treaty, it has to

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

conquerors to expand. Protecting the exercise of the

customs in all parts of the territory frequented when it

is not incompatible with its occupancy is in my

opinion the most reasonable way of reconciling the

competing interests.”

Justice Lamer’s articulation of this task has endured in the

jurisprudence, namely, choosing “from the various

possible interpretations of common intention the one

which best reconciles" the interests of parties at the time

the treaties were made.

<<<<>>>>

The concept of reconciliation echoed in a second decision

by the Supreme Court of Canada shortly after Sioui. In

Sparrow, Chief Justice Dickson and Justice La Forest put

reconciliation of federal power and First Nation rights as

something to be done voluntarily by the federal

government:

There is no explicit language in the provision [s.

35(1)] that authorizes this Court or any court to assess

the legitimacy of any government legislation that

restricts aboriginal rights. Yet, we find that the words

“recognition and affirmation” incorporate the

fiduciary relationship referred to earlier and so import

some restraint on the exercise of sovereign power.

Rights that are recognized and affirmed are not

absolute.

Federal legislative powers continue, including, of

course, the right to legislate with respect to Indians

pursuant to s. 91(24) of the Constitution Act, 1867.

These powers must, however, now be read together

with s. 35(1). In other words, federal power must be

reconciled with federal duty and the best way to

achieve that reconciliation is to demand the

justification of any government regulation that

infringes upon or denies aboriginal rights.

<<<<>>>>

Delgamuukw v. British Columbia , Justice McFarlane of4

the B.C. Court of Appeal in 1993 took a different run at

the issue.

“[284] During the course of these proceedings it

became apparent that there are two schools of thought.

The first is an "all or nothing approach", which says

that the Indian nations were here first, that they have

exclusive ownership and control of all the land and

1993 CanLII 4516 (BC C.A.); 104 D.L.R. (4th) 470 • [1993] 54

W.W.R. 97



resources and may deal with them as they see fit. The

second is a co-existence approach, which says that the

Indian interest and other interests can co-exist to a

large extent, and that consultation and reconciliation is

the process by which the Indian culture can be

preserved and by which other Canadians may be

assured that their interests, developed over 125 years

of nationhood, can also be respected. The Indian

plaintiffs have taken the first step in recognizing the

importance of other vested interests by not making a

claim to lands within the Territory held by others

under a fee simple title.”

In a separate decision in the same case, Mr. Justice

Lambert wrote in dissent (and later quoted Justice

Laforest in the Supreme Court of Canada decision which

supported Justice Lambert’s dissent):

So, in the end, the legal rights of the Indian people

will have to be accommodated within our total society

by political compromises and accommodations based

in the first instance on negotiation and agreement and

ultimately in accordance with the sovereign will of the

community as a whole.

The legal rights of the Gitksan and Wet’suwet’en

people, to which this law suit is confined, and which

allow no room for any approach other than the

application of the law itself, and the legal rights of all

aboriginal peoples throughout British Columbia, form

only one factor in the ultimate determination of what

kind of community we are going to have in British

Columbia and throughout Canada in the years ahead.

<<<<>>>>

Reconciliation expressed in similar terms appeared again

in 1996 with the Gladstone, Van der Peet and Smokehouse

trilogy. As B.C. Justice D.H Vickers pointed out a decade

later in Tsilqhot’in, essentially this was a revisiting of the

Court’s views in Sparrow:

In defining the scope of Aboriginal rights protected by

s. 35(1), Lamer C.J.C. re-interpreted the Sparrow

theory of reconciliation (a means to reconcile

constitutional recognition of Aboriginal rights with

federal legislative power) as a means to work out the

appropriate place of Aboriginal people within the

Canadian state.

In R. v. Gladstone, the Supreme Court of Canada upheld5

the Gladstone’s appeal of convictions for selling herring

spawn on kelp without a license.

Lamer C.J.C. continued at para. 73:

Because … distinctive aboriginal societies exist

within, and are a part of, a broader social, political and

economic community, over which the Crown is

sovereign, there are circumstances in which, in order

to pursue objectives of compelling and substantial

importance to that community as a whole (taking into

account the fact that aboriginal societies are part of

that community), some limitation of those rights will

be justifiable.

Aboriginal rights are a necessary part of the

reconciliation of aboriginal societies with the broader

political community of which they are a part; limits

placed on those rights are, where the objectives

furthered by those limits are of sufficient importance

to the broader community as a whole, equally a

necessary part of that reconciliation.

There, the Supreme Court followed a similar line of

thinking as in Sioui, but made it clear reconciliation had to

do with “interests”, not “sovereignty”, since all

sovereignty was held by the Crown: “. . . distinctive

aboriginal societies exist within, and are a part of, a

broader social, political and economic community, over

which the Crown is sovereign. . .”

Here the Gladstone Court slides into a third type of

reconciliation: not reconciliation of rights, not

reconciliation of interests, but what might be termed

“social reconciliation.” There is no indication the Court is

aware of the difference categories of reconciliation which

are at play.

In the context of social reconciliation, aboriginal rights

had to be balanced against such interests as “the pursuit of

economic and regional fairness, and the recognition of the

historical reliance upon, and participation in, the fishery

by non-aboriginal groups . . . In the right circumstances,

such objectives are in the interest of all Canadians and,

more importantly, the reconciliation of aboriginal societies

with the rest of Canadian society may well depend on their

successful attainment.”

[1996] 2 S.C.R. 723. Parallel citations: 1996 CanLII 1605

(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.



There was no reciprocity to the concept, because the

amalgamation of the aboriginal society into the larger

society makes reciprocity no longer necessary. “The larger

society” always wins, even if the right being defended is

critical to survival of the aboriginal society and conceding

the right is of only marginal interest to “the larger society.”

As the Court said, the purposes underlying aboriginal

rights must inform not only the definition of the rights but

also the identification of those limits on the rights which

are justifiable. Because distinctive aboriginal societies

exist within, the Court said, and are a part of, a broader

social, political and economic community, over which the

Crown is sovereign, there are circumstances in which, in

order to pursue objectives of compelling and substantial

importance to that community as a whole (taking into

account the fact that aboriginal societies are a part of that

community), some limitation of those rights will be

justifiable.

That is what s. 35 of the Canadian Constitution, 1982 is

all about, the Court stated in paragraph 73,

“Aboriginal rights are recognized and affirmed by s.

35(1) in order to reconcile the existence of distinctive

aboriginal societies prior to the arrival of Europeans in

North America with the assertion of Crown

sovereignty over that territory; they are the means by

which the critical and integral aspects of those

societies are maintained.”

The mystical “assertion of Crown sovereignty over

Canadian territory” simply slides off the Gladstone

Court’s pen and is stated as an indisputable fact. No effort

is made to justify the statement. Neither is there any

explanation as to why the “distinctive aboriginal societies”

seem to have only “occupied” the land without any

mention of their sovereignty, while the Crown is accorded

sovereignty without prior occupation. 6

Having set the stage with these potential polarities, the

Court sets out what constitutes “compelling and

substantial objectives” which might allow the Crown to

override “aboriginal rights” and pay compensation for

having done so pursuant to the Sparrow test. After quoting

from Van der Peet, Chief Justice Lamer states in para. 72:

“. . . the import of these purposes is that the objectives

which can be said to be compelling and substantial

will be those directed at either the recognition of the

prior occupation of North America by aboriginal

peoples or – and at the level of justification it is this

purpose which may well be most relevant – at the

reconciliation of aboriginal prior occupation with the

assertion of the sovereignty of the Crown.”

This revised theory of reconciliation then provides the

rationale for the wide range of legislative objectives that

could meet the compelling and substantial requirement set

out in Sparrow.

The Court goes on to say that Aboriginal rights are a

necessary part of the reconciliation of aboriginal societies

with the broader political community of which they are

part; limits placed on those rights are, where the

objectives furthered by those limits are of sufficient

importance to the broader community as a whole, equally

a necessary part of that reconciliation.

<<<<>>>>

The unbalanced definition of status of the two societies,

one which is said to have had “prior occupation” and the

other said to have “sovereignty” is further compounded in

Van der Peet which also was decided by the Supreme

Court of Canada in 1996. Van der Peet sets out certain7

tests which the “aboriginal party” is required to meet but

which are not required of the “Canadian party”.

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

because it has “sovereignty”.

The Court saw the two parties not as being in a bilateral

A footnote in Prof. Kent McNeil’s “Reconciliation and the6

Supreme Court: the Opposing Views of Chief Justices Lamer

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

Supreme Court had “deftly avoided” this issue. See Michael

Asch and Patrick Macklem, “Aboriginal Rights and Canadian

Sovereignty: An Essay on R. v. Sparrow” (1991 29 Alta L. Rev.

498; John Borrows, “Sovereignty’s Alchemy: An Analysis of

Delgamuukw v. British Columbia” (1999) 37 Osgoode Hall L.J.

537; Michael Asch, “First Nations and the Derivation of

Canada’s Underlying Title: Comparing perspectives on Legal

Ideology” in Curtis Cook and Juan D. Lindau, eds., Aboriginal

Rights and Self-Government: The Canadian and Mexican

Experience in North American Perspective (Montreal &

Kingston: McGill-Queen’s University Press, 2000) 148. .

R. v. Van der Peet, [1996] 2 S.C.R. 507.7



relationship, but rather in a fiduciary relationship:

“A purposive analysis of s. 35(1) must take place in

light of the general principles applicable to the legal

relationship between the Crown and aboriginal

peoples. This relationship is a fiduciary one and a

generous and liberal interpretation should accordingly

be given in favour of aboriginal peoples. Any

ambiguity as to the scope and definition of s. 35(1)

must be resolved in favour of aboriginal peoples.”

The Court saw this relationship as “pre-existing doctrine”

which was elevated “to constitutional status.” If, however,

this doctrine was “pre-existing”, it must have been

established when the “Doctrine of Discovery” was still

fully at play. In other words, the adoption of the “fiduciary

relationship” rather than the “bilateral relationship” is

fruit picked from the tree of the Doctrine of Discovery.

Understanding this point is critical to understanding the

diminishing of the rights of the indigenous people from

rights in a bilateral context to being mere “aboriginal

rights” in a fiduciary relationship.

As Van der Peet points out,

“Aboriginal rights existed and were recognized under

the common law. They were not created by s. 35(1)

but subsequent to s. 35(1) they cannot be

extinguished. They can, however, be regulated or

infringed consistent with the justificatory test laid out

in R. v. Sparrow.”

Van der Peet continues in paragraph 31:

“. . . what s. 35(1) does is provide the constitutional

framework through which the fact that aboriginals

lived on the land in distinctive societies, with their

own practices, traditions and cultures, is

acknowledged and reconciled with the sovereignty of

the Crown. The substantive rights which fall within

the provision must be defined in light of this purpose;

the aboriginal rights recognized and affirmed by s.

35(1) must be directed towards the reconciliation of

the pre-existence of aboriginal societies with the

sovereignty of the Crown.”8

The “definition of rights” phrase echoes back to the

Constitution Act, 1982 as it read in 1982 but no longer

reads as it did then. The purpose of the First Ministers

Conferences mandated by the Constitution was to

“identify and define” the rights which were to be

“recognized and affirmed” by s. 35. Those conferences

failed to fulfil their mandate, as year after year they

foundered on the proposition advanced by federal and

provincial governments that the box of rights was empty

until such time as the parties had agreed as to which rights

would be put in the box, while the First Nations, Inuit and

Metis parties to the conference insisted that the box was

already full, and the task of the conference was simply to

conduct an inventory of the rights which the box

contained.

The Supreme Court of Canada decided in Van der Peet to

set out the criteria for the unfulfilled task of “identifica-

tion and definition”. An “aboriginal right”, it said had to

be “integral” to the aboriginal society claiming the right.

“To be integral, a practice, custom or tradition must be of

central significance to the aboriginal society in question –

one of the things which made the culture of the society

distinctive. A court cannot look at those aspects of the

aboriginal society that . . . are only incidental or

occasional to that society. It is those distinctive features

that need to be acknowledged and reconciled with the

sovereignty of the Crown,” Van der Peet continues.

Note the asymmetry: where a claim by an aboriginal

society of a right conflicts with the Crown’s claim to

jurisdiction, the Crown is not required to justify that its

exercise of its jurisdiction is “integral to Canadian

society”.

The Van der Peet Court saw its approach to s. 35(1) as

being supported by the prior jurisprudence of the Court,

citing Calder as the case in point. In that decision, Justice

Hall recognized the existence of “aboriginal title”base on

the fact that the land to which they were claiming title had

“been in their possession from time immemorial"

Justice Judson in Calder had explained the origins of the

Nishga's aboriginal title as follows, at p. 328:

“Although I think that it is clear that Indian title in

British Columbia cannot owe its origin to the

Proclamation of 1763, the fact is that when the settlers

came, the Indians were there, organized in societies

and occupying the land as their forefathers had done

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

are asserting in this action is that they had a right to

continue to live on their lands as their forefathers had

In R. v. Jacobs, 1998 CanLII 3988 (BC. S.C.), the court8

interpreted this to mean that “s. 35(1) only recognizes and

affirms aboriginal rights that can be reconciled with sovereignty.



lived and that this right has never been lawfully

extinguished.”

Van der Peet also looked to Johnson v. M‘Intosh, the first9

of the decisions of United States Supreme Court Chief

Justice John Marshall on aboriginal title. In the course of

his decision, the Chief Justice outlined the history of the

exploration of North America by the countries of Europe

and the relationship between this exploration and

aboriginal title. In his view, aboriginal title is the right of

First Nations to land arising from the intersection of their

pre-existing occupation of the land with the assertion of

sovereignty over that land by various European nations.

The substance and nature of aboriginal rights to land are

determined by this intersection. As the Chief Justice wrote:

On the discovery of this immense continent, the great

nations of Europe were eager to appropriate to

themselves so much of it as they could respectively

acquire. Its vast extent offered an ample field to the

ambition and enterprise of all; and the character and

religion of its inhabitants afforded an apology for

considering them as a people over whom the superior

genius of Europe might claim an ascendency.

The potentates of the Old World found no difficulty in

convincing themselves that they made ample

compensation to the inhabitants of the new, by

bestowing on them civilization and Christianity, in

exchange for unlimited independence. But, as they

were all in pursuit of nearly the same object, it was

necessary, in order to avoid conflicting settlements,

and consequent war with each other, to establish a

principle, which all should acknowledge as the law by

which the right of acquisition, which they all asserted,

should be regulated as between themselves.

This principle was, that discovery gave title to the

government by whose subjects, or by whose authority,

it was made, against all other European governments,

which title might be consummated by possession.

The exclusion of all other Europeans, necessarily gave

to the nation making the discovery the sole right of

acquiring the soil from the natives, and establishing

settlements upon it. It was a right with which no

Europeans could interfere. It was a right which all

asserted for themselves, and to the assertion of which,

by others, all assented.

Those relations which were to exist between the

discoverer and the natives, were to be regulated by

themselves. The rights thus acquired being exclusive,

no other power could interpose between them.

In the establishment of these relations, the rights of the

original inhabitants were, in no instance, entirely

disregarded; but were necessarily, to a considerable

extent, impaired. They were admitted to be the

rightful occupants of the soil, with a legal as well as

just claim to retain possession of it, and to use it

according to their own discretion; but their rights to

complete sovereignty, as independent nations, were

necessarily diminished, and their power to dispose of

the soil at their own will, to whomsoever they pleased,

was denied by the original fundamental principle, that

discovery gave exclusive title to those who made it.

While the different nations of Europe respected the

right of the natives, as occupants, they asserted the

ultimate dominion to be in themselves; and claimed

and exercised, as a consequence of this ultimate

dominion, a power to grant the soil, while yet in

possession of the natives. These grants have been

understood by all, to convey a title to the grantees,

subject only to the Indian right of occupancy.

This reasoning assumes that the corollary of the Doctrine

of Discovery is that the rights of the First Nations to

sovereignty, as independent nations, are “necessarily

diminished.” In Canadian courts, the rights are further

diminished to that only of “prior occupants”.

Successfully attacking this reasoning has been made easier

now that the its foundation, the Doctrine of Discovery, has

been rejected as invalid. But until the corollary concept of

“necessary diminishment” is also vanquished, there will

be a lack of symmetry in the relationship of the parties in

their quest for “reconciliation”.

The Van der Peet court also quoted from “the legal

literature” for support to its position that s. 35(1) provides

the constitutional framework for reconciliation of the

pre-existence of distinctive aboriginal societies occupying

the land with Crown sovereignty. It cited Mark Walter’s

comments on Delgamuukw v. British Columbia. that the

essence of aboriginal rights is their bridging of aboriginal

and non-aboriginal cultures.10

“The challenge of defining aboriginal rights stems

21 U.S. (8 Wheat.) 543 (1823). 9

“British Imperial Constitutional Law and Aboriginal Rights: A10

Comment on Delgamuukw v. British Columbia” (1992), 17

Queen’s L.J. 350, pp. 412-13.



from the fact that they are rights peculiar to the

meeting of two vastly dissimilar legal cultures;

consequently there will always be a question about

which legal culture is to provide the vantage point

from which rights are to be defined. . . . a morally and

politically defensible conception of aboriginal rights

will incorporate both legal perspectives.”

The Van der Peet Court also cited Professor Brian

Slattery’s suggestion “that the law of aboriginal rights is

neither English nor aboriginal in origin: it is a form of

intersocietal law that evolved from long-standing practices

linking the various communities" and that such rights

concern "the status of native peoples living under the

Crown's protection, and the position of their lands,

customary laws, and political institutions." 11

Thus bolstered with Canadian, American, and even

Australian jurisprudence, the Court was ready to adopt the

basic proposition it had put forward:

“. . . the aboriginal rights recognized and affirmed by

s. 35(1) are best understood as, first, the means by

which the Constitution recognizes the fact that prior to

the arrival of Europeans in North America the land

was already occupied by distinctive aboriginal

societies, and as, second, the means by which that

prior occupation is reconciled with the assertion of

Crown sovereignty over Canadian territory. The

content of aboriginal rights must be directed at

fulfilling both of these purposes. . .”

Unfortunately, the tests the Court utilized for “identifying

Aboriginal Rights in Section 35(1)” would carry the

indelible mark of “necessary diminishment”, however

discredited or shaky that proposition might be.

There would be more “necessary diminishment” to come:

Van der Peet holds that only “crucial elements” of

aboriginal societies, and these are further diminished by

insisting that they be proven to have existed “prior to

contact” and “framed in terms cognizable to the Canadian

legal and constitutional structure”:

“In order to fulfil the purpose underlying s. 35(1) –

i.e., the protection and reconciliation of the interests

which arise from the fact that prior to the arrival of

Europeans in North America aboriginal peoples lived

on the land in distinctive societies, with their own

practices, customs and traditions – the test for

identifying the aboriginal rights recognized and

affirmed by s. 35(1) must be directed at identifying the

crucial elements of those pre-existing distinctive

societies. It must, in other words, aim at identifying

the practices, traditions and customs central to the

aboriginal societies that existed in North America

prior to contact with the Europeans. . .

Framing “aboriginal rights” in “terms cognizable to the

Canadian legal and constitutional structure” is another

aspect of diminishment:.

“As has already been noted, one of the fundamental

purposes of s. 35(1) is the reconciliation of the

pre-existence of distinctive aboriginal societies with

the assertion of Crown sovereignty. Courts adjudicat-

ing aboriginal rights claims must, therefore, be sensi-

tive to the aboriginal perspective, but they must also

be aware that aboriginal rights exist within the general

legal system of Canada. To quote again Walters, at p.

413: "a morally and politically defensible conception

of aboriginal rights will incorporate both [aboriginal

and non-aboriginal] legal perspectives". The

definition of an aboriginal right must, if it is truly to

reconcile the prior occupation of Canadian territory by

aboriginal peoples with the assertion of Crown

sovereignty over that territory, take into account the

aboriginal perspective, yet do so in terms which are

cognizable to the non-aboriginal legal system.

There is no symmetry in this approach, nor is any

justification for lack of symmetry offered. The reciprocal

proposition is not required of the Crown. The Crown does

not have to reconcile the Canadian legal system with

rights asserted or claimed by First Nations. There is no

requirement that the common law take into account “the

aboriginal perspective”.

There is, however, one brief plea for symmetry:

“It is possible, of course, that the Court could be said

to be "reconciling" the prior occupation of Canada by

aboriginal peoples with Crown sovereignty through

either a narrow or broad conception of aboriginal

rights; the notion of "reconciliation" does not, in the

abstract, mandate a particular content for aboriginal

rights. However, the only fair and just reconciliation

is, as Walters suggests, one which takes into account

the aboriginal perspective while at the same time

taking into account the perspective of the common

law. True reconciliation will, equally, place weight on

each.”

Brian Slattery, "The Legal Basis of Aboriginal Title", in Frank11

Cassidy, ed., Aboriginal Title in British Columbia: Delgamuukw

v. The Queen (1992), at pp. 120-21).



Alas, the plea is too late: this symmetry takes place only if

the First Nation party is able to leap all the hurdles in

order to demonstrate the existence of an aboriginal right,

while the Crown’s lane contains no hurdles at all: :

“Courts must identify precisely the nature of the claim

being made in determining whether an aboriginal

claimant has demonstrated the existence of an

aboriginal right.

. . . in assessing a claim to an aboriginal right a court

must first identify the nature of the right being

claimed; in order to determine whether a claim meets

the test of being integral to the distinctive culture of

the aboriginal group claiming the right, the court must

first correctly determine what it is that is being

claimed. The correct characterization of the appellant's

claim is of importance because whether or not the

evidence supports the appellant's claim will depend, in

significant part, on what, exactly, that evidence is

being called to support.

. . . To reconcile aboriginal societies with Crown

sovereignty it is necessary to identify the distinctive

features of those societies; it is precisely those

distinctive features which need to be acknowledged

and reconciled with the sovereignty of the Crown.

“. . . The time period that a court should consider in

identifying whether the right claimed meets the

standard of being integral to the aboriginal community

claiming the right is the period prior to contact

between aboriginal and European societies. Because

it is the fact that distinctive aboriginal societies lived

on the land prior to the arrival of Europeans that

underlies the aboriginal rights protected by s. 35(1), it

is to that pre-contact period that the courts must look

in identifying aboriginal rights.12

“. . . It is not the fact that aboriginal societies existed

prior to Crown sovereignty that is relevant; it is the

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

period prior to the assertion of sovereignty by the Crown.13

The McLachlin Dissent in Van der Peet

It was Justice Beverly McLachlin – now Chief Justice of

the Supreme Court – who wrote the most scathing

dissenting opinion in Van der Peet, addressing what

Justice Vickers later termed “the more problematic

aspects” of the Chief Justice’s reasons. She characterized

the majority views as being “incomplete”.

Justice McLachlin quoted from the decision of Chief

Justice Dickson and Justice La Forest in Sparrow where

that decision quoted Professor Lyon in "An Essay on

Constitutional Interpretation" in giving a much more14

hearty interpretation to the meaning of s.35:

. . . the context of 1982 is surely enough to tell us that

this is not just a codification of the case law on

aboriginal rights that had accumulated by 1982.

Section 35 calls for a just settlement for aboriginal

peoples. It renounces the old rules of the game under

which the Crown established courts of law and denied

those courts the authority to question sovereign claims

made by the Crown.

Precisely.

Justice McLachhlin continued her attack:

It may not be wrong to assert, as the Chief Justice

does, that the dual purposes of s. 35(1) are first to

recognize the fact that the land was occupied prior to

European settlement and second, to reconcile the

assertion of sovereignty with this prior occupation.

But it is, with respect, incomplete. As the foregoing

passages from Sparrow attest, s. 35(1) recognizes not

only prior aboriginal occupation, but also a prior legal

regime giving rise to aboriginal rights which persist,

absent extinguishment. And it seeks not only to

reconcile these claims with European settlement and

sovereignty but also to reconcile them in a way that

As Prof. Kent McNeil has observed in “Reconciliation and the12

Supreme Court” (2003), the promise of giving “equal weight” is

negated by the tests which “reveal just how little aboriginal

perspectives really count.”

Delgamuukw in the Supreme Court of Canada added two13

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

aboriginal peoples on that land.

(1988), 26 Osgoode Hall L.J. 95, at p. 100, Dickson C.J. and14

La Forest J. continued at p. 1106.



provides the basis for a just and lasting settlement of

aboriginal claims consistent with the high standard

which the law imposes on the Crown in its dealings

with aboriginal peoples.

Following these precepts, this Court in Sparrow

decreed, at pp. 1106 7, that s. 35(1) be construed in a

generous, purposive and liberal way. It represents "a

solemn commitment that must be given meaningful

content" (p. 1108). It embraces and confirms the

fiduciary obligation owed by the government to

aboriginal peoples (p. 1109). It does not oust the

federal power to legislate with respect to aboriginals,

nor does it confer absolute rights. Federal power is to

be reconciled with aboriginal rights by means of the

doctrine of justification. The federal government can

legislate to limit the exercise of aboriginal rights, but

only to the extent that the limitation is justified and

only in accordance with the high standard of

honourable dealing which the Constitution and the law

imposed on the government in its relations with

aboriginals (p. 1109). [emphasis added]

To summarize, a court approaching the question of

whether a particular practice is the exercise of a

constitutional aboriginal right under s. 35(1) must

adopt an approach which: (1) recognizes the dual

purposes of s. 35(1) (to preclude extinguishment and

to provide a firm foundation for settlement of

aboriginal claims); (2) is liberal and generous toward

aboriginal interests; (3) considers the aboriginal claim

in the context of the historic way of life of the people

asserting it; and (4) above all, is true to the position of

the Crown throughout Canadian history as trustee or

fiduciary for the first peoples of this country.

. . .

This much appears from the Royal Proclamation of

1763, R.S.C., 1985, App. II, No. 1, which set out the

rules by which the British proposed to govern the

territories of much of what is now Canada. The

Proclamation, while not the sole source of aboriginal

rights, recognized the presence of aboriginals as

existing occupying peoples. It further recognized that

they had the right to use and alienate the rights they

enjoyed the use of those territories.

The assertion of British sovereignty was thus

expressly recognized as not depriving the aboriginal

people of Canada of their pre existing rights; the

maxim of terra nullius was not to govern here.

Moreover, the Proclamation evidences an underlying

concern for the continued sustenance of aboriginal

peoples and their descendants. It stipulated that

aboriginal people not be permitted to sell their land

directly but only through the intermediary of the

Crown.

The purpose of this stipulation was to ensure that the

aboriginal peoples obtained a fair exchange for the

rights they enjoyed in the territories on which they had

traditionally lived an exchange which would ensure

the sustenance not only of the current generation but

also of generations to come. . .

. . .

These arrangements bear testimony to the acceptance

by the colonizers of the principle that the aboriginal

peoples who occupied what is now Canada were

regarded as possessing the aboriginal right to live off

their lands and the resources found in their forests and

streams to the extent they had traditionally done so.

The fundamental understanding – the Grundnorm of

settlement in Canada – was that the aboriginal people

could only be deprived of the sustenance they

traditionally drew from the land and adjacent waters

by solemn treaty with the Crown, on terms that would

ensure to them and to their successors a replacement

for the livelihood that their lands, forests and streams

had since ancestral times provided them. . .

. . .

. . . We apply the common law, but the common law

we apply must give full recognition to the pre existing

aboriginal tradition.

. . . I share the concern of L'Heureux Dubé J. that the

Chief Justice defines the rights at issue with too much

particularity, enabling him to find no aboriginal right

where a different analysis might find one. By

insisting that Mrs. Van der Peet's modern practice of

selling fish be replicated in pre contact Sto:lo

practices, he effectively condemns the Sto:lo to

exercise their right precisely as they exercised it

hundreds of years ago and precludes a finding that the

sale constitutes the exercise of an aboriginal right.

Madam Justice McLachlin also criticized that the

approach to of Chief Justice Lamer in his decision was

“indeterminate and ultimately may speak more to the

politically expedient than to legal entitlement.

The imprecision of the proposed test is apparent. "In

the right circumstances", themselves undefined,

governments may abridge aboriginal rights on the

basis of an undetermined variety of considerations.

While "account" must be taken of the native interest



and the Crown's fiduciary obligation, one is left

uncertain as to what degree.

At the broadest reach, whatever the government of the

day deems necessary in order to reconcile aboriginal

and non aboriginal interests might pass muster. In

narrower incarnations, the result will depend on

doctrine yet to be determined. Upon challenge in the

courts, the focus will predictably be on the social

justifiability of the measure rather than the rights

guaranteed.

Courts may properly be expected, the Chief Justice

suggests, not to be overly strict in their review; as

under s. 1 of the Charter, the courts should not negate

the government decision, so long as it represents a

"reasonable" resolution of conflicting interests. This,

with respect, falls short of the "solid constitutional

base upon which subsequent negotiations can take

place" of which Dickson C.J. and La Forest J. wrote in

Sparrow, at p. 1105.

Again, precisely.

Madam Justice McLachlin made a third observation: “the

proposed departure from the principle of justification

elaborated in Sparrow is unnecessary to provide the

"reconciliation" of aboriginal and non aboriginal interests

which is said to require it.

“The Chief Justice correctly identifies reconciliation

between aboriginal and non aboriginal communities as

a goal of fundamental importance. This desire for

reconciliation, in many cases long overdue, lay behind

the adoption of s. 35(1) of the Constitution Act, 1982.

As Sparrow recognized, one of the two fundamental

purposes of s. 35(1) was the achievement of a just and

lasting settlement of aboriginal claims.

The Chief Justice also correctly notes that such a

settlement must be founded on reconciliation of

aboriginal rights with the larger non aboriginal culture

in which they must, of necessity, find their exercise. It

is common ground that ". . . a morally and politically

defensible conception of aboriginal rights will

incorporate both [the] legal perspectives" of the "two

vastly dissimilar legal cultures" of European and

aboriginal cultures": Walters, supra, at pp. 413 and

412, respectively.

The question is how this reconciliation of the different

legal cultures of aboriginal and non aboriginal peoples

is to be accomplished. More particularly, does the

goal of reconciliation of aboriginal and non aboriginal

interests require that we permit the Crown to require a

judicially authorized transfer of the aboriginal right to

non aboriginals without the consent of the aboriginal

people, without treaty, and without compensation? I

cannot think it does.

On this view, the right imposes its own internal limit

equivalence with what by ancestral law and custom

the aboriginal people in question took from the

resource. The government may impose additional

limits under the rubric of justification to ensure that

the right is exercised responsibly and in a way that

preserves it for future generations. There is no need to

impose further limits on it to affect reconciliation

between aboriginal and non aboriginal peoples.

[emphasis added]

The second reason why it is unnecessary to adopt the

broad doctrine of justification proposed by the Chief

Justice is that other means, yet unexploited, exist for

resolving the different legal perspectives of aboriginal

and non aboriginal people. In my view, a just

calibration of the two perspectives starts from the

premise that full value must be accorded to such

aboriginal rights as may be established on the facts of

the particular case.

Only by fully recognizing the aboriginal legal

entitlement can the aboriginal legal perspective be

satisfied. At this stage of the process – the stage of

defining aboriginal rights – the courts have an

important role to play. But that is not the end of the

matter. The process must go on to consider the non-

aboriginal perspective – how the aboriginal right can

be legally accommodated within the framework of non

aboriginal law.

It was Justice McLachlin’s view that reconciliation

between Aboriginal and non Aboriginal peoples could be

achieved in a way that was more respectful of

constitutional principles. She noted that Aboriginal and

non-Aboriginal perspectives have historically been

reconciled through treaties. Thus she argued for

reconciliation through negotiated settlements.

Traditionally, this has been done through the treaty

process, based on the concept of the aboriginal people

and the Crown negotiating and concluding a just

solution to their divergent interests, given the

historical fact that they are irretrievably compelled to

live together. At this stage, the stage of reconciliation,

the courts play a less important role. It is for the

aboriginal peoples and the other peoples of Canada to



work out a just accommodation of the recognized

aboriginal rights.

This process – definition of the rights guaranteed by s.

35(1) followed by negotiated settlements – is the

means envisioned in Sparrow, as I perceive it, for

reconciling the aboriginal and non aboriginal legal

perspectives. It has not as yet been tried in the case of

the Sto:lo. A century and one half after European

settlement, the Crown has yet to conclude a treaty

with them.

Until we have exhausted the traditional means by

which aboriginal and non aboriginal legal

perspectives may be reconciled, it seems difficult to

assert that it is necessary for the courts to suggest

more radical methods of reconciliation possessing the

potential to erode aboriginal rights seriously.

I have argued that the broad approach to justification

proposed by the Chief Justice does not conform to the

authorities, is indeterminate, and is, in the final

analysis unnecessary. Instead, I have proposed that

justifiable limitation of aboriginal rights should be

confined to regulation to ensure their exercise

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

respectful opinion, unconstitutional.

The Chief Justice's proposal comes down to this. In

certain circumstances, aboriginals may be required to

share their fishing rights with non aboriginals in order

to effect a reconciliation of aboriginal and non

aboriginal interests. In other words, the Crown may

convey a portion of an aboriginal fishing right to

others, not by treaty or with the consent of the

aboriginal people, but by its own unilateral act. I

earlier suggested that this has the potential to violate

the Crown's fiduciary duty to safeguard aboriginal

rights and property.

But my concern is more fundamental. How, without

amending the Constitution, can the Crown cut down

the aboriginal right? The exercise of the rights

guaranteed by s. 35(1) is subject to reasonable

limitation to ensure that they are used responsibly.

But the rights themselves can be diminished only

through treaty and constitutional amendment. To

reallocate the benefit of the right from aboriginals to

non aboriginals, would be to diminish the substance of

the right that s. 35(1) of the Constitution Act, 1982

guarantees to the aboriginal people. This no court can

do. [emphasis added]

I therefore conclude that a government limitation on

an aboriginal right may be justified, provided the

limitation is directed to ensuring the conservation and

responsible exercise of the right. Limits beyond this

cannot be saved on the ground that they are required

for societal peace or reconciliation. Specifically,

limits that have the effect of transferring the resource

from aboriginal people without treaty or consent

cannot be justified. Short of repeal of s. 35(1), such

transfers can be made only with the consent of the

aboriginal people. It is for the governments of this

country and the aboriginal people to determine if this

should be done, not the courts. In the meantime, it is

the responsibility of the Crown to devise a regulatory

scheme which ensures the responsible use of the

resource and provides for the division of what remains

after conservation needs have been met between

aboriginal and non aboriginal peoples.

<<<<>>>>

The final case in 1996 involving “reconciliation” was

Adams. ., which provides an example of a situation where15

the broader public interest did not justify a prima facie

infringement of an Aboriginal right. The result of that case

is summarized by Chief Justice Lamer, at paragraph 58:

I have some difficulty in accepting, in the circum-

stances of this case, that the enhancement of sports

fishing per se is a compelling and substantial objective

for the purposes of s. 35(1). While sports fishing is an

important economic activity in some parts of the

country, in this instance, there is no evidence that the

sports fishing that this scheme sought to promote had

a meaningful economic dimension to it.

On its own, without this sort of evidence, the

enhancement of sports fishing accords with neither of

the purposes underlying the protection of aboriginal

rights, and cannot justify the infringement of those

rights. It is not aimed at the recognition of distinct

aboriginal cultures. Nor is it aimed at the

reconciliation of aboriginal societies with the rest of

Canadian society, since sports fishing, without

evidence of a meaningful economic dimension, is not

"of such overwhelming importance to Canadian

society as a whole" (Gladstone, at para. 74) to warrant

the limitation of aboriginal rights. [emphasis added]

1996 CanLII 169 (S.C.C.), [1996] 3 S.C.R. 10115



<<<<>>>>

In 1997, in Delgamuukw at the Supreme Court of16

Canada, Chief Justice Lamer referred back to his Reasons

for Decision in Van der Peet. There, he said he had

explained, reconciliation between prior occupation by

distinctive aboriginal societies and Crown sovereignty was

to be achieved by “their bridging of aboriginal and

non-aboriginal cultures” (at para. 42). Accordingly, he

said, “a court must take into account the perspective of the

aboriginal people claiming the right. . . . while at the same

time taking into account the perspective of the common

law” such that “[t]rue reconciliation will, equally, place

weight on each” (at paras. 49 and 50).

Chief Justice Lamer’s closing remarks also referred to

reconciliation. The concluding sentence is quoted more

than the admonition to the Crown which preceded it:

As was said in Sparrow, at p. 1105, s. 35(1) “provides

a solid constitutional base upon which subsequent

negotiations can take place”. Those negotiations

should also include other aboriginal nations which

have a stake in the territory claimed. Moreover, the

Crown is under a moral, if not a legal, duty to enter

into and conduct those negotiations in good faith.

Ultimately, it is through negotiated settlements, with

good faith and give and take on all sides, reinforced by

the judgments of this Court, that we will achieve what

I stated in Van der Peet, supra, at para. 31, to be a

basic purpose of s. 35(1) -- “the reconciliation of the

pre-existence of aboriginal societies with the

sovereignty of the Crown”. Let us face it, we are all

here to stay.

Unfortunately, the majority reasons in Delgamuukw also

expanded the list of justificable infringements of

aboriginal title:

In the wake of Gladstone, the range of legislative

objectives that can justify the infringement of

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 with the assertion of Crown sovereignty,

which entails the recognition that “distinctive

aboriginal societies exist within, and are a part of, a

broader social, political and economic community” (at

para. 73). In my opinion, the development of

agriculture, forestry, mining, and hydroelectric power,

the general economic development of the interior of

British Columbia, protection of the environment or

endangered species, the building of infrastructure and

the settlement of foreign populations to support those

aims, are the kinds of objectives that are consistent

with this purpose and, in principle, can justify the

infringement of aboriginal title.

In the separate decision of Justices La Forest and

L’Heureux-Dubé in Delgammukw, Justice La Forest

wrote,

On a final note, I wish to emphasize that the best

approach in these types of cases is a process of

negotiation and reconciliation that properly considers

the complex and competing interests at stake. This

point was made by Lambert J.A. in the Court of

Appeal:17

So, in the end, the legal rights of the Indian people

will have to be accommodated within our total society

by political compromises and accommodations based

in the first instance on negotiation and agreement and

ultimately in accordance with the sovereign will of the

community as a whole. The legal rights of the Gitksan

and Wet’suwet’en peoples, to which this law suit is

confined, and which allow no room for any approach

other than the application of the law itself, and the

legal rights of all aboriginal peoples throughout

British Columbia, form only one factor in the ultimate

determination of what kind of community we are

going to have in British Columbia and throughout

Canada in the years ahead. [Emphasis added.]

Mr. Justice La Forest also referred with approval to the

statements by the Royal Commission on Aboriginal

Peoples respecting the relative merits of negotiated18

recognition of Aboriginal rights and title over

court-imposed solutions. In the passage referred to by Mr.

Justice La Forest, the Royal Commission states

The courts can be only one part of a larger political

process of negotiation and reconciliation. As noted in

a recent report by a task force of the Canadian Bar

Association, "While the courts may be useful to

decide some native issues or to bring pressure on the

Delgamuukw v. British Columbia, [1997] 3 S.C.R. 101016

1993 CanLII 4516 (BC C.A.), [1993] 5 W.W.R. 97, at pp.17

379-80

Report of the Royal Commission on Aboriginal Peoples,18

“Restructuring the Relationship,” Part 2, at page 562.



parties to settle by some other means, it appears clear

that judicial adjudication will not provide all of the

answers to the issues surrounding native claims".

Negotiations are clearly preferable to court-imposed

solutions. Litigation is expensive and time-consuming.

Negotiation permits parties to address each other's real

needs and make complex and mutually agreeable

trade-offs. A negotiated agreement is more likely to

achieve legitimacy than a court-ordered solution, if

only because the parties participate more directly and

constructively in its creation. Negotiation also mirrors

the nation-to-nation relationship that underpins the

law of Aboriginal title and structures relations

between Aboriginal nations and the Crown.

<<<<>>>>

In R. v. Marshall in 1999, “reconciliation” moved its19

focus from reconciling competing interests in the present

to the question of reconciling the intentions of parties to

Treaty at the time treaty was entered into, first proposed in

Sioui. Mr. Justice Binnie spoke of the need to seek an

interpretation of common intention of the parties which

"best reconciles the interests of both parties at the time the

treaty was signed."

<<<<>>>>

In 2001, Chief Justice McLachlin returned to the theme of

“reconciliation” in Mitchell, when she wrote of "the

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

phrase is an attractive one and has been repeated in other

jurisprudence, still without elaboration.

However, criticism was starting to emerge on how the

courts were defining “reconciliation”. John Borrows in

“Domesticating Doctrines: Aboriginal Peoples after the

Royal Commission” wrote: 20

Courts have read Aboriginal rights to lands and

resources as requiring a reconciliation that asks much

more of Aboriginal peoples than it does of Canadians.

Reconciliation should not be a front for assimilation.

Reconciliation should be embraced as an approach to

Aboriginal-Canadian relations that also requires

Canada to accede in many areas.

Yet both legislatures and courts have been pursuing a

course that, by and large, asks change only of

Aboriginal peoples. Canadian institutions have been

employing domesticating doctrines in their response to

the [Royal Commission on Aboriginal Peoples]. This

approach hinders Aboriginal choice in the

development of their lands and resources, rather than

enhancing it.

<<<<>>>>

Gitxsan and Other First Nations v. British Columbia

(Minister of Forests) in 2002 offered a useful discussion21

of the development of the law of duty of consultation as it

applied to the question of reconciliation.

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

aboriginal title and rights ) and thus there my be two

conflicting rights whenever the Crown seeks to grant

rights to parties over land claimed as subject to

aboriginal rights. The duty to consult and

accommodate then arises from those potentially

conflicting rights and becomes the means of

reconciling those rights.

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 the exercise of aboriginal rights including title if

such rights should be proven to exist in the area in

question.

<<<<>>>>

Another view of reconciliation – one that seems to be

worth repeating – was expressed in 2002 by Mr. Justice

J.E. Scanlan in the Nova Scotia Supreme Court in R. v.

Marshall (S.F.). The comment related to the slow22

progress of reconciliation:

I would make one final observation which is clearly in

the nature of obiter. During the course of arguing this

appeal Crown counsel indicated the Mi'kmaq of Nova

Scotia may have valid claims in parts of this province

other than at the cutting sites. The Courts, in earlier

decisions have referred to the fact that many of the

1999 CanLII 665 (S.C.C.), [1999] 3 S.C.R. 45619

(2001) 46 McGill L.J. 615 (QL) at para. 64.20

2002 BCSC 1701 (CanLII), (2002), 10 B.C.L.R. (4th) 126,21

2002, BCSC 1701.

2002 NSSC 57 (CanLII)22



issues still outstanding between Aboriginal

communities and governments are best resolved

through a process of negotiations as opposed to

litigation.

Litigation, whether criminal or civil, is slow and

extremely expensive. This adversarial approach does

nothing to further the process of reconciliation.

Surely after waiting 240 years it is time to move on

and 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 forward and prosper together. There are

limitations in what can be done after 240 years but it

is best to address the issues before another century

goes by.

It may be in the interest of all involved if the

outstanding issues can be resolved by identifying

bundles of possible rights or entitlements and

resolving the grievances through a comprehensive

settlement. If the issues are not addressed in a global

way then a piecemeal approach will continue. . . A

lasting resolution to these matters will only be

achieved through negotiation. A lasting resolution

will provide an opportunity for reconciliation.

Another Nova Scotia judge who became impatient with

the Crown’s efforts toward reconciliation was Provincial

Court Associate Chief Judge R. Brian Gibson in R. v.

Paul.23

“The evidence and record reveal that the Applicants

are members if the Indian Brook Mi’kmaq community

and have, from the outset of these charges, asserted

that they have a treaty right to fish for snow crab. The

Crown had the option to test or deal with that treaty

issue in a number of ways, aside from pursuing a

prosecution of the Applicants on both of these

charges. Other approaches could have been either a

reference or a declaratory action as stated in Marshall

II at paragraph 13. Another approach, and perhaps the

best approach, as stated in Marshall II at paragraph 22,

would have been to pursue a “process of negotiation

and reconciliation that properly considers the complex

and competing interests at stake”. All of these

non-prosecutorial approaches likely would have

involved the Indian Brook Mi’kmaq community and

perhaps the entire Mi’kmaq community in Nova

Scotia rather than placing the onus of establishing the

treaty right upon the Applicants.

“The State has the right to use its discretion and

pursue whichever approach it wishes. However, if the

State chooses to pursue the prosecutorial approach, it

ought not have the unfair advantage of prosecuting

Applicants who lack the financial resources to retain

legal counsel and lack the ability to advance a

treaty-based defence without the benefit of legal

counsel.”

<<<<>>>>

Where Has All This Brought Us To?

Madam Justice Satanove of the B.C. Supreme Court in

Lax Kw'alaams Indian Band v. Canada (Attorney

General), made a useful summary of the “general legal24

principles” set out by the Supreme Court of Canada to

provide a framework within which to decide “the complex

and sometimes esoteric issues that arise in aboriginal

cases.” Included in the list is the following evidence that

must be provided to the court to establish “an aboriginal

right”.

1. Evidence that there is continuity the right claimed

as it is practiced today with pre-contact practices,

customs and traditions. This means evidence that

2. evidence that the right has not been extinguished;

3. evidence which considers the right in the context of

a pre-contact distinctive culture as well as in the light

of present-day circumstances;

4. evidence that the right was being practiced before

the arrival of Europeans;

5. evidence that the pre-contact activity was an

integral part of the aboriginal community’s culture

prior to contact with the Europeans, that it continued

after the arrival of the Europeans. Where the practice,

custom or tradition arose solely as a response of

European influences then it will not meet the standard

for recognition of an aboriginal right;

6. this means evidence that the right claimed is central

and a significant part of a society’s distinctive culture,

one of the things that made this society truly what it

was.

7. evidence identifying the nature of the right being

2002 NSPC 25 (CanLII). 23

2008 BCSC 447 (CanLII)24



claimed, including the nature of the action done

pursuant to the right;

8. evidence of the practice, custom or tradition being

relied upon to establish the right;

9. evidence that the right is claimed in context and is

not distorted, i.e., that it is not artifically broadened

nor narrowed;

10. evidence that the legislation imposes unreasonable

limits or undue hardship or denies the preferred means

of exercising the rights;

11. evidence or argument that the government’s use of

the legislation is not compelling or substantial;

12. evidence for the particular First Nation community

since general evidence is not acceptable and each case

must be decided on a case-by-case basis.

13. The right right must be expressed in terms

cognizable to the Canadian legal and constitutional

structure.

If the court agrees these tests have been met, the claimant

may have established there is a right which can now move

on to reconciliation.

<<<<>>>>

A Distinct Shift Begins To Take Place

in the Evolution of Reconciliation

In British Columbia (Minister of Forests) v. Okanagan

Indian Band in 2003, the Court made a costs order25

which, it said, would “ensure that the parties will be

encouraged to resolve the matter through negotiation,

which remains the ultimate route to achieving

reconciliation between aboriginal societies and the

Crown.”

<<<<>>>>

The Supreme Court of Canada’s unanimous judgment in

Haida Nation v. British Columbia (Minister of Forests)26

in 2004 stood for the principles that a claim did not have

to be proven before consultation was required, and that

while Aboriginal claims can be and are pursued through

litigation, “negotiation is a preferable way of reconciling

state and Aboriginal interests.” Then, building on

Delgamuukw which built on Van der Peet, she added:

“The historical roots of the principle of the honour of

the Crown suggest that it must be understood

generously in order to reflect the underlying realities

from which it stems. In all its dealings with

Aboriginal peoples, from the assertion of sovereignty

or the resolution of claims and the implementation of

treaties, the Crown must act honourably. Nothing less

is required if we are to achieve “the reconciliation of

the pre-existence of aboriginal societies with the

sovereignty of the Crown”.

It was at this point that Chief Justice McLachlin revisted

her faith in reconciliation through negotiated settlements.

In doing so, she wrote the words that had been buried

away since 1763:

Treaties serve to reconcile pre-existing Aboriginal

sovereignty with assumed Crown sovereignty, and to

define Aboriginal rights guaranteed by s. 35 of the

Constitution Act, 1982.

Section 35 represents a promise of rights recognition,

and “[i]t is always assumed that the Crown intends to

fulfil its promises” (Badger, supra, at para. 41).

This promise is realized and sovereignty claims

reconciled through the process of honourable

negotiation.

It is a corollary of s. 35 that the Crown act honourably

in defining the rights it guarantees and in reconciling

them with other rights and interests.

This, in turn, implies a duty to consult and, if

appropriate, accommodate.

There we have it, finally. “Aboriginal sovereignty” is

“pre-existing”. “Crown sovereignty” is “assumed”.

The basis for bilateralism and symmetry has been

established.

With some occasional reversion in semantics used,

Madam Chief Justice McLachlin elaborates on her

statement and her faith in negotiated settlements:

The jurisprudence of this Court supports the view that

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 [2003] 3 S.C.R. 371, 2003 SCC 71

25

2004 SCC 73, [2004] 3 S.C.R. 51126



guaranteed by s. 35(1) of the Constitution Act, 1982.

This process of reconciliation flows from the Crown’s

duty of honourable dealing toward Aboriginal peoples,

which arises in turn from the Crown’s assertion of

sovereignty over an Aboriginal people and de facto

control of land and resources that were formerly in the

control of that people. . .”

Referring to some of the Court’s previous views on the

role of reconciliation, she states:

To limit reconciliation to the post-proof sphere risks

treating reconciliation as a distant legalistic goal,

devoid of the “meaningful content” mandated by the

“solemn commitment” made by the Crown in

recognizing and affirming Aboriginal rights and title:

Sparrow. . . It also risks unfortunate consequences.

When the distant goal of proof is finally reached, the

Aboriginal peoples may find their land and resources

changed and denuded. This is not reconciliation. Nor

is it honourable.

. . .

But, when precisely does a duty to consult arise?

The foundation of the duty in the Crown’s honour

and the goal of reconciliation suggest that the

duty arises when the Crown has knowledge, real

or constructive, of the potential existence of the

Aboriginal right or title and contemplates conduct

that might adversely affect it. . .

. . .

I conclude that consultation and accommodation

before final claims resolution, while challenging, is

not impossible, and indeed is an essential corollary to

the honourable process of reconciliation that s. 35

demands. It preserves the Aboriginal interest pending

claims resolution and fosters a relationship between

the parties that makes possible negotiations, the

preferred process for achieving ultimate

reconciliation: see Sonia Lawrence and Patrick

Macklem, “From Consultation to Reconciliation:

Aboriginal Rights and the Crown’s Duty to

Consult”. 27

. . .

The controlling question in all situations is what is

required to maintain the honour of the Crown and to

effect reconciliation between the Crown and the

Aboriginal peoples with respect to the interests at

stake. . .

This flows from the meaning of “accommodate”. The

terms “accommodate” and “accommodation” have

been defined as to “adapt, harmonize, reconcile” . . .

“an adjustment or adaptation to suit a special or

different purpose . . . a convenient arrangement; a

settlement or compromise” . . . The accommodation28

that may result from pre-proof consultation is just this

— seeking compromise in an attempt to harmonize

conflicting interests and move further down the path

of reconciliation. A commitment to the process does

not require a duty to agree. But it does require good

faith efforts to understand each other’s concerns and

move to address them.

. . .

Balance and compromise are inherent in the notion of

(2000), 79 Can. Bar Rev. 252, at p. 262.27

Concise Oxford Dictionary of Current English (9th ed. 1995),28

at p. 9.

Treaties serve to reconcile pre-existing

Aboriginal sovereignty with assumed

Crown sovereignty, and to define

Aboriginal rights guaranteed by s. 35 of the

Constitution Act, 1982.

Section 35 represents a promise of rights

recognition, and “[i]t is always assumed that

the Crown intends to fulfil its promises”. . .

This promise is realized and sovereignty

claims reconciled through the process of

honourable negotiation.

It is a corollary of s. 35 that the Crown act

honourably in defining the rights it

guarantees and in reconciling them with

other rights and interests.

This, in turn, implies a duty to consult and,

if appropriate, accommodate.

– Chief Justice Beverly McLachlin

re Haida Nation



reconciliation. . . .

Haida has also come to stand for another proposition: that

the honour of the Crown can trigger the duty to consult for

purpose of reconciliation in cases where fiduciary duty is

insufficient to be the same trigger.

As Justice Vickers put it in Tsilqhot’in, Chief Justice

McLachlin’s concerns set out in Haida “echo her dissent

in Van der Peet, where she disagreed that the goal of

reconciliation permits the Crown to require a judicially

authorized transfer of an Aboriginal right to non-

Aboriginal people without the consent of Aboriginal

people, without treaty and without compensation.”

Justice Vickers saw the McLachlin judgment in Haida as

“returning the focus to a theory of reconciliation which

acknowledges the historical injustices suffered by

Aboriginal peoples and places limits on the ability of the

Crown to alter the content of the right claimed in the pre

proof stage. It is logical to conclude that, in the post-proof

stage, the Crown’s ability to alter or infringe upon an

Aboriginal right would be faced with severe restrictions.”

<<<<>>>>

In Wewaykum Indian Band v. Canada, Justice Binnie of29

the SCC noted that the fiduciary duty does not exist in

every case but rather is limited to situations where a

specific First Nation’s interest arises. As Justice Binnie

explained at paragraph 81 of that judgment, “The

fiduciary duty imposed on the Crown does not exist at

large but in relation to specific Indian interests.”

Thus since 2002, the decision in Wewaykum meant that in

order for the purpose of reconciliation which underpins s.

35 of the Constitution Act, 1982 to have meaning, there

must be a broader duty on the Crown with respect to

Aboriginal relations than that imposed by a fiduciary

relationship.

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

reasonable and necessary, make the required

accommodation. As such, the Crown must consult where

its honor is engaged and its honor does not require a

specific Aboriginal interest to trigger a fiduciary

relationship for it to be so engaged. Another way of

formulating this difference is that a specific infringement

of an Aboriginal right is no longer necessary for the

Government’s duty to consult to be engaged.

The major difference between the fiduciary duty and the

honor of the Crown is that the latter can be triggered even

where the Aboriginal interest is insufficiently specific to

require that the Crown act in the Aboriginal group’s best

interest (that is, as a fiduciary). In sum, where an

Aboriginal group has no fiduciary protection, the honor of

the Crown fills in to insure the Crown fulfills the section

35 goal of reconciliation of “the pre-existence of

aboriginal societies with the sovereignty of the Crown.”30

<<<<>>>>

In Taku River Tlingit First Nation v. British Columbia

(Project Assessment Director), 2004, Chief Justice31

McLachlin added “accommodation” into the

reconciliation formula, again in the context of “competing

societal concerns”:

“. . . accommodation requires that Aboriginal concerns

be balanced reasonably with the potential impact of

the particular decision on those concerns and with

competing societal concerns. Compromise is inherent

to the reconciliation process.”

The Chief Justice also spoke for the Court in building

“honour of the Crown” into the equation:

“In all its dealings with Aboriginal peoples, the Crown

must act honourably, in accordance with its historical

and future relationship with the Aboriginal peoples in

question. The Crown’s honour cannot be interpreted

narrowly or technically, but must be given full effect

in order to promote the process of reconciliation

mandated by s. 35(1).

“The obligation to consult does not arise only upon

proof of an Aboriginal claim, in order to justify

infringement. That understanding of consultation

would deny the significance of the historical roots of

the honour of the Crown, and deprive it of its role in

the reconciliation process. Although determining the

required extent of consultation and accommodation

before a final settlement is challenging, it is essential

to the process mandated by s. 35(1).

2002 SCC 79 (CanLII), [2002] 4 S.C.R. 245, 220 D.L.R. (4th)29

1, 2002 SCC 79

This is the argument set out by Mr. Justice Phelan of the30

Federal Court in Dene Tha' First Nation v. Canada (Minister of

Environment), 2006 FC 1354 (CanLII)

2004 SCC 74, [2004] 3 S.C.R. 55031



“As discussed in Haida, the process of consultation

may lead to a duty to accommodate Aboriginal

concerns by adapting decisions or policies in response.

The purpose of s. 35(1) of the Constitution Act, 1982

is to facilitate the ultimate reconciliation of prior

Aboriginal occupation with de facto Crown

sovereignty. Pending settlement, the Crown is bound

by its honour to balance societal and Aboriginal

interests in making decisions that may affect

Aboriginal claims. The Crown may be required to

make decisions in the face of disagreement as to the

adequacy of its response to Aboriginal concerns.

Balance and compromise will then be necessary.”

<<<<>>>>

In 2005, the Supreme Court of Canada set down its

decision in Mikisew Cree. Justice Ian Binnie started off32

in paragraph 1 with a clear statement:

The fundamental objective of the modern law of

aboriginal and treaty rights is the reconciliation of

aboriginal peoples and non-aboriginal peoples and

their respective claims, interests and ambitions. The

management of these relationships takes place in the

shadow of a long history of grievances and

misunderstanding. The multitude of smaller

grievances created by the indifference of some

government officials to aboriginal people’s concerns,

and the lack of respect inherent in that indifference

has been as destructive of the process of reconciliation

as some of the larger and more explosive

controversies. And so it is in this case.

With these strong and unequivocal words, helpful as they

are in many respects, Justice Binnie opened up a new

definition of reconciliation: not reconciliation of interests,

not reconciliation of sovereignties, but rather

reconciliation of “peoples”.

As well, if we are to move ahead on the strength of Justice

Binnie’s statement, we have to deal with a fact pointed out

by Justice Vickers in Tsilqhot’in:

Courts are not accustomed to taking into account

“claims, interests and ambitions” in the process of

reconciliation. In the course of a trial, a court will

examine an entire body of evidence in an attempt to

establish the factual truth in an objective manner. In

an adversarial system, claims are dealt with to produce

a win/lose result. Interest negotiations, designed to

take opposing interests into account, have the potential

to achieve a win/win result.

Such an approach, in the context of consensual treaty

negotiation, would provide the forum for a fair and

just reconciliation.

Mr. Justice Binnie was critical of the government’s

approach to the rights of the Mikisew.

There is in the Minister’s argument a strong advocacy

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

antithesis of reconciliation and mutual respect.

The overarching objective, he said, should be

“reconciliation, not confrontation”.

“Consultation that excludes from the outset any form

of accommodation would be meaningless. The

contemplated process is not simply one of giving the

Mikisew an opportunity to blow off steam before the

Minister proceeds to do what she intended to do all

along.

“Treaty making is an important stage in the long

process of reconciliation, but it is only a stage. What

occurred at Fort Chipewyan in 1899 was not the

complete discharge of the duty arising from the

honour of the Crown, but a rededication of it.”

In another context, Mr. Justice Binnie wrote that

“consultation is key to achievement of the overall

objective of the modern law of treaty and aboriginal

rights, namely reconciliation.

Mikisew is useful in still another context. The federal

government has argued that Haida is applicable only

where Treaties have not been signed. Where Treaties have

been signed, there is nothing left to discuss. True, Haida

speaks in para. 20 begins by quoting Sparrow:

“Where treaties remain to be concluded, the honour of

the Crown requires negotiations leading to a just

settlement of Aboriginal claims.”

However, any notion this implies finality was shattered by

Mr. Justice Binnie who said in Mikisew that the signing of

Treaty 8 was not the end of reconciliation, but “the

beginning”.

<<<<>>>> Mikisew Cree First Nation v. Canada (Minister of Canadian

32

Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388



A linguistic note: in McDiarmid Lumber Ltd. v. God's

Lake First Nation , the Manitoba Court of Appeal in33

2005 noted that Justice Marceau of the Federal Court of

Appeal had noted with favour the use of the word

“accord” (as it was used in the French text of an Act

rather than the word “agreement”. “Accord,” he noted,

“has a clear connotation of the idea of a reconciliation, of

a pact arrived at by the giving and taking by both parties,

of a mutual understanding worked out through

concessions and compromise, and is therefore a word

closely related to treaty. . .”

<<<<>>>>

In 2005 the Government of British Columbia and the B.C.

First Nations Leadership Council entered into a “New

Relationship” based on “respect, recognition and

accommodation of Aboriginal title and rights; respect for

each others’ laws and responsibilities, and for the

reconciliation of Aboriginal and Crown titles and

jurisdictions.” A new Ministry was established, “Minister

of Aboriginal Relations and Reconciliation”.

As a result of the New Relationship, several agreements

were entered into to “create the opportunity for

comprehensive and lasting reconciliation:

Musqueam Reconciliation, Settlement and Benefits

Agreement – settled three court cases with the

Musqueam Indian Band through a negotiated

agreement that transfers ownership of a parcel of land

and provides cash for future economic activities.

Coastal First Nations Reconciliation Protocol to34

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 decision making process and the creation

of an Alternative Energy Action Plan for their

traditional territories. The Protocol states, “

The Province acknowledges that the Nations

and First Nations have aboriginal title, rights

and interests within their traditional territories

and this Reconciliation Protocol is a bridging

step to a future reconciliation of those

aboriginal title, rights, and interests with

provincial title, rights, and interests.

Haida Reconciliation Protocol - Kunst'aa Guu –

Kunst'aayah establishes a unique shared decision-35

making process at the strategic level for resource use,

provides a share of resource revenues including

carbon offsets and a community forest tenure and the

opportunity to purchase additional forest tenures.

In addition, the provincial government and First Nations

have been developing a range of mechanisms such as joint

land-use agreements, revenue sharing, and economic

benefits.

<<<<>>>>

In Platinex in 2006, the Court found that the duty to36

consult carried within it a “duty to negotiate”.

The duty to consult, however, goes beyond giving

notice and gathering and sharing information. To be

meaningful, the Crown must make good faith efforts

to negotiate an agreement. The duty to negotiate does

not mean a duty to agree, but rather requires the

Crown to possess a bona fide commitment to the

principle of reconciliation over litigation. The duty to

negotiate does not give First Nations a veto; they must

also make bona fide efforts to find a resolution to the

issues at hand.

. . .

Litigation of cases where Aboriginal issues are

involved, whether by means of judicial review or by

way of injunctive relief, does not and will not promote

reconciliation.

Reconciliation will only be achieved by communica-

tion and honest and open dialogue. The parties initial-

ly engaged in consultation with each other, but it did

not continue. It must begin again. The parties must

continue to seek their own resolution of their issues

and concerns.

<<<<>>>>

Mr. Justice Michael Phelan in Dene Tha' First Nation v.

2005 MBCA 22 (CanLII)33

34

http://www.newrelationship.gov.bc.ca/shared/downloads/cfn_bc

_reconciliation_framework.pdf

35

http://www.newrelationship.gov.bc.ca/shared/downloads/haida_r

econciliation_protocol.pdf

Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation,36

2006 CanLII 26171 (ON S.C.)



Canada (Minister of Environment) in 2006 advanced the37

proposition that the honour of the Crown can be triggered

in cases where the fiduciary duty trigger cannot be

utilized.

The major difference between the fiduciary duty and

the honor of the Crown is that the latter can be

triggered even where the Aboriginal interest is

insufficiently specific to require that the Crown act in

the Aboriginal group’s best interest (that is, as a

fiduciary). In sum, where an Aboriginal group has no

fiduciary protection, the honor of the Crown fills in to

insure the Crown fulfills the section 35 goal of

reconciliation of “the pre-existence of aboriginal

societies with the sovereignty of the Crown.”

In assessing whether the Crown has fulfilled its duty

of consultation, the goal of consultation – which is

reconciliation – must be firmly kept in mind. The goal

of consultation is not to be narrowly interpreted as the

mitigation of adverse effects on Aboriginal rights

and/or title. Rather, it is to receive a broad interpreta-

tion in light of the context of Aboriginal-Crown

relationships: the facilitation of reconciliation of the

pre-existence of Aboriginal peoples with the present

and future sovereignty of the Crown.

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

forward by a First Nations people.

. . .

Consultation is not consultation absent the intent to

consult. Consultation cannot be meaningful if it is

inadvertent or de facto. Consultation must represent

the good faith effort of the Crown (reciprocated by the

First Nation) to attempt to reconcile its sovereignty

with pre-existing claims of rights or title by the First

Nation.

<<<<>>>>

In 2006, in a strongly-worded dissenting decision in

McDiarmid Lumber Ltd. v. God's Lake First Nation ,38

writing for himself and Justices Fish and Abella, Mr.

Justice Binnie gave “reconciliation” an additional

objective – remediation of dispossession:

The history of Indian peoples in North America has

generally been one of dispossession, including

dispossession of their pre-European sovereignty, of

their traditional lands, and of distinctive elements of

their cultures. Of course, arrival of new settlers also

brought considerable benefits. The world has changed

and with it the culture and expectations of aboriginal

peoples have changed, as they have for the rest of us.

Yet it has been recognized since before the Royal

Proclamation of 1763 . . . that at some point the

process of dispossession has to stop. Accordingly,

even in periods when federal government policies

favoured assimilation, which is to say for most of the

first century of Canada’s existence, Parliament’s

legislative policy was to protect reserves and their

contents as a sanctuary for those Indians who wished

to stay in their own communities and adhere to their

own cultures. The promise in Treaty No. 5 of

agricultural supplies is a 19th and 20th century

recognition of the need to ameliorate the effects of

dispossession.

In my view, whatever legislative measures flow out of

Parliament’s recognition of the impact of that

dispossession, and the desire for reconciliation of

aboriginal and non-aboriginal peoples arising from

that situation, should apply as much to bands

dispossessed without a treaty as to those with whom

treaties were made. [emphasis added]

<<<<>>>>

In his 2007 Tsilhqot’in decision, the late Mr. Justice39

D.H. Vickers set out a partial listing of the challenges and

tragedies which had been faced by the Tsilhqot’in Nation

over recent history. He added that dimension to the task of

reconciliation:

The present Canadian community is now faced with

the challenge of acknowledging past wrongs and of

building a consensual and lasting reconciliation with

Aboriginal people. Trials in a courtroom have the

inevitable downside of producing winners and losers.

My hope is that this judgment will shine new light on

the path of reconciliation that lies ahead.

Thus in writing his judgment, he said, “Because the Court

is engaged in the broader process of reconciliation, I have

departed from the usual practice and expressed my views

2006 FC 1354 (CanLII)37

2006 SCC 58, [2006] 2 S.C.R. 846, 38

Tsilhqot'in Nation v. British Columbia, 2007 BCSC 170039

(CanLII)



on some issues that might not have been addressed but for

the nature of these proceedings.

“Important work lies ahead for the provincial and

federal governments and Tsilhqot’in people. In that

regard, there will have to be compromises on all sides

if a just and lasting reconciliation is to be achieved.

Justice Vickers wrote an entire chapter of his Reasons for

Decision on “Reconciliation”. In it, he canvassed the

jurisprudence, and spoke frankly of his own hopes for the

future.

Throughout the course of the trial and over the long

months of preparing this judgment, my consistent

hope has been that, whatever the outcome, it would

ultimately lead to an early and honourable

reconciliation with Tsilhqot’in people. After a trial of

this scope and duration, it would be tragic if

reconciliation with Tsilhqot’in people were postponed

through seemingly endless appeals. The time to reach

an honourable resolution and reconciliation is with us

today.

Black’s Law Dictionary, 8th ed., defines reconciliation

as: “Restoration of harmony between persons or

things that had been in conflict”. The relationship

between Aboriginal and non-Aboriginal Canadians

has a troubled history. Fuelled by the promise of s.

35(1), the early part of this century has brought

significant changes in government policies at both the

provincial and federal levels. Thus, there is a kindling

of hope and expectation that a just and honourable

reconciliation with First Nations people will be

achieved by this generation of Canadians.

Unfortunately, the initial reluctance of governments to

acknowledge the full impact of s. 35(1) has placed the

question of reconciliation in the courtroom – one of

our most adversarial settings. Courts struggle with the

meaning of reconciliation when Aboriginal and

non-Aboriginal litigants seek a determination

regarding the existence and implications of Aboriginal

rights.

Lloyd Barber, speaking as Commissioner of the Indian

Claims Commission, is quoted on this issue:40

It is clear that most Indian claims are not simple

issues of contractual dispute to be resolved

through conventional methods of arbitration and

adjudication. They are the most visible part of the

much, much more complex question of the

relationship between the original inhabitants of

this land and the powerful cultures which moved

in upon them.

Courts are obliged to address this complex question in

the context of their constitutional obligations. David

Stack describes the nature of this obligation in “The

Impact of the RCAP on the Judiciary: Bringing

Aboriginal Perspectives into the Courtroom”: 41

The courts’ opportunity to advance the larger

vision of justice [recognition of Aboriginal rights

and self-government] comes from their

constitutional obligation to interpret and enforce

the Constitution, specifically s. 35(1). . .

These words leave the courts with a wide

discretion to protect, define, and recognize the

rights of Aboriginals. In many cases, this gives

courts the unenviable task of determining the kind

of relationships that rights-bearing Aboriginals are

to have with the larger non-Aboriginal society.

In tracing the jurisprudence, Justice Vickers then places

his finger directly on the problem which has been

identified earlier in this essay:

The Court is clearly concerned with developing a

theory of reconciliation that accords with Canada’s

identity as a constitutional democracy. However, the

majority’s link between its theory of reconciliation

and the justification of infringements test described in

Van der Peet and Gladstone would appear to

effectively place Aboriginal rights under a Charter s. 1

analysis.

As McLachlin J. points out, this is contrary to the

constitutional document, and arguably contrary to the

objectives behind s. 35(1).

The result is that the interests of the broader

Canadian community, as opposed to the

constitutionally entrenched rights of Aboriginal

peoples, are to be foremost in the consideration of

the Court. In that type of analysis, reconciliation

does not focus on the historical injustices suffered Report of the Royal Commission on Aboriginal Peoples:

40

Looking Forward, Looking Back, vol. 1 (Ottawa: Supply and

Services Canada, 1996) at p. 203, quoting A Report: Statements

and Submissions (Ottawa: Queen’s Printer, 1977) at p. 2. (1999) 62 Sask. L. Rev. 471, at para. 44 (QL):41



by Aboriginal peoples. It is reconciliation on terms

imposed by the needs of the colonizer.

Justice Vickers quoted Lisa Dufraimont, in “From

Regulation to Recolonization: Justifiable Infringement of

Aboriginal Rights at the Supreme Court of Canada”:42

Like the broadening test for justification of

infringement it informs, the discussion of

reconciliation in Gladstone and Delgamuukw suggests

that Aboriginal rights must give way when they

conflict with public goals and interests. This idea of

reconciliation is simply not a plausible articulation of

the purpose of s. 35(1). Governments do not

recognize and affirm minority rights for the benefit of

the majority. Rather, the purpose of s. 35(1), as

suggested in Sparrow, is remedial. Aboriginal rights

have been constitutionalized precisely in order to

promote a just settlement for Aboriginal peoples by

strengthening and legitimizing their claims against the

Crown.

Justice Vickers saw that “in an ideal world,

“the process of reconciliation would take place outside

the adversarial milieu of a courtroom. This case

demonstrates how the Court, confined by the issues

raised in the pleadings and the jurisprudence on

Aboriginal rights and title, is ill equipped to effect a

reconciliation of competing interests. That must be

reserved for a treaty negotiation process. Despite this

fact, the question remains: how can this Court

participate in the process of reconciliation between

Tsilhqot’in people, Canada and British Columbia in

these proceedings?

Justice Vickers found remarks of Gordon Christie on this

issue in “Aboriginality and Normativity, Judicial

Justification of Recent Developments in Aboriginal

Law” as being “particularly thought provoking and43

helpful”:

What role, in particular, should the judiciary be

playing in this matter? The way forward is clear

enough, if unpalatable to the judiciary. A Section

One-like approach to justifying legislative interference

with Aboriginal rights should never have been

contemplated. The judiciary simply cannot justify this

change to the law as it applies to Aboriginal peoples

and their rights.

Appeals to the need for the application of the rule of

law are empty, as are notions that the Court requires

such an approach to operate appropriately in a

balanced constitutional democracy. As unpleasant as

the resulting situation may be, Aboriginal rights, at

this point in the process of reconciliation, must be

accorded the sort of legal protection they demand –

that of ‘sure and unavoidable’ rights.

These would be the sorts of rights which operate to

protect essential Aboriginal interests – in living

according to the good ways, knowledge of which has

been handed down from generation to generation.

The practical outcome of this should be clear – this

would bring the governments of Canada to the

negotiating table, and would give Aboriginal peoples

the sort of strength they need to work out a fair

accommodation, a resolution of the ills caused by

centuries of colonialism.

This is as it should be, for from the perspective of the

theory and principles underlying the superstructure of

Canadian society and Canadian law there is no other

way to work out an appropriate place for Aboriginal

peoples in contemporary society.

For Canada to advance to maturity, for the social

compact to welcome within all those currently living

within Canada’s geographic boundaries, Aboriginal

peoples must be able to bargain their way into a fair

constitutional contract.

This can only be accomplished with recognition on the

Canadian side of the table of the position occupied by

Aboriginal peoples: they come to these negotiations

in the same state they were in 500 years ago, as

organized societies existing ‘prior’ to the assertion of

Crown sovereignty, societies organized according to

separate and distinct conceptions of the good and of

how to lead good lives.

Justice Vickers recognized the problem he faced:

The Aboriginal interests considered by the courts are

necessarily confined to the pleadings. The court must

also take into account the interests and needs of the

broader society which are not confined to the

pleadings. This is what the test of justification

requires. Regrettably, the adversarial system restricts

the examination of Aboriginal interests that is needed

to achieve a fair and just reconciliation.

(2000) 58 U.T. Fac. L. Rev. (QL) at para. 24:42

(2002) 17 No. 2 C.J.L.S. 41 at pp. 69-70.43



In this context, Justice Vickers referred to an article by

Professor Brian Slattery entitled “The Metamorphosis of

Aboriginal Title”. 44

In this article, Professor Slattery argues for the

“Principles of Recognition and Reconciliation”. He

notes at p. 283 that “reconciliation must strike a

balance between the need to remedy past injustices

and the need to accommodate contemporary interests.”

I agree entirely with the views expressed by Professor

Slattery at p. 286:

In other words, section 35 does not simply

recognize a static body of aboriginal rights, whose

contours may be ascertained by the application of

general legal criteria to historical circumstances

— what we have called historical rights.

Rather, the section recognizes a body of

generative rights, which bind the Crown to take

positive steps to identify aboriginal rights in a

contemporary form, with the participation and

consent of the Indigenous peoples concerned.

Professor Slattery points out at p. 281 that

reconciliation cannot be achieved by the current

process of translating an historical right into one that

corresponds with a modern common law right. He

writes, “such a process artificially constrains and

distorts the true character of aboriginal title and risks

compounding the historical injustices visited on

Indigenous peoples”.

This case serves as an example of that conclusion. I

fear, as he foretold, that “[f]ar from reconciling

Indigenous peoples with the Crown,” the conclusions I

am driven to reach seem more “likely to exacerbate

existing conflicts and grievances”: Slattery at p. 281.

Professor Slattery further argues that historical title

“provides the point of departure for any modern

inquiry and a benchmark for assessing the actions of

colonial governments and the scope of Indigenous

dispossession”: Slattery at pp. 281 282.

In his view, a number of “Principles of Reconciliation

govern the legal effect of aboriginal title in modern

times.” He writes that these principles:

… take as their starting point the historical title of

the Indigenous group, … but they also take into

account a range of other factors, such as the

subsequent history of the lands in question, the

Indigenous group’s contemporary interests, and

the interests of third parties and the larger society.

So doing, they posit that historical aboriginal title

has been transformed into a generative right,

which can be partially implemented by the courts

but whose full implementation requires the

recognition of modern treaties.

He continues by suggesting that the actions of courts

have the potential to diminish the possibility of

reconciliation ever occurring. He concludes at p. 282:

… the successful settlement of aboriginal claims

must involve the full and unstinting recognition of

the historical reality of aboriginal title, the true

scope and effects of Indigenous dispossession, and

the continuing links between an Indigenous people

and its traditional lands. So, for example, to

maintain that “nomadic” or “semi-nomadic”

peoples had historical aboriginal title to only a

fraction of the ancestral hunting territories, or to

hold that aboriginal title could be extinguished

simply by Crown grant, is to rub salt into open

wounds.

However, by the same token, the recognition of

historical title, while a necessary precondition for

modern reconciliation, is not in itself a sufficient

basis for reconciliation, which must take into

account a range of other factors. So, for example,

to suggest that historical aboriginal title gives rise

to modern rights that automatically trump third

party and public interests constitutes an attempt to

remedy one grave injustice by committing

another.

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 and others like it run the risk of rubbing salt

into open wounds.

The narrow role this court can play in defining

Tsilhqot’in Aboriginal rights in the Claim Area lies in

an application of the jurisprudence to the facts of this

case. I can only hope that it will assist the parties in

finding a contemporary solution that will balance

Tsilhqot’in interests and needs with the interests and

needs of the broader society.

(2006) 85 Can. Bar Rev. 255.44



The application of Professor Slattery’s “Principles of

Recognition and Reconciliation” may assist in this

process. At pp. 283-284, Professor Slattery suggests

that the “Principles of Recognition” should have

certain basic characteristics:

1) They should acknowledge the historical reality

that “when the settlers came, the Indians were

there, organized in societies and occupying the

land as their forefathers had done for centuries,”

as Judson J. observed in the Calder case. They

should not draw arbitrary distinctions between

“settled”, “nomadic”, and “semi-nomadic”

peoples but accept that all of the Indigenous

peoples in Canada had historical rights to their

ancestral homelands — the lands from which they

drew their material livelihood, social identity, and

spiritual nourishment — regardless whether they

had developed conceptions of “ownership,”

“property,” of “exclusivity,” and without forcing

their practices into conceptual boxes derived from

English or French law.

2) They should take account of the long history of

relations between Indigenous peoples and the

British Crown, and the body of inter-societal law

that emerged from those relations.

3) They should draw inspiration from fundamental

principles of international law and justice,

principles that are truly universal, and not

grounded simply in rules that European imperial

powers formulated to suit their own convenience,

such as the supposed “principle of discovery”.

4) They should envisage the continuing operation

of customary law within the Indigenous group

concerned. At the same time, they should explain

the way in which the collective title of an

Indigenous group relates to the titles of other

Indigenous groups and to rights held under the

general land system.

This is, of course, not a task for a court. However, in

the context of treaty negotiation, it strikes me as a

convenient starting point. Recognition that Aboriginal

people have historical rights to their ancestral

homelands regardless of whether they had developed

conceptions of “ownership,” “property,” or

“exclusivity” quickly moves the debate to the real

question: what interests are at stake and how are they

to be reconciled?

Professor Slattery further describes the “Principles of

Reconciliation”, as follows at pp. 284-285:

1) They should acknowledge the historical rights

of Indigenous peoples to their ancestral lands

under Principles of Recognition, as the essential

starting point for any modern settlement.

2) They should explain how historical aboriginal

rights were transformed into generative rights

with the passage of time, and explain the rise of

third party and other societal interests.

3) They should draw a distinction in principle

between the “inner core” of generative aboriginal

rights that may be implemented without

negotiation in modern times, and a “penumbra” or

“outer layer” that needs to be articulated in

treaties concluded between the Indigenous people

and the Crown.

4) They should provide guidelines governing the

accommodation of rights and interests held by

third parties within the historical territories of

Indigenous peoples.

5) They should create strong incentives for

negotiated settlements to be reached within a

reasonable period of time.

I confess that early in this trial, perhaps in a moment

of self pity, I looked out at the legions of counsel and

asked if someone would soon be standing up to admit

that Tsilhqot’in people had been in the Claim Area for

over 200 years, leaving the real question to be

answered. My view at this early stage of the trial was

that the real question concerned the consequences that

would follow such an admission. I was assured that it

was necessary to continue the course we were set

upon. My view has not been altered since I first raised

the issue almost five years ago.

At the end of the trial, a concession concerning an

Aboriginal hunting and trapping right in the Claim

Area was made by both defendants. As I have already

noted, that concession brings with it an admission of

the presence of Tsilhqot’in people in the Claim Area

for over 200 years. This leaves the central question

unanswered: what are the consequences of this

centuries-old occupation in the short term and in the

long term, for Tsilhqot’in and Xeni Gwet’in people?



I have come to see the Court’s role as one step in the

process of reconciliation. For that reason, I have

taken the opportunity to decide issues that did not

need to be decided. For example, I have been unable

to make a declaration of Tsilhqot’in Aboriginal title.

However, I have expressed an opinion that the parties

are free to use in the negotiations that must follow.

What is clear to me is that the impoverished view of

Aboriginal title advanced by Canada and British

Columbia, characterized by the plaintiff as a “postage

stamp” approach to title, cannot be allowed to pervade

and inhibit genuine negotiations. A tract of land is not

just a hunting blind or a favourite fishing hole.

Individual sites such as hunting blinds and fishing

holes are but a part of the land that has provided

“cultural security and continuity” to Tsilhqot’in

people 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

ultimately defined and sustained them as a people.

The recognition of the long-standing presence of

Tsilhqot’in people in the Claim Area is a simple,

straightforward acknowledgment of an historical fact.

Given this basic recognition, how are the needs of a

modern, rural, Indigenous people to be met? How can

their contemporary needs and interests be balanced

with the needs and interests of the broader society?

That is the challenge that lies in the immediate future

for Tsilhqot’in people, Canada and British Columbia.

Justice Vickers concluded:

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.

<<<<>>>>

Also in 2007, Mr. Justice Lemieux of the Federal Court

added to the increasing judicial criticism of the apparent

policy of the federal government to litigate always,

consult only if ordered to do so. The case is Tzeachten

First Nation v. Canada (Attorney General).45

Mr. Justice Lemieux wrote with regard to federal motions

to disallow a First Nation application for judicial review

because the application was made more than 30 days after

the decision was made:

The Applicants have persuaded me that they have

made out a reasonable explanation for delaying their

application. When they became aware of the transfer

of the lands by DND to CLC, they sought consultation

rather than litigation. They asked for consultation with

CLC, Treasury Board, DND only to be sidetracked.

They then sought relief through a representative action

filed in the B.C. Supreme Court but were denied

access on jurisdictional grounds. Shortly after the B.C.

Court of Appeal rendered its decision, the Applicants

instituted this proceeding in the Federal Court.

. . . time and time again the Courts have stated that

negotiated resolutions are superior to litigated

outcomes in the process of reconciling Crown

sovereignty with prior aboriginal occupation. The

Applicants should not be penalized for seeking

consultations rather than litigation.

<<<<>>>>

In 2007, in Cook v. The Minister of Aboriginal Relations

and Reconciliation, Madam Justice Garson wrote of the46

Province of British Columbia having a “constitutional

imperative” to engage in reconciliation:,

“The power of the Crown to enter into treaties may be

its natural person power to contract, but the basis for

doing so is its constitutional imperative to take steps to

“[reconcile] … the pre-existence of aboriginal

societies with the sovereignty of the Crown”: Haida at

para. 17. As MacLachlin C.J.C. wrote at para. 20 of

Haida, “Where treaties remain to be concluded, the

honour of the Crown requires negotiations leading to a

just settlement of aboriginal claims.”

<<<<>>>>

In 2008, in R. v. Kapp, the Supreme Court of Canada47

invoked s. 25 of the Constitution Act, 1982 as part of the

reconciliation process. As Justice Bastarache put it, that

section serves the purpose of protecting the rights of

aboriginal peoples where the application of the Charter

protections for individuals would diminish the distinctive,

collective and cultural identity of an aboriginal group. As

to reconciliation,

s. 25 reflects the notions of reconciliation and

2007 FC 1131 (CanLII)45

2007 BCSC 1722 (CanLII)46

2008 SCC 41, [2008] 2 S.C.R. 48347



negotiation present in the treaty process and

recognized by the previous jurisprudence of this

Court: Haida Nation, Taku River. Section 25 is a

necessary partner to s. 35(1); it protects s. 35(1)

purposes and enlarges the reach of measures needed to

fulfill the promise of reconciliation.

<<<<>>>>

In 2009, in Brokenhead First Nations v. Canada, Mr.48

Justice Douglas Campbell devoted a section of his

Reasons for Decision to “Reconciliation”. Seeing

implementation of Treaty as a part of the process of

reconsiliation, he cited with favour a publication by the

Treaty Commissioner for Saskatchewan, noting that it49

was a helpful observation in understanding the importance

of a non-litigious engagement between Aboriginal People

and government when making decisions which directly

affect Aboriginal Treaty rights:

In law, as both the Haida and Mikisew cases

emphasize, reconciliation is a “process,” and that

process does not end with the making of a treaty. The

process carries on through the implementation of that

treaty and is guided by a duty of honourable dealing.

The very nature of the treaties is to establish mutual

rights and obligations. Fulfilling treaties is not a

one-way street. Accordingly, the honour of Treaty

First Nations is also at stake in the treaty

implementation process. As the Supreme Court of

Canada has stated, “At all stages, good faith on both

sides is required.”

Mr. Justice Campbell also said, “It is fair to say that the

negotiation of Land Entitlement Agreements under Treaty

No. 1 was a process of reconciliation between the interests

and ambitions of Aboriginal People and the Federal and

Manitoba Crown.”

<<<<>>>>

The Gitxaala Nation’s Argument

In Lax Kw’alaams Indian Band v. Canada (Attorney

General), the Gitxaala Nation had status as an50

intervenor. Lax Ka’alaams appealed the trial decision to

the B.C. Court of Appeal. That court sustained the trial

judge in January 2010 and rejected the Gitxaala

argument. It is believed that notice of application for leave

to appeal has been filed with the Supreme Court of

Canada.

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

been substantially changed by a new “standard of life”

approach that was first enunciated in dissent by

McLachlin J. (as she then was) in the trilogy, first “took

root” in Marshall (1999) and was fully adopted by the

Court in Mitchell v. M.N.R.

[67] It will be recalled that in Marshall (1999), the

Court was asked to construe the Mi’kmaq treaties of

1760-1 under which the Mi’kmaq had been promised

access to “necessaries” through trade in wildlife. (The

Mi’kmaq did not assert any Aboriginal right outside

the treaties.) The Crown argued that the so-called

“truckhouse” clause in the treaties was a time-limited

response to a temporary problem that was now

essentially spent. (Para. 54.) Binnie J. for the

majority of the Court rejected that proposition and

equated the treaty right to “necessaries” to what

Lambert J.A. had described in Van der Peet as a

“moderate livelihood”. (Para. 59.) Binnie J.

continued:

... Bare subsistence has thankfully receded over

the last couple of centuries as an appropriate

standard of life for aboriginals and

non-aboriginals alike. A moderate livelihood

includes such basics as “food, clothing and

housing, supplemented by a few amenities”, but

not the accumulation of wealth (Gladstone, supra,

at para. 165). It addresses day-to-day needs. This

was the common intention in 1760. It is fair that it

be given this interpretation today.

The distinction between a commercial right and a

right to trade for necessaries or sustenance was

discussed in Gladstone, supra, where Lamer C.J.,

speaking for the majority, held that the Heiltsuk of

British Columbia have “an aboriginal right to sell

herring spawn on kelp to an extent best described

as commercial” (para. 28). This finding was based

on the evidence that “tons” of the herring spawn

on kelp was traded and that such trade was a

central and defining feature of Heiltsuk society.

2009 FC 982 (CanLII)48

Treaty Implementation: Fulfilling the Covenant, Office of the49

Treaty Commissioner, Saskatoon, 2007, pp. 127 – 128.

2009 BCCA 593 (CanLII)50



McLachlin J., however, took a different view of

the evidence, which she concluded supported a

finding that the Heiltsuk derived only sustenance

from the trade of the herring spawn on kelp.

“Sustenance” provided a manageable limitation on

what would otherwise be a free-standing

commercial right. She wrote at para. 165:

Despite the large quantities of herring spawn

on kelp traditionally traded, the evidence does

not indicate that the trade of herring spawn on

kelp provided for the Heiltsuk anything more

than basic sustenance. There is no evidence in

this case that the Heiltsuk accumulated wealth

which would exceed a sustenance lifestyle

from the herring spawn on kelp fishery.

[Emphasis added.]

In this case, equally, it is not suggested that

Mi'kmaq trade historically generated “wealth

which would exceed a sustenance lifestyle”. Nor

would anything more have been contemplated by

the parties in 1760.

Catch limits that could reasonably be expected to

produce a moderate livelihood for individual

Mi'kmaq families at present-day standards can be

established by regulation and enforced without

violating the treaty right. In that case, the

regulations would accommodate the treaty right.

Such regulations would not constitute an

infringement that would have to be justified under

the Badger standard. [At paras. 59-61.]

[68] Mr. Robbins on behalf of the Gitxaala Nation

submits that this reasoning departs substantially from

the trilogy and “signals a refined approach to

characterizing the extent of trading-based rights by

way of the purpose (ie., standard of life) served by the

trading practice,” replacing what he describes as a

“murky scale of trade” basis. I would not normally

have equated purpose with ‘standard of life’, but more

importantly, the majority in Marshall (1999) did not

indicate, in my respectful view, an intention of

departing from the framework of analysis established

by the trilogy or of changing its position with respect

to the dissenting reasons of Lambert J.A. in Van der

Peet. As we have seen, Marshall (1999) was a treaty

case, and the treaty gave the claimants the promise of

access to “necessaries” through trade in wildlife. The

Court was addressing a different issue than arose in

the cases discussed above, and in that context, the

Court seems to have suggested the “social test” had a

different significance.

. . .

[70] Again, I am unable to agree with Mr. Robbins

that Mitchell signals a sea change from the Court’s

previous approach and its replacement by one that

characterizes the extent of trading-based rights

according to the “standard of life” achieved by the

practice or activity. I see the categorization of trade,

or any other activity in question, according to whether

it is aimed at feeding oneself or one’s people, aimed at

obtaining items to be used for ceremonial occasions,

aimed at accumulating private or communal wealth, or

aimed at participation in a large-scale market, as

concerned with purpose, and as consistent with a

principled approach to Aboriginal culture.

The Supreme Court of Canada may have the opportunity

to deal with this issue.

<<<<>>>>

So Where Does That Leave Us?

The deep solution is to convince federal and provincial

governments to put all conflicts (including those now

before the courts) into negotiation, and turn to litigation

only when negotiations are irremediably unsuccessful.

Success in this proposition is likely to require politicians

to feel empowered enough that they will instruct

government legal counsel to take this approach, and insist

that the policy be followed. It is less probable that success

can be expected by government lawyers convincing

politicians that the lawyers should be engaged at

negotiating tables rather than in courts.

If a case does go (or return to) litigation, there are two

options (and undoubtedly more) which can be considered

in legal strategy:

stick with the early cases in the evolution of the

concept of reconciliation (a la Van der Peet) and

continue to argue as to whether a certain custom was

central and integral to the culture of a people prior to

contact by Europeans etc. etc This approach almost

guarantees everything will be so embroiled and

tangled that by the time the argument is ready to move

on to Mikisew and Haida, those latter cases will be

rendered to be of little use.



Or,

start with the precepts of Mikisew and Haida and more

recent thinking about reconciliation, which will likely

mean recourse to Van der Peet is not required. This

means First Nations plaintiffs and applicants are

arguing Haida, the governments are arguing Van der

Peet – and generally the decisions of the Court are

written either in support of or in answer to the First

Nation positions. It is almost that the substantive

dialogue is not between the adversaries, but between

the First Nations and the Courts.

<<<<>>>>

To close this essay on reconciliation, a conundrum:

if First Nations were to be successful in achieving

symmetry and parity in the reconciliation process,

acting on the basis of rights and jurisdiction in the

same way that the Crown acts on the basis of rights

and jurisdiction, Canadian courts may no longer be of

assistance.

As the Supreme Court of Canada said in Reference re

Secession of Quebec, 51

The reconciliation of the various legitimate

constitutional interests is necessarily committed to the

political rather than the judicial realm precisely

because that reconciliation can only be achieved

through the give and take of political negotiations.

To the extent issues addressed in the course of

negotiation are political, the courts, appreciating their

proper role in the constitutional scheme, would have

no supervisory role.

It may be that judicial supervision of a bilateral

symmetrical reconciliation process will require the

invention of a new institution which is capable of bridging

between the two parties in a manner that both parties

consider to be fair and unbiased.

How would such a new institution be devised? As the

Supreme Court pointed out later in the Secession decision,

amending the rules of the game can only be accomplished

“through a process of negotiation which ensures that there

is an opportunity for the constitutionally-defined rights of

all the parties to be respected and reconciled.”

Negotiation would be unsuccessful, however, if the

federal party entered it with its current policies and legal

position or if First Nations would set out an immutable

non-negotiable position. A paraphrasing of the Supreme

Court in its Reference re Secession decision might have

this result:

We hold that First Nations could not purport to invoke

a right of self-determination such as to dictate the

terms of having a bilateral relationship with the

sovereignty of the Crown. That would not be a

negotiation at all. No negotiations could be effective if

their ultimate is cast as an absolute legal entitlement.

Such a foregone conclusion would undermine the

obligation to negotiate and render it hollow.

However, we are equally unable to accept the reverse

proposition, that a clear expression of First Nations to

have a different relationship of their “sovereignty”

with respect to the claim of the federal government

that its sovereignty trumps any First Nation claim. The

continued existence and operation of the Canadian

constitutional order cannot remain indifferent to the

clear expression of peoples who occupied Canada

before the arrival of Europeans and who claim that the

sovereignty they enjoyed at that time remains in effect.

A political majority that does not act in accordance

with the underlying constitutional principles we have

identified puts at risk the legitimacy of the exercise of

its rights.

Negotiations would be necessary to address the interests

of the federal government, of Quebec and the other

provinces, and other participants, as well as the rights of

all Canadians both within and outside Quebec.

Undertaking that task seems to be too far into the future to

be contemplated now.

<<<>>>

[1998] 2 S.C.R. 21751



APPENDIX

The Evolution of the Definition of “Reconciliation”

in Canadian Jurisprudence

a) reconcile the Hurons' need to protect the exercise of

their customs and the desire of the British conquerors to

expand (Justice Lamer in Sioui, 1990);

b) reconcile the competing interests at the time the Treaty

was made (Justice Lamer in Sioui);

c) reconcile federal power and First Nation rights,

something which should be done voluntarily (Sparrow);

d) reconciling federal power with federal duty by

demanding the justification of any government regulation

that infringes upon or denies aboriginal rights (Sparrow);

e) reconciliation is the process by which the Indian culture

can be preserved and by which other Canadians may be

assured that their interests, developed over 125 years of

nationhood, can also be respected (Justice McFarlane in

B.C. Court of Appeal in Delgamuukw);

f) reconciliation of aboriginal societies with the broader

political community of which they are a part (Chief

Justice Lamer in Delgamuukw);

g) reconciliation is the balancing of aboriginal rights with

such interests as “the pursuit of economic and regional

fairness, and the recognition of the historical reliance

upon, and participation in, the fishery by non-aboriginal

groups . . . In the right circumstances, such objectives are

in the interest of all Canadians and, more importantly, the

reconciliation of aboriginal societies with the rest of

Canadian society may well depend on their successful

attainment.” (Gladstone);

h) reconciliation of the existence of distinctive aboriginal

societies prior to the arrival of Europeans with the

assertion of Crown sovereignty over that territory as a

means of maintaining the critical and integral aspects of

those societies (Gladstone)

i) reconciliation of aboriginal prior occupation with the

assertion of the sovereignty of the Crown (Chief Justice

Lamer in Van der Peet);

j) reconciliation of those distinctive features that need to

be acknowledged and reconciled with the sovereignty of

the Crown (Chief Justice Lamer in Van der Peet);

k) reconciliation not only of prior aboriginal occupation,

but also a prior legal regime giving rise to aboriginal

rights which persist, absent extinguishment, with

European settlement and sovereignty and to do so in a way

that provides the basis for a just and lasting settlement of

aboriginal claims consistent with the high standard which

the law imposes on the Crown in its dealings with

aboriginal peoples (Justice McLachlin in dissent in

Delgamuukw);

.l) reconciliation is the promise embodied in s. 35(1)

(Chief Justice McLachlin in Mitchell);

m) reconciliation is the accomplished through the means

of the duty to consult and accommodate potentially

conflicting rights (B.C. Supreme Court in Gitxsan and

Other First Nations);

n) reconciliation is a process mandated by s. 35(1) in

which the Crown acts honourably, not interpreting that

term narrowly or technically, but given full effect (Chief

Justice McLaughlin in British Columbia (Minister of

Forests) v. Okanagan Indian Band);

o) reconciliation through treaties of pre-existing

Aboriginal sovereignty with assumed Crown

sovereignty (Chief Justice McLachlin in Haida Nation);

p) reconciliation acknowledges the historical injustices

suffered by Aboriginal peoples and places limits on the

ability of the Crown to alter the content of the right

claimed in the pre-proof stage (Justice Vickers on Haida

in Tsilq'otin);

q) reconciliation underpins s. 35 of the Constitution Act

1982, and for it to have meaning, there is a broader duty

on the Crown with respect to Aboriginal relations than

that imposed by a fiduciary relationship (Justice Binnie in

Wewaykum Indian Band);

r) reconciliation of aboriginal peoples and non-aboriginal

peoples and their respective claims, interests and

ambitions (Justice Binnie in Mikisew Cree);

s) in the long process of reconciliation, treaty-making is an

important stage, but it is only as stage -- the treaty is not a

complete discharge of the duty arising from the honour of

the Crown, but a rededication of it (Justice Binnie in

Mikisew Cree;

t) reconciliation is the overall objective of the modern law

of treaty and aboriginal rights, and consultation is key to

achievement of this objective -- the signing of Treaty 8

was not the end of reconciliation, but the beginning

(Justice Binnie in Mikisew Cree);



u) the principle of reconciliation over litigation is a bona

fide commitment required of the Crown -- it is not

promoted by litigation of cases and rather requires honest

and open dialogue (Platinex 2006);

v) reconciliation of the pre-existence of aboriginal

societies with the sovereignty of the Crown is the goal of

s.35 (Justice Phelan in Dene Tha);

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);

x) reconciliation: the time to reach an honourable

resolution and reconciliation is with us today (Justice

Vickers in Tsilq'otin);

y) reconciliation: the Province of British Columbia has a

"constitutional imperative" to engage in reconciliation

(Justice Garson, B.C. Supreme Court in Cook v Minister

of Aboriginal Relations and Reconciliation);

z) reconciliation and negotiation are reflected in s. 25 of

the Constitution Act 1982 -- it protects s.35(1) purposes

and enlarges the reach of measures needed to fulfill the

promise of reconciliation (Justice Bastarache, R. v. Kapp,

Supreme Court of Canada);

aa) reconciliation is a process and that process does not

end with the making of a treaty -- the process carries on

through the implementation of that treaty and is guided by

a duty of honourable dealing; (quoted by Justice Douglas

Campbell in Brokenhead First Nations from Treaty

Commission of Saskatchewan).

<<<<>>>>

genealogy of reconcilliation

Documents