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Abstract
This article examines the fluctuating character of legal and political uses of reconciliation, paying particular attention to the Supreme Court of Canada’s (SCC) jurisprudence over the last five years concerning Aboriginal title and treaty rights. This article aims to provide a fuller conception of the sociocultural relations of power entrenched within the legal domain by engaging with the logics and representations of reconciliation found in the Court’s decisions and respective hearing transcripts.
Notes
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1 Trudeau, “Prime Minister Justin Trudeau Delivers a Speech to the Assembly of First Nations Special Chiefs Assembly.” Gatineau, Quebec: December 8, 2015. https://pm.gc.ca/eng/news/2015/12/08/prime-minister-justin-trudeau-delivers-speech-assembly-first-nations-special-chiefs.
2 Department of Finance, Equality and Growth, 127.
3 See Christie, “Judicial Justification,” 41–71; McCrossan, “Shifting Judicial Conceptions,” 155–79.
4 R. v. Sparrow, [1990] 1 S.C.R. 1075 (“Sparrow”).
5 R. v. Van der Peet, [1996] 2 SCR 507 (“Van der Peet”). Indeed, in Van der Peet a majority of the SCC determined that such reconciliation was the fundamental purpose underpinning constitutional entrenchment of Aboriginal and treaty rights. See Van der Peet, para. 31.
6 Blackburn, “Producing Legitimacy,” 622; see also Bhandar, “Anxious Reconciliation(s),” 834–6; Coulthard, Red Skin, White Masks, 22.
7 Borrows, “Domesticating Doctrines,” 660–1; see also Vermette, “Dizzying Dialogue,” 65.
8 Walters, “Morality,” 501; Manuel and Derrickson, Reconciliation Manifesto, 202.
9 McCrossan, “Shifting Judicial Conceptions,” 155–79; Walters, “Morality,” 470–520.
10 Wyile, “Towards a Genealogy,” 622.
11 See McCrossan, “Contaminating and Collapsing,” 20–39.
12 McCrossan, “Shifting Judicial Conceptions.”
13 Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (“Tsilhqot’in Nation”).
14 Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48 (“Grassy Narrows”).
15 See McIvor and Gunn, “Canada’s Shoes,” 147; Wilkins, “Among the Ruins,” 117.
16 See Fine, “Supreme Court of Canada to Keep Records of Deliberations Secret for at Least 50 Years.”
17 Section 35(1) of the Constitution Act, 1982 reads as follows: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed” Constitution Act, 1982 being, Schedule B to the Canada Act 1982 (UK), c 11.
18 Under the express terms of Treaty 3, the Anishinaabe were acknowledged as possessing the “right to pursue their avocations of hunting and fishing throughout the tract surrendered … saving and excepting such tracts as may, from time to time, be required or taken up for settlement, mining, lumbering or other purposes by Her Government of Her Dominion of Canada …” The entire text of the treaty is available online: https://www.aadnc-aandc.gc.ca/eng/1100100028675/1100100028679.
19 See McCrossan and Ladner, “Eliminating Indigenous Jurisdictions,” 411.
20 Wilkins, “Among the Ruins,” 92.
21 Tsilhqot’in Nation, para. 131.
22 See R. v. Morris, [2006] 2 SCR 915 (“Morris”), para. 90–1.
23 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 (“Delgamuukw”), para. 178.
24 Tsilhqot’in Nation, para. 139–41.
25 Grassy Narrows, para. 53.
26 Borrows, “Durability of Terra Nullius,” 735–6.
27 Borrows, “Canada’s Colonial Constitution,” 32.
28 McIvor and Gunn, “Canada’s Shoes,” 147.
29 See Borrows, “Canada’s Colonial Constitution,” 17–38; McIvor and Gunn, “Canada’s Shoes,” 149.
30 For a discussion of the ways in which Aboriginal interests in land could be protected through the framework of section 35 (and Crown fiduciary duties) rather than through the application of IJI, see Hoehn, “Back to the Future,” 129–30.
31 Tsilhqot’in Nation, para. 147.
32 McCrossan and Ladner, “Eliminating Indigenous Jurisdictions,” 418.
33 See also Borrows, “Durability of Terra Nullius,” 724.
34 Christie, “Who Makes Decisions,” 776.
35 Christie, “Who Makes Decisions,” 776.
36 See McCrossan and Ladner, “Eliminating Indigenous Jurisdictions,” 411–31.
37 Appellant’s Factum, 44–5, emphasis in original; see also Tsilhqot’in Transcripts, 26–7.
38 Delgamuukw, para. 157.
39 Tsilhqot’in Transcripts, 31–3.
40 Tsilhqot’in Transcripts, 189–90.
41 Jhappan, “Federal-Provincial Power-Grid,” 155–84.
42 Tsilhqot’in Nation, para. 138.
43 Tsilhqot’in Nation, para. 139–40.
44 Sparrow, 1105.
45 Sparrow, 1106.
46 Tsilhqot’in Transcripts, 42.
47 Delgamuukw, para. 147–8; see also para. 156.
48 Appellant’s Factum, 63, emphasis in original.
49 This position was advanced by Robert Janes, representing the Appellants Andrew Keewatin Jr., Joseph William Fobister, and all other members of Grassy Narrows First Nation. See Grassy Narrows Transcripts, 5.
50 This understanding of Treaty 3 was advanced by Zachary Davis, representing the Intervener Grand Council of Treaty #3. See Grassy Narrows Transcripts, 63.
51 See also Ladner, “Take 35,” 288–9.
52 Similarly, Bruce McIvor, representing the Appellant Leslie Cameron, and all other members of Wabauskang First Nation, referred to a “process of reconciliation” that includes an ongoing treaty relationship or partnership with the federal government. See Grassy Narrows Transcripts, 46.
53 Tsilhqot’in Transcripts, 157; for a similar argument, see also Respondent’s Factum, 46.
54 Tsilhqot’in Transcripts, 159.
55 Tsilhqot’in Transcripts, 163, emphasis added.
56 Tsilhqot’in Transcripts, 166.
57 Tsilhqot’in Transcripts, 172.
58 Grassy Narrows Transcripts, 118.
59 Grassy Narrows Transcripts, 117–8.
60 Grassy Narrows Transcripts, 121.
61 Grassy Narrows Transcripts, 135.
62 MNR Factum, 32–3.
63 Ladner, “Take 35,” 282.
64 Henderson, “Implementing the Treaty Order,” 53.
65 R. v. Sioui [1990] 1 SCR 1025, 1044.
66 Appellants’ Factum, 10.
67 See also Factum of the Respondent (Third Party) The Attorney General of Canada, para. 3.
68 Henderson, “Empowering Treaty Federalism,” 258.
69 Grassy Narrows Transcripts, 67–8.
70 Grassy Narrows Transcripts, 68.
71 Grassy Narrows Transcripts, 43.
72 Grassy Narrows, para. 30.
73 McCrossan and Ladner, “Eliminating Indigenous Jurisdictions,” 411–31.
74 Henderson, “Empowering Treaty Federalism,” 241-329; Borrows, “Canada’s Colonial
Constitution,” 17–38.
75 See Grassy Narrows, para. 50.
76 See Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388 (“Mikisew Cree”), para. 28–9, 49. For further discussion, see McCrossan, “Eviscerating Historic Treaties,” 607–8.
77 Grassy Narrows Transcripts, 154–5.
78 Grassy Narrows Transcripts, 165.
79 Grassy Narrows Transcripts, 164.
80 For further discussion surrounding the decision, see McCrossan, “Eviscerating Historic Treaties,” 611–13.
81 Factum of the Respondent Resolute FP Canada Inc, 16.
82 Liberal Party, “Environmental Assessments,” https://www.liberal.ca/realchange/environmental-assessments/.
83 Trudeau, House of Commons Debates, 1555.
84 Trudeau, House of Commons Debates, 1545–55.
85 Trudeau, House of Commons Debates, 1555–600.
86 In this case a majority of the SCC determined that the Crown’s duty to consult with Indigenous peoples does not apply to the legislative process.
87 Factum of the Respondents, 15.
88 Article 38 states that “States, in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration.” See UNDRIP, 13.
89 Factum of the Respondents, 32.
90 See UNDRIP, 8, emphasis added.
91 See Borrows, “Canada’s Colonial Constitution.”
92 Trudeau, House of Commons Debates, 1550.
93 See UNDRIP, 8, emphasis added.
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Michael McCrossan
Michael McCrossan is an instructor in the Department of History and Politics at the University of New Brunswick in Saint John, New Brunswick, Canada.